Saini (Migration) - [2023] AATA 3597

Saini (Migration) [2023] AATA 3597 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurpreet Singh Saini
Mrs Rohini Singh
Master Jastej Singh Saini
CASE NUMBER:  1911347
HOME AFFAIRS REFERENCE(S):          CLF2018/13568
MEMBER:Justine Clarke
DATE:19 October 2023
PLACE OF DECISION:  Melbourne
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 19 October 2023 at 5:16pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) visa – assistance cannot reasonably be provided by other relatives or obtained from service providers – only other specified relative a teenaged child – attempts to obtain assistance from providers – applicant willing and able to provide care – current tasks of care – emotional attachment – members of family unit – first and second applicants now divorced – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e)(i), (ii), (f), Schedule 2, cls 836.221, 836.321
CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
Xiang v MIMIA [2004] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 17 April 2019 by a delegate of the Minister for Home Affairs to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 19 February 2018, the applicants, who are nationals of India, applied for the visas.
The first-listed applicant, Mr GS Saini, is the primary visa applicant. At the time of application, it was claimed that the second-listed applicant, Mrs R Singh, was the partner of the primary visa applicant. It is claimed that the third-listed applicant, Master JS Saini, is their son.
The Tribunal notes that, during the course of this review, the primary visa applicant submitted a copy of the divorce order evidencing that the divorce order between the primary visa applicant and the second-listed applicant took effect on 19 August 2023.
At the time that the applicants applied for the visas, 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 this case, the applicants are each 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 include cl 836.221 and…

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 Saini (Migration)

Details

AGLC: Saini (Migration) [2023] AATA 3597
Case: [2023] AATA 3597
Decision Date: 19 October 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The primary visa applicant sought to establish that he was a carer for the resident, who was an Australian permanent resident. The core dispute revolved around whether the primary visa applicant met the criteria for being a carer under regulation 1.15AA of the Migration Regulations 1994, particularly concerning the need for assistance and the inability to obtain it from other sources.

The Tribunal was required to determine whether the primary visa applicant was a "carer" of the resident as defined by regulation 1.15AA(1). This involved assessing whether the applicant was a relative of the resident, whether a valid certificate established a medical condition requiring ongoing direct assistance, and crucially, whether such assistance could not reasonably be provided by other relatives or obtained from Australian service providers. The Tribunal also needed to consider if the applicant was willing and able to provide the necessary assistance.

The Tribunal found that the primary visa applicant and the resident were indeed brothers, satisfying the relative requirement under regulation 1.15AA(1)(a). While the decision text indicates that the Tribunal had more evidence than the initial delegate, it does not detail the specific findings regarding the medical certificate or the attempts to obtain assistance from other sources. However, the Tribunal concluded that the matter should be remitted for reconsideration, directing that criterion 836.221 of Schedule 2 to the Regulations was met. This suggests that while some criteria were satisfied, further consideration was needed on other aspects of the visa application.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The main issue for determination in this case is whether, at the time of this decision, the primary visa applicant is [the resident]’s carer and thus cl 836.221 is met. The Tribunal notes that it has a greater amount of evidence in respect of this issue than what had been before the delegate.Whether the primary visa applicant is a ‘carer’ of ‘the resident’ The ‘chapeau’ or opening line to reg 1.15AA(1) requires an applicant for a visa to be a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen. This person is referred to as ‘the resident’. The primary visa applicant claims that he is the carer of [the resident], who is an Australian permanent resident (‘the resident’). At the hearing, the primary visa applicant told the Tribunal that [the resident] is an Australian permanent resident. The Tribunal notes the certified copy of [the resident]’s Indian passport which is on the Department’s file. One of the pages that has been copied includes the visa label which states ‘permitted to remain in Australia indefinitely’. From the evidence, the Tribunal finds that [the resident] is an Australian permanent resident who is usually resident in Australia. The Tribunal finds that [the resident] is ‘the resident’ in this case.Is the primary visa applicant a relative of the resident? (reg 1.15AA(1)(a)) It is claimed that the primary visa applicant and [the resident] are brothers. The term ‘relative’ is defined in reg 1.03 as a ‘close relative’ (also a defined term in reg 1.03) or other specified relation. The term ‘close relative’ includes a brother. At the hearing, the primary visa applicant said that [the resident] was his full biological brother as they have the same parents. He noted that [the resident]’s birth certificate had been lodged with the Department. The Tribunal has reviewed the documents on the Department’s file. These documents include a certified copy of the primary visa applicant’s birth certificate and a certified copy of pages from [the resident]’s Indian passport. Both documents record the names of their father and their mother. The names of each person’s father and mother are the same. Based on the evidence, the Tribunal is satisfied that the primary visa applicant and [the resident] are brothers. As the primary visa applicant and [the resident] are brothers, the primary visa applicant meets the requirements of reg 1.15AA(1)(a).Does the certificate meet the requirements? (reg 1.15AA(1)(b) and reg 1.15AA(2)) 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; 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 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

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 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.Justine ClarkeMemberATTACHMENTMigration 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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