Carer visas – restrictive approach taken by the AAT overturned in the Federal Court


 


Carer visas – the restrictive approach taken by the AAT overturned in the Federal Court

By Lorenzo Boccabella, BA, LLB, a specialist in migration law (9 December 2020)

On occasion, the AAT takes an unnecessarily restrictive view of visa requirements which end up requiring the Courts to intervene. The recent Federal Court case of Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1732 is one example. The case concerned an onshore carer visa where the AAT took an unnecessarily restrictive view of whether a sponsor had to be resident in the household of the person needing care at time of visa application.
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/1732.html

Ultimately the Federal Court found that the common sense approach to the carer visa criteria was to simply determine if the person requiring care, does indeed require the care and that the carer visa applicant was ‘willing and able to provide to the resident substantial and continuing assistance of the kind needed.” 

The slight complication in this case was that the sponsor was a third person, being a sister of the carer visa applicant. Both the sponsor and the carer visa applicant were the daughters of their elderly mother, who was the person who needed care. The Federal Court recognised that the sponsor need not be the same person as the person needing care. A sponsor of course, has sponsorship obligations set out in Reg 1.20(2) which principally are for a permanent visa:

(2) [that] the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:

(i)  if the applicant is in Australia — during the period of 2 years immediately following the grant of that visa; or

The person to be cared for may not have the financial resources to provide that sponsorship undertaking, hence it is not unusual for a sponsor to be a third person who must also be a relative of the person needing care

The AAT in a somewhat complicated reading of the Carer definition in Reg 1.15AA, stated that the  regulations required that the sponsor, the carer visa applicant and the person to be cared for, all had to live in the same household.

Sometimes it is the function of the Federal Court to point out the obvious, which in this case is, that the sponsor need not live in the same household as the both the person to be cared for and the carer visa applicant.

Here the visa in question was the subclass 836 carer which is an ‘onshore visa’. The Nguyen case is an illustration of the best approach to statutory interpretation which is ‘keep it simple’.

But the whole case had a complicated history:

1. visa rejection;

2. review to the AAT, unsuccessful

3. judicial review to the Federal Circuit Court, successful

4. Minister appeals to the Full Federal Court, appeal rejected and the visa application is then remitted to the AAT.

5. AAT review unsuccessful for the second time

6. judicial review to the Federal Circuit Court, unsuccessful

7. Visa Applicant appeals to the Federal Court, appeal successful.

Very useful also read the first Full Federal Court appeal - Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149. http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2017/149.html

There the Federal Court was critical of the AAT undertaking its own research without properly revealing that research to the applicant.

The program quota for carer visas is quite small, but for persons needing care it can be a life saver. The alternative to having a carer visa relative to care for the Australian citizen or permanent resident is institutional care!  Of course, in practice, only carer visa applicants who manage to make it to Australia on some sort of substantive visa (without the no further stay condition being imposed -  8503) can apply for this visa. The processing time for the offshore carer visa would be prohibitive.

Divya Aggarwal