Soluk (Migration)

[2021] AATA 3942

Soluk (Migration) [2021] AATA 3942 (8 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosalina Soluk

CASE NUMBER:  1904417

HOME AFFAIRS REFERENCE(S):          CLF2018/42784

MEMBER:Andrew George

DATE:8 October 2021

PLACE OF DECISION:  Darwin

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 08 October 2021 at 10:03pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – close relative – nephew-in-law not a relative within meaning of regulations – no medical assessment certificate obtained or provided with application – request for referral for ministerial consideration not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351(1)
Migration Regulations 1994 (Cth), r 1.03, 1.15AA(1)(b), (2), Schedule 2, 836.111, 836.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2019 to refuse to grant the review applicant, Ms Soluk, an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Ms Soluk applied for the visa on 9 April 2018. 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, Ms Soluk is seeking to satisfy the criteria for the grant of a Subclass 836 visa.

3. 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 836.212 where Ms Soluk claims to be the carer of an Australian relative. The delegate refused to grant the visa on the basis that cl 836.212 was not met.

4. The application was made with the understanding of Ms Soluk providing assistance to Mr Karl Jurkijevic to provide direct assistance to Mr Ivan Jurkijevic.

5. For clarity, Ms Soluk’s nephew-in-law is Mr Karl Jurkijevic through his wife, Mrs Fara Jurkijevic (Theresia). Mrs Jurkijevic is Ms Soluk’s niece. Mr Ivan Jurkijevic is Mr Karl Jurkijevic’s brother.

6. Materially, the delegate found:[1]

   Evidence has been provided that Karl Jurkijevic is an Australian Citizen. However, consideration must also be given as to whether Karl Jurkijevic is a relative of the applicant.

   More specifically, as this is an application for a Carer visa, the applicant must demonstrate that Karl Jurkijevic is (in accordance with the definition of ‘relative’ at Regulation 1.03) a ‘close relative’ of her or her grandparent, grandchild, aunt, uncle, niece, nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

   Under the relevant legislation, for Mr Jurkijevic to be considered a ‘close relative’ of the applicant, the applicant must demonstrate that he is her spouse or de facto partner; or her child, parent, brother or sister; or her step-child, step-brother or step-sister.

   Documents provided at time of lodgement of this application demonstrate that Karl Jurkijevic is the nephew-in-law of the applicant by virtue of his marriage to the applicant’s niece.

   [1] Decision Record/3.

7. Under r 1.03, a ‘nephew-in-law’ is not a ‘close relative’ or a ‘relative’.

8. After several adjournments, largely caused by COVID-19 disruption, the applicant appeared before the Tribunal on 26 August 2021. The Tribunal received evidence from Mrs Jurkijevic in her statutory declaration dated 19 August 2021, Mr Karl Jurkijevic in his statutory declarations dated 19 August 2021 and 26 August 2021, and Mr Gerasimos Koukouvas in his statutory declaration dated 13 August 2021. The Tribunal had the benefit of a report from Dr Zoe Woodward, Neurologist, Royal Darwin Hospital, dated 4 December 2019. It also had the benefit of an undated letter from Mr Steve Vitone, CEO Carers NT. The Tribunal notes the representations of Ms Kezia Purick, MLA, as contained in her letter of 23 August 2021.

9. Mr Teng of Ward Keller submitted comprehensive written submissions prior to the hearing. Sensibly, these written submissions concede that the Tribunal’s affirmation of the decision under review is expected. Also, a referral for Ministerial intervention was requested and the Tribunal expressed some sympathy for this approach at the hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the applicant has claimed to be the ‘carer’

11. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. 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.

12. The term ‘relative’ is defined in r 1.03 of the Regulations. Ms Soluk is not a ‘relative’ of either Mr Karl Jurkijevic or Mr Ivan Jurkijevic within the meaning of r 1.03. Therefore, at the time of application the applicant did not satisfy the requirements of cl 836.212.

13. Accordingly, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    Ministerial Intervention

14. The applicant has requested that this matter be referred to the Minister personally for reconsideration under s 351 of the Act. Such a referral is only made in exceptional circumstances.

15. Upon review of the material before it, the Tribunal notes some unique circumstances that arise in this matter. These are outlined as follows:

    a.Mr Karl Jurkijevic, an Australian citizen, is the primary carer for his older brother, Mr Ivan Jurkijevic, and has been so since his youth.[2]

    b.Mr Ivan Jurkijevic suffers a long-term and permanent neurological disability that may deteriorate.[3]

    c.The applicant, Ms Rosalina Soluk, is Mr Karl Jurkijevic’s aunt-in-law through his wife Mrs Jurkijevic. The applicant was Mrs Jurkijevic’s primary caregiver from infancy. Mrs Jurkijevic is employed full-time by Northern Territory Correctional Services and is unable to care for Mr Ivan Jurkijevic.[4]

    d.Mr Karl Jurkijevic operates his own business and requires assistance caring for his brother.[5]

    e.Ms Soluk is ‘willing and able’[6] to ‘provide substantial and continuing assistance’[7] of the kind needed,[8] which cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia.[9]

    [2] Statutory Declarations of Mr Karl Jurkijevic of 19 August 2021 and 26 August 2021.

    [3] ibid; Report from Dr Zoe Woodward, Neurologist, Royal Darwin Hospital, dated 4 December 2019.

    [4] Statutory Declaration of Mrs Fara Jurkijevic (Theresia) dated 19 August 2021.

    [5] Statutory Declarations of Mr Karl Jurkijevic of 19 August 2021 and 26 August 2021.

    [6] Xiang v MIMIA [2004] FCAFC 64.

    [7] Perera v MIMIA [2005] FCA 1120.

    [8] Departmental File/9; Statutory declaration of Mr Gerasimos Koukouvas dated 13 August 2021.

    [9] Letter from Mr Steve Vitone, CEO Carers NT, undated.

16. From the facts outlined above, the Tribunal is sympathetic to the compassionate circumstances that arise in this case. Indeed, these circumstances may cause a continuing hardship to accrue to Mr Karl Jurkijevic and his family unit.

17. In considering whether to refer this matter to the Minister for consideration under s 351(1) of the Act, the Tribunal has considered the question: ‘but for’ the technical requirements of r 1.03 and Ms Soluk’s lack of status as a ‘relative’, would this application have been remitted? This is relevant to the question of whether an unfair or unreasonable result might arise in this unique case.

18. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

19. For a certificate to meet r 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, or issued by a specified health provider in relation to a review of such an opinion.

20. In a matter such as this it would be usual to obtain a certificate from Bupa Medical Visa Services and attach it to the application. Unfortunately, no such certificate is before the Tribunal.

21. The Tribunal notes the efforts Mr Karl Jurkijevic made to obtain a health assessment from Royal Darwin Hospital in March 2018 and that he was advised by Bupa to travel to another hospital.[10] Given the remoteness of the Territory, the difficulty of that advice may not have been clear to Bupa. In any event, no certificate seems to have been obtained.

    [10] Departmental File/67-68.

22. The predicament for the Tribunal is that in the absence of valid certificate it is unable to ascertain Mr Karl Jurkijevic’s impairment rating. Without this evidence, Ms Soluk’s application could not have met the requirements of r 1.15AA(2) and would have been unsuccessful in any event.

23. In the absence of an impairment rating the Tribunal does not consider the circumstances of this case to be sufficiently exceptional to make the referral as sought. Nevertheless, it remains open to the applicant to seek Ministerial intervention herself.

24. DECISION

25. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Andrew George
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (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.