Zhao (Migration) - [2022] AATA 5239

Zhao (Migration) [2022] AATA 5239 (21 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Dominic Ming Zhe Zhao
VISA APPLICANTS:  Ms Qiuyi Zhao
Mr Cheng Zhu
Mr Runtong Zhu
REPRESENTATIVE:  Mr Christopher Hugh Levingston
CASE NUMBER:  1935514
HOME AFFAIRS REFERENCE(S):          2013/093657 OSF2013/093657
MEMBER:Michael Cooke
DATE:21 December 2022
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 of Schedule 2 to the Regulations

·cl.116.221 of Schedule 2 to the Regulations

Statement made on 21 December 2022 at 2:06pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – certification – ‘member of the family unit’ – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 116.211, 116.221
CASES
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 18 October 2019 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 visa on 3 December 2013. 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). 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 and cl.116.221
The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied that Lehua Zhao continues to be a ‘member of the family unit’ of the resident, Dominic Ming Zhe Zhao under subregulation 1.12 at time of decision. As the person with the medical condition was found to be neither the resident, nor a member of the family unit of the resident, I find that, at time of decision, the applicant was found not meet the requirements of regulation 1.15AA(1)(b)(i) within the definition of ‘carer’ at regulation 1.15AA.
The review applicant appeared before the Tribunal on 21 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review and attended the hearing. The representative has tendered a comprehensive submission to the Tribunal addressing the issue sin…

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 Zhao (Migration)

Details

AGLC: Zhao (Migration) [2022] AATA 5239
Case: [2022] AATA 5239
Decision Date: 21 December 2022

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 claimed to be a 'carer' of their father, Lehua Zhao, who was an Australian relative. The Tribunal was required to determine whether the applicant met the definition of 'carer' as defined in regulation 1.15AA of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the visa applicant had claimed to be a 'carer' of an Australian relative at the time of application, and whether the applicant was a 'carer' of the Australian relative at the time of the decision. This involved assessing whether the applicant was a relative of the Australian relative and whether the necessary certification regarding a medical condition, impairment, and need for assistance was provided.

The Tribunal found that the applicant had indeed claimed to be a carer of an Australian relative, satisfying clause 116.211 of the Regulations. Furthermore, the Tribunal determined that the applicant was a relative of the Australian relative, meeting the requirements of regulation 1.15AA(1)(a). However, the provided text indicates that the assessment of the certification requirements under regulation 1.15AA(1)(b) and subsequent criteria was not fully detailed, leading to the decision to remit the matter.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Regulations were met. The remaining criteria for the Subclass 116 visa were to be considered further.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 of Schedule 2 to the Regulations· cl.116.221 of Schedule 2 to the RegulationsMichael CookeSenior MemberATTACHMENTMigration 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

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 visa applicant meets the definition of ‘carer’ at regulation 1.15AA.APPLICANT CLAIMS TO BE CARERWhether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of the Regulations requires that the visa applicant claims to be a ‘carer’ of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a ‘carer’ of Lehua Zhao who is the visa applicant’s father. 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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The Tribunal finds that the applicant claimed to be a ‘carer’ of another person (‘caree’) at the time of application and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen - Therefore, at the time of application the visa applicant claimed to be a ‘carer ‘of an Australian relative and satisfies the requirements of cl 116.211.APPLICANT IS A CARERWhether the visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the 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 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 visa applicant’s father. The Tribunal finds that the applicant is a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03 and Movement Records indicate she is ‘usually resident’ in Australia. Therefore, as the visa applicant is the daughter of the Australian relative, the 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 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.