Sethi (Migration) - [2023] AATA 1433

Sethi (Migration) [2023] AATA 1433 (8 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Judy Sethi
VISA APPLICANTS:  Ms Wendy Duncan
Ms Srishti Duncan
CASE NUMBER:  2301942
HOME AFFAIRS REFERENCE(S):          OSF2016/049514
MEMBER:Maxina Martellotta
DATE:8 May 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 08 May 2023 at 11:12am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– the person with the medical condition is a member of the family unit of the resident – review applicant’s mother has been receiving full time assistance from nurses and carers – the required assistance has been reasonably obtained from an aged care residential service – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.221, 116.321

CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 15 December 2022 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 visas on 26 October 2016. At that time, Class BO contained three subclasses: 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). The primary visa 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. Relevant to this matter, the primary criteria to be met includes cl 116. 221(1), which requires that at the time of decision the primary visa applicant is a carer of an Australian relative of the review applicant. ‘Carer’ is defined in reg 1.15AA.
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 delegate also refused to grant the visa to the secondary visa applicant who had applied for grant of a carer visa on the basis she is a member of the family unit of the primary visa applicant. As the primary visa applicant did not satisfy the criteria, the delegate concluded that the secondary visa applicant did not satisfy cl 116.321 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 21 April 2023 to give evidence 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 Sethi (Migration)

Details

AGLC: Sethi (Migration) [2023] AATA 1433
Case: [2023] AATA 1433
Decision Date: 8 May 2023

CaseChat Overview and Summary

This matter concerned an application for Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer), brought by Indian citizens, a primary visa applicant and her daughter, sponsored by the primary visa applicant's aunt, an Australian citizen. The care recipient was the aunt's mother, who required assistance due to a medical condition. The core dispute revolved around whether the primary visa applicant qualified as a "carer" under the Migration Regulations 1994, and whether the care recipient's needs could not reasonably be met by other means. The decision was made by Maxina Martellotta, a Member of the Tribunal.

The Tribunal was required to determine whether the primary visa applicant met the criteria for a carer visa, specifically whether she was a relative of the Australian resident, whether a valid certificate established the resident's medical condition and need for ongoing assistance, and crucially, whether such assistance could not reasonably be provided by any other relative who was an Australian citizen, permanent resident, or eligible New Zealand citizen, or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the primary visa applicant was a "remaining relative" as per clause 115.211.

The Tribunal found that while the primary visa applicant was a relative of the Australian resident and a valid certificate indicated the resident's medical condition and need for assistance, the primary visa applicant did not meet the requirements of clause 115.211 as she had other relatives residing in India. This meant she was not a "remaining relative" of the Australian resident. Consequently, the Tribunal affirmed the decision not to grant the visas.

Orders

Orders of the court

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Background

Background to the litigation

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)).Background The review applicant acquired Australian citizenship in 1991. She was born in July 1952. The review applicant has sponsored the primary visa applicant. The primary visa applicant was born in August 1988. The secondary visa applicant is the primary visa applicant’s daughter; she was born in June 2005. The visa applicants are both Indian citizens. The care recipient is the review applicant’s mother, the primary visa applicant’s grandmother and the secondary visa applicant’s great grandmother. She is an Australian citizen and was born in October 1926.Whether the primary visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the primary 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. Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires that the primary visa 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 this case the resident for the purposes of this provision is the review applicant who is in the aunt of the primary visa applicant. This relationship is confirmed by documents including birth certificates provided to the Department and to the Tribunal. As such, the Tribunal is satisfied the primary 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 a certificate, which meets the requirements of reg 1.15AA(2), states that:· the Australian relative (resident) or a member of the family unit of the resident 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. As noted, the person requiring care with the medical condition, is the mother of the review applicant (who is also identified as the resident). The tribunal is satisfied and finds that the person with the medical condition is a member of the family unit of the resident. 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 (the CVAC) dated 28 June 2016.

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)).Background The review applicant acquired Australian citizenship in 1991. She was born in July 1952. The review applicant has sponsored the primary visa applicant. The primary visa applicant was born in August 1988. The secondary visa applicant is the primary visa applicant’s daughter; she was born in June 2005. The visa applicants are both Indian citizens. The care recipient is the review applicant’s mother, the primary visa applicant’s grandmother and the secondary visa applicant’s great grandmother. She is an Australian citizen and was born in October 1926.Whether the primary visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the primary 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. Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires that the primary visa 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 this case the resident for the purposes of this provision is the review applicant who is in the aunt of the primary visa applicant. This relationship is confirmed by documents including birth certificates provided to the Department and to the Tribunal. As such, the Tribunal is satisfied the primary 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 a certificate, which meets the requirements of reg 1.15AA(2), states that:· the Australian relative (resident) or a member of the family unit of the resident 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. As noted, the person requiring care with the medical condition, is the mother of the review applicant (who is also identified as the resident). The tribunal is satisfied and finds that the person with the medical condition is a member of the family unit of the resident. 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 (the CVAC) dated 28 June 2016.

Decision

Reasons for decision

The Tribunal finds that the primary visa applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa because she has relatives who reside in the same country (India) as the primary visa applicant, according to the visa application, which includes her mother, father and brother. This information indicates that the primary visa 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.Maxina MartellottaMemberATTACHMENTMigration 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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