Markovska (Migration) - [2022] AATA 3605

Markovska (Migration) [2022] AATA 3605 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Zagorka Markovska
Mr Blagoja Markovski
REPRESENTATIVE:  Mr Vincent Cheng (MARN: 0959348)
CASE NUMBER:  2018064
HOME AFFAIRS REFERENCE(S):          CLF2018/191772
MEMBER:Russell Matheson
DATE:18 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 18 October 2022 at 3:54pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot be reasonably provided by other specified relatives or obtained from service providers – other relatives’ family, work, study, incapacity or own caring commitments – small amount of in-home medical care – limited attempts to investigate service providers – nursing home placement possible but not reasonable – cultural and language requirements and preferences – applicant’s ongoing care – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e), (f), Schedule 2, cl 836.221
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Jajo v MIBP [2013] FCCA 1554
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 December 2020 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 16 August 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.
The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met includes cl 836.221. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant is the carer of an Australian relative.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Markovska (Migration)

Details

AGLC: Markovska (Migration) [2022] AATA 3605
Case: [2022] AATA 3605
Decision Date: 18 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Mrs Zagorka Markovska's application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The dispute centred on whether Mrs Markovska met the definition of a "carer" as required by the Migration Regulations 1994. The delegate had previously determined that certain criteria within the definition of "carer" were not met, leading to the refusal of the visa application.

The Tribunal was required to determine if Mrs Markovska satisfied the criteria for being a "carer" under regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether she was a relative of the resident (her aunt, Ms Danica Kostandinov) and whether a valid Carer Visa Assessment Certificate (CVAC) had been provided, demonstrating the resident's medical condition, resulting impairments, and ongoing need for direct assistance for at least two years. The Tribunal also needed to consider the broader requirements of the "carer" definition, including the inability to obtain assistance from other relatives or service providers, and the applicant's willingness and ability to provide substantial and continuing assistance.

The Tribunal found that Mrs Markovska was indeed a relative of the resident, satisfying regulation 1.15AA(1)(a). Furthermore, the Tribunal accepted the provided CVAC, dated 9 January 2022, as meeting the requirements of regulation 1.15AA(1)(b). This certificate confirmed the resident's medical conditions, the resulting impairments affecting her ability to attend to daily life, and her ongoing need for direct assistance for at least two years. The Tribunal noted that the delegate's decision had not fully considered the remaining criteria for the visa.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criteria under clause 836.221 of Schedule 2 to the Regulations, as defined by regulation 1.15AA, were met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:·cl.836.221 of Schedule 2 to the Regulations.Russell MathesonMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:(a)the applicant is a relative of the resident; and(b)according to a certificate that meets the requirements of subregulation (2):(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and(e)the assistance cannot reasonably be:(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or(ii)obtained from welfare, hospital, nursing or community services in Australia; and(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.(2)A certificate meets the requirements of this subregulation if:(a)it is a certificate:(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and(ii)signed by the medical adviser who carried it out; or(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant (Mrs Zagorka Markovska) is the carer of the resident (Ms Danica Kostandinov) at the time of this decision. For the purposes of this application, the resident is the sponsor. The Tribunal received a copy of the delegate’s decision with the application for review. The delegate determined that reg 1 15AA(1)(e)(ii) and (f) within the definition of ‘Carer’ at reg 1.15AA were not met at time of its decision. The delegate found for those reasons cl 836.221 of Schedule 2 was not met.Whether the applicant has claimed to be the ‘carer’ Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant to be a “relative” of the resident (within the meaning of reg 1.03). In the present case, the resident is identified as the applicant’s aunt. Based on the evidence, the Tribunal accepts that the resident is the aunt of the applicant. Therefore, the applicant is a relative of the resident within the meaning of r.1.03 and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the resident or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has, and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC or certificate) dated 9 January 2022 in respect of the resident. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that the Australian resident has medical conditions that are causing impairments of her ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the resident has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.