Wong (Migration) - [2021] AATA 2997

Wong (Migration) [2021] AATA 2997 (9 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jim Kean Wong
CASE NUMBER:  1824924
HOME AFFAIRS REFERENCE:               CLF2017/32855
MEMBER:Rosa Gagliardi
DATE:9 August 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa 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 09 August 2021 at 11:42am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – medical assessments and certification outdated – clear frailty and unreasonableness of requirement for further assessment – assistance reasonably provided by other relatives or obtained from service providers – other relatives’ health conditions or family and work – cost of in-home or nursing home care – individual circumstances and subjective wishes – bond with applicant and care already provided – applicant’s wife, children and business in home country – not attempting to achieve a migration outcome – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cls 836.111, 836.211, 836.212, 836.221
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
MIBP v Nguyen [2017] FCAFC 149
Perera v MIMIA [2005] FCA 1120
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 Home Affairs on 16 August 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 28 April 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.836.211 and cl.836.221.
The delegate refused to grant the visa on the basis that cl. 836.211 was not met because he/she was not satisfied that the applicant was the carer of his mother, Mrs Nancy Chew.
The applicant appeared before the Tribunal on 9 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (caree – person requiring the care) as well as from the sponsor’s sister, Ms Maureen Rutten.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF…

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 Wong (Migration)

Details

AGLC: Wong (Migration) [2021] AATA 2997
Case: [2021] AATA 2997
Decision Date: 9 August 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to migrate to Australia to care for their mother, who was an Australian citizen. The Tribunal, presided over by Member Rosa Gagliardi, was required to determine whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had claimed to be the carer of an Australian relative, and whether the applicant was, in fact, a carer at the time of the decision. This involved assessing whether the applicant met the cumulative requirements of regulation 1.15AA, including being a relative of the Australian resident, the existence of a medical condition causing impairment, the need for ongoing assistance, and crucially, whether such assistance could not reasonably be provided by other relatives or obtained from Australian service providers.

The Tribunal found that the applicant had consistently claimed to be the carer of their Australian citizen mother, satisfying the initial claim requirement. It also determined that the applicant was a relative of the Australian resident, fulfilling regulation 1.15AA(1)(a). However, the decision focused on the requirement for a valid medical certificate under regulation 1.15AA(1)(b). The Tribunal noted that the existing medical assessments and certifications were outdated. While acknowledging the applicant's stated intention and existing bond with their mother, the Tribunal concluded that the requirement for further, up-to-date medical assessment was clear and reasonable, particularly given the applicant's wife, children, and business in their home country, and the potential for assistance from other relatives or service providers.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The remittal was made with the direction that certain criteria, specifically clause 836.221 of Schedule 2 to the Regulations, were met, but with the understanding that further assessment of the remaining criteria, particularly concerning the currency and validity of medical evidence and the reasonableness of obtaining assistance, was necessary.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 EVIDENCEWhether 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 his mother. 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. The applicant has consistently claimed to be his mother’s carer, at time of application and continues to maintain this position at the time of decision. Furthermore, the person requiring the care is a relative as defined in Regulation 1.03 as she is the applicant’s mother who is an Australian citizen. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.Whether the applicant is a carer The Tribunal notes that the elements of reg.1.15AA are cumulative. If the applicant does not meet one element, there is no need to consider the remaining considerations. 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.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the 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 the present case, the Australian relative is identified as the applicant’s mother. This matter is not in contention. Therefore, as the applicant is son of the Australian relative, the 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 that a certificate, which meets 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. 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, or issued by a specified health provider in relation to a review of such an opinion.

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 application for an Other Family (Residence) (Class BU) visa 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.Rosa GagliardiMemberATTACHMENTMigration 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

Full text does not contain this section.