Nikolic (Migration) - [2022] AATA 4756

Nikolic (Migration) [2022] AATA 4756 (13 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nikola Nikolic
REPRESENTATIVE:  Ms Danijela Stojanovic (MARN: 0958278)
CASE NUMBER:  1903873
HOME AFFAIRS REFERENCE(S):          CLF2017/120840
MEMBER:Jane Marquard
DATE:13 December 2022
PLACE OF DECISION:  Sydney
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 836.212 of Schedule 2 to the Regulations; and
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 13 December 2022 at 11:54am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – wider family’s health conditions and caring responsibilities – availability of welfare, hospital, nursing or community services – cultural and language barriers – health and aged care service limitations – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
Lin v MIMIA [2004] FCA 606
Nguyen v MICMA [2019] FCA 934
Perera v MIMIA [2005] FCA 1120
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Xiang v MIMIA [2004] FCAFC 64
Yee Joy v MIBP [2015] FCCA 2537
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 5 February 2019 to refuse to grant the review applicant, Mr Nikola Nikolic, an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The sponsor of this visa application, Mr Krsta Nikolic, is a man from Serbia, aged 72 years old. He arrived in Australia in 1998 on a tourist visa and could not return to Serbia as war broke out and international flights were cancelled. He was later granted a working visa in Australia. His wife joined him 15 years later. He suffered a work injury in 2015 which, according to a psychiatric report in 2018, was the cause of a number of mental health problems.
The review applicant is his son, Nikola, aged 34, who currently lives with his parents and claims that he is carer for his father.
The review applicant applied for the visa on 11 December 2017.
The delegate refused to grant the visa on the basis that Regulation 1.15AA(1)(e) was not met. This regulation requires that assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
It was not necessary to hold…

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 Nikolic (Migration)

Details

AGLC: Nikolic (Migration) [2022] AATA 4756
Case: [2022] AATA 4756
Decision Date: 13 December 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Mr Nikola Nikolic, the review applicant, an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The sponsor for the visa application was Mr Krsta Nikolic, the review applicant's father, who is an Australian citizen. The delegate's refusal was based on the applicant's failure to satisfy Regulation 1.15AA(1)(e) of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the assistance Mr Krsta Nikolic required due to his medical condition could reasonably be provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or obtained from welfare, hospital, nursing, or community services in Australia. This criterion is a mandatory requirement for the grant of a Subclass 836 visa.

The Tribunal found that the applicant had claimed to be the carer of his father at the time of application and was a carer at the time of the decision, satisfying clauses 836.212 and 836.221 of Schedule 2 to the Regulations. However, the Tribunal concluded that the delegate had not adequately considered the limitations and availability of alternative care options in Australia, including the potential impact of cultural and language barriers, and the specific limitations of health and aged care services. Consequently, the Tribunal remitted the application for reconsideration by the Minister.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2019 to refuse to grant the review applicant, Mr Nikola Nikolic, an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The sponsor of this visa application, Mr Krsta Nikolic, is a man from Serbia, aged 72 years old. He arrived in Australia in 1998 on a tourist visa and could not return to Serbia as war broke out and international flights were cancelled. He was later granted a working visa in Australia. His wife joined him 15 years later. He suffered a work injury in 2015 which, according to a psychiatric report in 2018, was the cause of a number of mental health problems. The review applicant is his son, Nikola, aged 34, who currently lives with his parents and claims that he is carer for his father. The review applicant applied for the visa on 11 December 2017. The delegate refused to grant the visa on the basis that Regulation 1.15AA(1)(e) was not met. This regulation requires that assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia. It was not necessary to hold a hearing in this matter as the Tribunal was able to determine the matter on the papers in accordance with s 360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.RELEVANT LAW AND QUESTIONS FOR DETERMINATION At the time of application, 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 review applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The purpose of a carer visa is to allow a carer of an Australian relative with a medical condition causing a significant level of impairment to provide assistance of the kind required. The criteria for a Subclass 836 visa are set out in Schedule 2 to the Regulations. The key issue in this case is whether the assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia (reg 1.15 AA(1)(e)). The regulations must be satisfied at both the time of application and decision.FINDINGSAPPLICANT CLAIMS TO BE CARERWhether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that at the time of application the applicant claims to be the carer of an Australian relative. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative. In the present case, the visa application was made on the basis that the review applicant is the carer of his father, Mr Krsta Nikolic, who is an Australian citizen, and a sponsor for the visa application.

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 836.212 and cl 836.221 of Schedule 2 to the Regulations.Jane MarquardMemberATTACHMENTMigration 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

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