Australian Immigration Daily News

If you don’t believe that the specific words that are used in the Migration Regulations can make a difference to the prospects for success of a visa application, then a case that came out of the Federal Circuit Court yesterday, Nawaqaliva v Minister for Immigration & Anor (2016) FCCA 2080 (17 August 2016) is “proof of the pudding”! 

And if you are assisting a client with an application for a Carer visa – Subclass 116 – that was made before 9 November 2009 – then, as we like to say back home in Brooklyn, New York: “Do I ever have a case for you!”.  

You betcha! 

The decision in Nawaqliva  reinforces earlier decisions that have been handed down by the Federal courts about carer visas and can really, really help you to demonstrate that your client satisfies the criteria for the grant of a Carer visa. 

And there is a bit of bad news too, unfortunately: the wording of regulation 1.15AA was changed with effect from 9 November 2009, so in the case of applications that were lodged after that date, then the Nawaqliva and the previous case authorities won’t help anymore.  

But given how long it takes for a Carer visa to be processed, I would be willing to venture that there are at least several pre- 9 November 2009 applications still floating around out that in the ether that have not yet been determined by the Department or the Tribunal.  

So what was the story in this case? 

Well, prior to 9 November 2009, regulation 1.15AA(1)(e) was worded in the following terms: 

“e. the assistance (required by an Australian citizen, permanent resident or eligible New Zealand citizen) cannot reasonably be obtained”  from any other relative of the resident. 

In the Nawaqliva case, Judge Manousaridis of the Federal Circuit Court found that the Tribunal had committed jurisdictional error by misinterpreting the meaning of this regulation. 

How did the Tribunal fall into error? 

What it did wrong was that it focused on the question of whether there were relatives of the person requiring care (aside from the applicant for the Carer visa)  who were in Australia and who were, at least in theory, available to contribute to giving the required care.  Or, to put it another way, the Tribunal was not satisfied that there was sufficient evidence to show that in light of their work and other commitments, these other relatives could not have provided the necessary care. 

As the Court held in Nawaqliva, the appropriate focus of the Tribunal’s inquiry should not have been on whether other relatives were theoretically available , but whether the other relatives were actually willing to provide the care.  

This conclusion follows the holdings of several cases that preceded Nawaqliva, which also examined the proper interpretation of regulation 1.15AA as it stood prior to 9 November 2009 , including Issa v Minister for Immigration and Multicultural Affairs, Lin v Minister for Immigration and Multicultural Affairs, Rafiq v Minister for Immigration and Multicultural Affairs and Naidu v Minister for Immigration and Multicultural Affairs. 

In other words, there is a boatload of case authority that addressed the pre-9 November 2009 version of regulation 1.15AA. 

And the common thread of all of these cases is that because that version of 1.15AA was worded in terms of whether the care could reasonably obtained,then the essential inquiry must be centred on whether relatives other than the applicant are willing to provide the care and not on whether the relatives are available to provide the care. 

So, if the delegate in the first instance and the Tribunal on review do not examine the question of whether relatives of the applicant are willing to provide the care, then – BING!!! – you’ve got a good case for judicial review. 

Now on to the bad news with respect to post-9 November 2009 applications for Carer visas: 

Regulation 1.15AA(1)(e)(i) is now worded in terms that the assistance cannot reasonably be provided, and not, in terms of whether the assistance can reasonably be obtained. 

Therefore, the argument that “worked” in Nawaqliva, and the interpretation that was applied in the other cases identified above, is no longer available and won’t work anymore. 

Under the regulation as it has now been revised and re-worded, the Tribunal can and undoubtedly will look to whether any relatives aside from the applicant are available to furnish the needed care. The question will not any longer be focused on whether the other relatives are willing to give the care. 

Yep, the particular, specific words that are used in a regulation really can make all the difference in the world!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.