ZHU (Migration) - [2019] AATA 3799

ZHU (Migration) [2019] AATA 3799 (6 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms BAO ZHEN ZHU
VISA APPLICANT:  Mr PENG LI
CASE NUMBER:  1721273
HOME AFFAIRS REFERENCE(S):           2013092501 OSF2013/092501
MEMBER:Justin Owen
DATE:6 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 06 March 2019 at 4:51pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – providing substantial and continuing care to the sponsor – available care from Australian relatives – care from welfare, hospital, nursing or community services – language and wider cultural care preferences – lengthy delay in seeking access to care services – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 116.221; r 1.15
CASES
Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
Hon Anh Vuong v Minister for Immigration & Anor [2013] FCCA 274
Lin & Anor v The Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FCA 606
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 1 September 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 24 June 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 (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.116.221.
The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied that the visa applicant was able to provide substantial and continuing care to the review applicant and that Regulation 1.15AA(1)(f) was met. The delegate found therefore that as the visa applicant was not a carer of an Australian relative and failed to meet clause 116.221.
The review applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband Mr Zi Wei Li and the visa applicant Mr Peng Li. 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 by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that decision under…

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.

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Details

AGLC: ZHU (Migration) [2019] AATA 3799
Case: [2019] AATA 3799
Decision Date: 6 March 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal by a visa applicant against a decision to refuse an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to demonstrate that they were a carer for an Australian relative, providing substantial and continuing care.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a carer visa, as defined by regulation 1.15AA of the Migration Regulations 1994. This involved determining if the required assistance could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered the applicant's claim of needing care and the availability of care from their spouse.

The Tribunal accepted that the applicant had significant health conditions requiring care, which had deteriorated since an initial assessment. However, the applicant's oral testimony revealed that her 85-year-old husband was providing 24-hour care, including assistance with daily living activities. The applicant also stated that her husband was ageing and becoming weak and impatient, and that his care was sometimes inadequate. Crucially, the Tribunal noted that the applicant had a son living in China, which meant she did not meet the criterion of being a "remaining relative" for a Subclass 115 visa, a separate but related visa category mentioned in the decision.

The Tribunal affirmed the decision not to grant the visa. While acknowledging the applicant's need for care, the Tribunal found that the applicant did not satisfy the specific requirements for a Subclass 116 visa, particularly concerning the availability of care from other sources and the applicant's status as a remaining relative.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 r.1.15AA of the Regulations, which is set out in the attachment to this Decision. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia. The Tribunal notes from the departmental file the Carer Visa Certificate Assessment for the review applicant (D1, Folio.95-101). The Certificate dates from 2 May 2013 and was completed by Medibank Health Solutions. The review applicant was assigned a rating of 30. The review applicant was identified as suffering from a range of conditions including ischaemic heart condition and neck of femur fracture with avascular necrosis. The assessment stated she was deemed unfit for surgery for these ailments. The assessment report stated that in order to prevent further deterioration and injury, the review applicant would be a candidate for a full-time carer. A range of other medical documentation supporting this diagnosis and outlining the review applicant’s care needs was provided to the delegate. The review applicant provided the Tribunal with more recent medical evidence including a letter from her registered psychologist Mr Wei Lu (T1, Folio.75) stating the review applicant has been a patient of his since September 2018 and she has been depressed for ten years; and a letter from Dr Donald Lin dated 6 May 2018 (T1, Folio.17) stating that the review applicant has a range of conditions including diabetes, osteoporosis and impaired hearing on top of the aforementioned conditions. The review applicant spoke about her health conditions at the hearing and emphasised the damage to her pelvis that was causing mobility issues as well as her depression. The Tribunal accepts the evidence that the review applicant is in need of care. The Tribunal furthermore accepts that the review applicant’s health condition has deteriorated since her Carer Visa Assessment over five and a half years ago. The review applicant gave oral testimony to the Tribunal. At times she was overcome with emotion in providing oral evidence to the hearing. The review applicant stated that her 85-year-old husband was providing the bulk of her care and support. She said he offers 24-hour care to her and assists with bathing, toileting, eating, shopping and cooking. She said he does everything for her. The review applicant said that her husband is ageing and is becoming weak and impatient. She claimed sometimes he did not care about her and he is unhappy. She said he did not treat her properly and sometimes fed her meals that were worse than dog food.

Decision

Reasons for decision

To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia. In oral evidence to the Tribunal, the visa applicant said he has a son that lives in China. The visa applicant confirmed at the hearing that his son (who was named incorrectly by the delegate in the decision record as a secondary applicant) is not applying to come with Australia. The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Justin OwenSenior 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

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