Valencia (Migration) - [2020] AATA 4756

Valencia (Migration) [2020] AATA 4756 (1 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Lourdes Valencia
VISA APPLICANTS:  Ms Lorna Guerrero
Miss Donnalyn Guerrero
Mr Fernando Tonio
Mr Felangelo Tonio
Mr Carl Jonahsen Guerrero
Miss Angel Guerrero
CASE NUMBER:  1910948
HOME AFFAIRS REFERENCE(S):          OSF2012/041808
MEMBER:Moira Brophy
DATE:1 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.211 and cl.116.221 of Schedule 2 to the Regulations;

With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:
·cl.116.312 of Schedule 2 to the Regulations.

Statement made on 01 September 2020 at 1:45pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Federal Circuit Court remittal – relative of an Australian relative – care provided by community health care providers – available care from Australian relatives – culturally appropriate care required in the family home – limited support from community services – 24-hour assistance required – substantial and continuing assistance – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 116.211, 116.221, 116.311, 116.312; rr 1.03, 1.15
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606
Perera v MIMIA [2005] FCA 1120
Rafiq v MIMIA [2004] FCA 564
Xiang v MIMIA [2004] FCAFC 64
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 12 March 2013 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958.
The visa applicants applied for the visa on 30 April 2012. 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 (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.116.211, cl.116.221 and cl.116.311.
The delegate refused to grant the visas on the basis that cl.116.311 was not met because the delegate was not satisfied on the material provided that assistance to meet the sponsor’s needs could not be reasonably provided by community health care providers in Australia.
On 23 June 2014 the Tribunal (differently constituted) affirmed the decision under review. On 21 November 2016 the matter was remitted by order of the Federal Circuit Court of Australia. On 17 January 2017 the Tribunal (differently constituted) affirmed the decision under review. On 3 May 2017 the Federal…

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 Valencia (Migration)

Details

AGLC: Valencia (Migration) [2020] AATA 4756
Case: [2020] AATA 4756
Decision Date: 1 September 2020

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant, Ms Lorna Guerrero, sought to migrate to Australia to care for her mother, Mrs Valencia, who is an Australian citizen. The dispute centred on whether Ms Guerrero met the definition of a "carer" under the relevant regulations and whether Mrs Valencia's needs could not be reasonably met by community health care providers in Australia.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant, Ms Guerrero, claimed to be a carer of an Australian relative as required by clause 116.211 of the Migration Regulations 1994. Secondly, the Tribunal had to assess whether Ms Guerrero was a "carer" at the time of the decision, as defined by regulation 1.15AA, which involved considering whether she was a relative of the Australian relative and whether she had provided or would provide substantial and continuing assistance.

The Tribunal found that Ms Guerrero satisfied the requirements of clause 116.211, having applied for the visa on the basis that she was a carer of her Australian citizen mother. Furthermore, the Tribunal was satisfied that Ms Guerrero was a "relative" of Mrs Valencia, as she is her daughter, and that Mrs Valencia was an Australian citizen usually resident in Australia. The Tribunal concluded that the elements of regulation 1.15AA were cumulative and that if an applicant failed to meet one element, they could not meet the regulation overall.

Given the findings that the applicant met the criteria under clauses 116.211 and 116.221, the Tribunal remitted the applications for reconsideration by the Minister. The remittal was with the direction that these specific criteria for a Subclass 116 (Carer) visa were met, and that secondary applicants met the criteria under clause 116.312.

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 issue in the present case is whether the applicant is the carer of the sponsor as defined in r.1.15A and whether the sponsor’s needs could not be reasonably provided by community health care providers in Australia. The elements of r.1.15AA are cumulative. If the applicant does not meet an element, then the 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 Carer Visa Assessment Certificate dated 20 August 2020 provided at the request of the Tribunal following the hearing. Whether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of the Regulations requires that the applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is a carer of the review applicant, who is the applicant’s mother. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. There is a copy of the Carer visa application made by Ms Lorna Guerreroand her mother on the Department file. On that application Ms Lorna Guerrero claims to be the carer of her mother who is the sponsor, Mrs Valencia (the caree). The caree is an Australian citizen, as evidenced by the copy of the citizenship certificate provided. Therefore, at the time of application the applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl.116.211.Whether Ms Lorna Guerrero is a ‘carer’ Clause 116.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision. Whether Ms Lorna Guerrero is a relative of the resident – r.1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. The Department file contains identity documents of Ms Lorna Guerrero and her mother. The Tribunal is satisfied on the evidence before it that Mrs Valencia is the mother of Ms Lorna Guerrero and meets the definition of close relative. The Tribunal is also satisfied that Mrs Valencia is an Australian citizen and is ‘usually resident’ in Australia. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03 and meets the requirements of r.1.15AA(1)(a).Certification – r.1.15AA(1)(b)

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 116 visa.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:·cl.116.211 and cl.116.221 of Schedule 2 to the Regulations;With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:· cl.116.312 of Schedule 2 to the Regulations. Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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