Quijano (Migration) - [2021] AATA 4268

Quijano (Migration) [2021] AATA 4268 (19 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Ethelind Quijano
VISA APPLICANTS:  Mr Samuel Jr Ramiterre
Mrs Maricel Ramiterre
Ms Clarisse Ramiterre
Ms Charisse Ramiterre
CASE NUMBER:  1721571
HOME AFFAIRS REFERENCE(S):          2014040047
MEMBER:John Longo
DATE:19 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 19 October 2021 at 10:51am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– assistance can reasonably be provided by the other relatives of the sponsor – review applicant has not explored any options –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 116.211, 116.221

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 Immigration and Border Protection on 13 July 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 16 December 2014. At that time, Class BO contained three subclasses, being Subclass 114 (Aged Dependent Relative), Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.
The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied that the assistance could not reasonably be provided by any other relative of the resident (reg 1.15AA(1)(e)(i)) and also that care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(ii)). The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 5 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant, Mr Samuel Jr Ramiterre. The Tribunal exercised its discretion to hold the hearing by video hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under…

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.

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Details

AGLC: Quijano (Migration) [2021] AATA 4268
Case: [2021] AATA 4268
Decision Date: 19 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by a visa applicant concerning the refusal of an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to migrate to Australia to care for their niece, who is the daughter of the applicant's sister, an Australian permanent resident. The core of the dispute revolved around whether the applicant met the criteria for a carer visa, particularly the requirement that assistance could not reasonably be provided by other relatives or service providers in Australia.

The legal issues before the Tribunal were whether the visa applicant qualified as a 'carer' under regulation 1.15AA of the Migration Regulations 1994, and whether the care recipient's need for assistance could not reasonably be met by other relatives or through various service providers, as stipulated by regulation 1.15AA(1)(e)(ii). The Tribunal also had to consider if the applicant was a 'relative' of the Australian resident and if the necessary certification regarding the care recipient's medical condition and ongoing need for care was met.

The Tribunal found that the visa applicant was a 'relative' of the Australian resident, satisfying regulation 1.15AA(1)(a), as the applicant was the uncle of the care recipient. The Tribunal also considered a Bupa Medical Visa Services Carer Visa Assessment Certificate and a speech language assessment report, which indicated the care recipient had autism spectrum disorder requiring ongoing support. However, the Tribunal ultimately affirmed the decision to refuse the visa. This was because the visa application itself indicated that the applicant had other relatives residing in the Philippines, including his wife's mother and brothers. Consequently, the Tribunal concluded that the applicant was not a 'remaining relative' as required by clause 115.211 of the Migration Regulations, and therefore was unable to meet the eligibility criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the assistance could not reasonably be provided by any other relative of the resident and also whether the care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(ii)). Whether the visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the visa 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. Regulation 1.15AA(1)(a) requires that the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the primary visa applicant’s niece. Evidence of the relationship has been provided and the Tribunal is satisfied that the primary visa applicant (the visa applicant) is the uncle of the ‘close relative’, who is a member of the family unit of the sponsor, the visa applicant’s sister, who is an Australian permanent resident requiring assistance to care for her daughter. Therefore, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a). Therefore, as the visa applicant is the uncle of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 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 Australian relative (resident) or a member of the family unit has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and 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 14/085), or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate dated 15 May 2014. The care recipient is diagnosed with autism spectrum disorder requiring support for deficits in social communication, and restricted, repetitive behaviours. The care recipient’s condition was considered permanent and likely to affect activities of daily living and future schooling and employment. The certificate indicated that the care recipient engages in speech pathology, occupational therapy and paediatric review. A speech language assessment report, dated 23 July 2020, provided to the Tribunal indicates that speech- language pathology appointments are continuing and the review applicant confirmed at the hearing that these are continuing on a fortnightly basis.

Decision

Reasons for decision

The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa because they have relatives who reside in the same country (Philippines) as the visa applicant, according to the visa application, which includes his wife’s mother and brothers. This information indicates that the applicant is not, therefore, a ‘remaining relative’ of the ‘Australian Relative’ and, therefore is unable to meet cl 115.211.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.John LongoMember

Ratio Decidendi

Legal Principle Established

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