Zivanovic (Migration) - [2022] AATA 4827

Zivanovic (Migration) [2022] AATA 4827 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Mirjana Zivanovic
VISA APPLICANT:  Mr Goran Krstic
REPRESENTATIVE:  Mr David Pavkovic (MARN: 0853763)
CASE NUMBER:  2012524
HOME AFFAIRS REFERENCE(S):          OSF2017/015013
MEMBER:Jane Marquard
DATE:24 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa 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

Statement made on 24 October 2022 at 7:04am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– 24-hour high dependency assistance required – visa applicant is willing to provide the assistance – ongoing medical health issues – at the time of decision the visa applicant is carer of the Australian relative – assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360

Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221

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 29 May 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW AND SUMMARY OF FINDINGS
The review applicant, who is the person requiring care, is an Australian citizen of Serbian background. She is 77 years old. The visa applicant is her son, Goran, who is a Serbian citizen who currently resides in Serbia. He applied for the visa on 13 March 2017, seeking to be his mother’s carer in Australia.
The delegate of the Department of Home Affairs (the Department) in a decision dated 29 May 2020 refused to grant the visa on the basis that cl 116.211 of Schedule 2 to the Regulations was not met. The delegate was not satisfied that the assistance required by the review applicant could not reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia.
No hearing was necessary in this matter as the Tribunal was able to determine the matter pursuant to s 360(2)(a) of the Act, in the applicant’s favour, on the basis of documents provided, and in particular new evidence to the Tribunal.
The Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal is satisfied that the review applicant needs and will continue to need for two years, direct assistance in attending to the practical aspects of daily life. The Tribunal is satisfied that the visa applicant claims to be the carer of the review applicant and is willing and able to provide the assistance the review applicant needs. The Tribunal is satisfied that the assistance cannot reasonably be provided by another…

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 Zivanovic (Migration)

Details

AGLC: Zivanovic (Migration) [2022] AATA 4827
Case: [2022] AATA 4827
Decision Date: 24 October 2022

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a Subclass 116 (Carer) visa. The visa applicant, Goran, a Serbian citizen residing in Serbia, sought to migrate to Australia to care for his 77-year-old Australian citizen mother. The delegate had refused the visa on the basis that the criteria in clause 116.211 of Schedule 2 to the Migration Regulations 1994 (Cth) were not met, specifically that the required assistance could not reasonably be provided by another relative or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 116 visa, particularly concerning the need for 24-hour high dependency assistance for the review applicant, the willingness and ability of the visa applicant to provide such assistance, and whether the assistance could reasonably be obtained from other sources in Australia. The Tribunal also considered whether the review applicant had ongoing medical health issues requiring direct assistance for at least two years.

The Tribunal found that the review applicant did require, and would continue to require for at least two years, direct assistance with the practical aspects of daily life due to medical conditions. Crucially, the Tribunal was satisfied, based on new evidence provided, that the visa applicant was willing and able to provide the necessary care. Furthermore, the Tribunal concluded that the assistance could not reasonably be provided by another relative who was an Australian citizen or permanent resident, nor could it be obtained from welfare, hospital, nursing, or community services in Australia.

Consequently, the Tribunal remitted the application for the Subclass 116 visa to the Minister for reconsideration, with a direction that the criteria under clauses 116.211 and 116.221 of Schedule 2 to the Regulations were met.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 May 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW AND SUMMARY OF FINDINGS The review applicant, who is the person requiring care, is an Australian citizen of Serbian background. She is 77 years old. The visa applicant is her son, Goran, who is a Serbian citizen who currently resides in Serbia. He applied for the visa on 13 March 2017, seeking to be his mother’s carer in Australia. The delegate of the Department of Home Affairs (the Department) in a decision dated 29 May 2020 refused to grant the visa on the basis that cl 116.211 of Schedule 2 to the Regulations was not met. The delegate was not satisfied that the assistance required by the review applicant could not reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia. No hearing was necessary in this matter as the Tribunal was able to determine the matter pursuant to s 360(2)(a) of the Act, in the applicant’s favour, on the basis of documents provided, and in particular new evidence to the Tribunal. The Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal is satisfied that the review applicant needs and will continue to need for two years, direct assistance in attending to the practical aspects of daily life. The Tribunal is satisfied that the visa applicant claims to be the carer of the review applicant and is willing and able to provide the assistance the review applicant needs. The Tribunal is satisfied that the assistance cannot reasonably be provided by another relative who is an Australian citizen or permanent resident or obtained from welfare, hospital, nursing or community services in Australia. The reasons for these findings follow. SUMMARY OF RELEVANT LAW AND QUESTIONS FOR DETERMINATION At the time of application, 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 visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa, claiming to be a carer of the review applicant. The purpose of a carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen, with a medical condition causing a significant level of impairment to sponsor an overseas relative to Australia to provide assistance of the kind required for the Australian relative (or their family unit member). 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 of Schedule 2 to the Regulations, which requires that the visa applicant is a carer of the Australian relative mentioned in cl 116.211 of Schedule 2 to the Regulations.

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 application for an Other Family (Migrant) (Class BO) visa 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 RegulationsJane MarquardMemberATTACHMENTMigration 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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