SALAZAR MACEDO (Migration) - [2023] AATA 1781

SALAZAR MACEDO (Migration) [2023] AATA 1781 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Monica Carmen Salazar Macedo
Mr Ernesto Mario Chirinos Silva
CASE NUMBER:  1921122
HOME AFFAIRS REFERENCE(S):          CLF2017/64855
MEMBER:Moira Brophy
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 04 May 2023 at 11:36am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance cannot reasonably be provided/obtained – impairment rating of 50 – requires constant supervision with all aspects of daily life – assistance from welfare, hospital, nursing or community services – NDIS package – reasonable enquiries not made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221
CASES
Biyiksiz v MIMIA [2004] FCA 814
Lin v MIMIA [2004] FCA 606
Rafiq v MIMIA [2004] FCA 564
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 24 July 2019 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 20 September 2017. 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 include cl 836.221.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because in the absence of evidence of what assistance may be available to the resident from welfare, hospital, nursing or community services in Australia, the requirements of subreg 1.15AA(1)(e)(ii) were not met, and therefore cl 836.221 was not satisfied.
The applicants Mrs Monica Carmen Salazar Macedo and Mr Ernesto Mario Chirinos Silva appeared before the Tribunal on 2 November 2022 and on 17 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Alexander Mayorca Sanchez who was represented by his mother, Mrs Rosa Lili Mayorca. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicants were represented in relation to the review at the time of hearing but the representative ceased acting for the parties on 24 March 2023.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a national of Peru,…

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 SALAZAR MACEDO (Migration)

Details

AGLC: SALAZAR MACEDO (Migration) [2023] AATA 1781
Case: [2023] AATA 1781
Decision Date: 4 May 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ms Monica Carmen Salazar Macedo against a decision to affirm the refusal of her application for a Subclass 836 (Carer) visa. Ms Macedo sought to migrate to Australia as the carer of her Australian citizen nephew, Mr Alexander Mayorca Sanchez. The core of the dispute revolved around whether Mr Mayorca Sanchez's needs could not reasonably be provided or obtained from other sources, as required by the relevant migration regulations.

The Tribunal was required to determine whether Ms Macedo met the criteria for being a "carer" as defined by regulation 1.15AA of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether Mr Mayorca Sanchez had a physical, intellectual, or sensory impairment that prevented him from attending to the practical aspects of daily life, and whether this impairment would continue for at least two years. Crucially, the Tribunal also had to consider whether it was unreasonable for other adult family members of Mr Mayorca Sanchez, or for Australian welfare, hospital, nursing, or community services, including the National Disability Insurance Scheme (NDIS), to provide the necessary assistance.

The Tribunal reasoned that the elements of regulation 1.15AA were cumulative, meaning that failure to satisfy any one element would result in the application failing. While the Carer Visa Assessment Certificate indicated Mr Mayorca Sanchez had an impairment rating of 50 and required direct assistance for at least two years, the Tribunal found that Ms Macedo had not provided sufficient evidence to demonstrate that reasonable enquiries had been made to obtain assistance from other adult family members or from community services. The delegate's decision had noted the lack of information regarding whether services had been sought from Australian organisations, doctors, hospitals, nursing homes, or other community services, and the Tribunal found this deficiency remained.

Consequently, the Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In response, on 4 August 2022 the applicant provided the following:·A statutory declaration from the father of the sponsor, Mr Oscar Armando Mayorca Poma dated 26 July 2022;·A statutory declaration from Mrs Rosa Lili Mayorca, the mother of the sponsor dated 3 August 2022;·A statutory declaration from Ms Jessica Mayorca, sister of the sponsor dated 26 July 2022;·A statutory declaration from the applicant Ms Monica Carmen Salazar Macedo dated 3 August 2022; ·A statutory declaration from Ms Jeanette Mayorca, sister of the sponsor dated 26 July 2022;·A statutory declaration from Ms Amy Mayorca, sister of the sponsor dated 3 August 2022;·A statutory declaration from Mr Anthony Mayorca, brother of the sponsor dated 3 August 2022;·A statutory declaration from Ms Sylvia Alayna Mayorca, aunt of the sponsor dated 24 July 2022;·A further copy of the sponsor’s CVAC dated 15 November 2021; and·A letter of employment from SydWest Multicultural Services in relation to Mrs Rosa Lili Mayorca dated 19 July 2022.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the carer of the sponsor as defined in reg 1.15A and whether the sponsor’s needs could not be reasonably provided by either other adult family members or by community health care providers in Australia. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the CVAC dated 15 November 2021 provided, which the Tribunal requested prior to the hearing. Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of her nephew, the son of her sister. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. There is a copy of the Carer visa application made by the sponsor, and his aunt, the visa applicant on the Department file. On that application, the applicant claims to be the carer of her nephew, the sponsor Mr Alexander Mayorca (the caree). The caree is an Australian citizen, as evidenced by the copy of citizenship certificate provided. Therefore, at the time of application, the primary visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 836.212.Whether the applicant is a 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.Whether the applicant is a relative of the resident – reg 1.15AA(1)(a)

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant is a national of Peru, born in 1970. She is married and her spouse Mr Ernesto Mario Chirinos Silva is included in the application as a secondary applicant. She arrived in Australia in March 2008 as the holder of an Independent Sector ELICOS (subclass 570) visa valid for 6 months. She was subsequently granted further Student visas in October 2008, April 2009, and October 2012. In April 2013 she was granted a subclass 457 visa valid to 11 April 2017. She lodged the present application in September 2017, on the basis of providing assistance to her Australian citizen nephew, Mr Alexander Mayoca Sanchez who sponsored the application. The sponsor was born in Peru in 1981. He came to Australia on 1 May 1996 after his parents and two sisters had come to Australia. He became an Australian citizen on 23 March 2007. His mother Mrs Rosa Lili Mayorcva is a sister of the applicant. The sponsor lives with his mother and his father, Mr Oscar Mayorca in a home owned by his parents. He has three sisters, Jeanette, Jessica and Amy and he has one brother Anthony. The delegate in her decision dated 24 July 2019 was not satisfied on the evidence that it was unreasonable for the adult relatives of the sponsor to provide the full extent of the assistance he required on a collective or rotational basis. Further the delegate noted that no information was provided to indicate if services had been sought on behalf of the resident from any Australian organisation, doctor or health professional, hospital, nursing home or other community service. Tribunal Proceedings On 29 July 2021, the Tribunal wrote to the applicant and requested an updated Carer Visa Assessment Certificate (CVAC) as a considerable time had elapsed since the previous CVAC had been obtained. The applicant experienced delays in obtaining the CVAC because of lockdowns during the COVID-19 pandemic. The CVAC provided by the applicant and dated 15 November 2021 indicates that the person with the medical condition is the sponsor, Mr Alexander Mayoca Sanchez. It states that he has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to practical aspects of daily life, and assessed him with an impairment rating of 50. The report indicated that the medical condition he has results in a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years. On 23 June 2022 a request was made for further information from the applicant regarding the resident’s relatives, namely his parents, his siblings and his aunt, what assistance they have provided to the sponsor in the past and the assistance they were prepared to offer in the future. The applicant was also requested to provide evidence of any application made to the NDIS and any assistance that had been provided, also evidence of assistance (if any) sought from welfare, hospital, nursing or community services in the previous 18 months.

Ratio Decidendi

Legal Principle Established

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