1909806 (Migration)

[2020] AATA 6023

1909806 (Migration) [2020] AATA 6023 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909806

MEMBER:Margie Bourke

DATE:26 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·r.1.15AA(1)(b) and (c) and r.1.15AA(2) for the purposes of cl.836.221 of Schedule 2 to the Regulations.

Statement made on 26 November 2020 at 8:51am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate – applicant is a carer of the Australian relative – impairment rating – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958, ss 65,360

Migration Regulations 1994, r 1.15, Schedule 2, cl 836.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2019 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 30 June 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B 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 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221, which requires the visa applicants are carers of an Australian relative within the meaning of r.1.15AA.

3. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the applicants had not provided a carer visa assessment certificate (CVAC) that met the requirements of r.1.15AA(1)(b).

4. The applicants provided the tribunal with a CVAC dated 2 November 2020.  The tribunal has considered the CVAC, and the information contained in the certificate in relation to the sponsor. The tribunal decided it was appropriate in this review to limit the scope of the review to the precise regulation requirements of the Department decision record dated 3 April 2019.  The tribunal is satisfied that based on the information available to it, the tribunal can make a decision favourable to the applicants without proceeding to a hearing pursuant to s.360(2)(a) of the Act.

5. The following are the written reasons that the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The scope of the review

6. Clause 836.221 requires that at the time of decision, the 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. The tribunal has considered that the delegate in the decision record dated 3 April 2019 restricted the assessment to r.1.15AA(1)(b) and (c), and (2), and this decision record has made findings only in relation to these regulation requirements.

7. The applicants provided a CVAC dated 2 November 2020.  The report states that the Australian relative being assessed was assessed “on the papers” with the preapproval of the Department because of his active psychotic illness and his capacity to pose a significant risk of harm to himself.

8. The tribunal had been alerted to the issue of sponsorship as the sponsor [Mr A] had twice written to the Department withdrawing his sponsorship, in February 2019 and in March 2020.  The applicants provided the tribunal with a handwritten letter from the sponsor dated 6 November 2020 recording he wished to be the sponsor and continue to be the sponsor.

9. The tribunal is advised by the applicants that [Mr A], who is the Australian relative for the purposes of an assessment of whether the applicants meet the requirements of r.1.15AA, is too unwell to attend a hearing.  The CVAC records that [Mr A] is too unwell to be assessed in person by the BUPA doctor for the purposes of the CVAC certificate.  The  tribunal is cognisant that the Department has not assessed the applicants against the remaining requirements of r.1.15AA, or other criteria for the visa and in the circumstances of this review, due to the serious ill health of [Mr A], the tribunal limited the scope of the review in discharge of its procedural fairness obligations to the applicants in conducting the review.

   Certification – r.1.15AA(1)(b) and r.1.15AA(2)

10. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

11. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

12. The Department had been provided with a certificate dated 28 May 2018 that did not satisfy r.1.15AA(b).  the tribunal has been provided with a certificate dated 2 November 2020 which states that [Mr A], based on the psychiatric and medical reports and hospital admission history, has a medical condition [that] is causing functional impairment of his ability to attend to the practical aspects of daily life.  This certificate records that [Mr A]’s impairment has a rating under the impairment tables specified in the certificate, his condition is likely to be permanent and he has a need for direct assistance in attending to the practical aspects of daily life.

13. The CVAC dated 2 November 2020 addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv) and satisfies the requirements of r.1.15AA(1)(b). I am satisfied that the applicants meet the requirements of r.1.15AA(1)(b).

14. I have considered the certificate and it signed and issued in relation to a medical assessment carried out by an authorised health provided specified in the instrument.

15. The certificate provided meet the requirements of r.1.15AA(2). Therefore the applicants meet the requirements of r.1.15AA(2).

    Impairment rating – r.1.15AA(1)(c)

16. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126. In the present case, the impairment rating specified in the certificate 30. This rating is equal to the impairment rating specified by the relevant instrument.  

17. The certificate meets the requirements of r.1.15AA(1)(c). Therefore the applicants meet the requirements of r.1.15AA(1)(c).

18. Given these findings, at the time of decision the applicants meet the requirements of r.1.15AA(1)(b) and (c) and r.1.15AA(2) for the purposes of assessing whether they are a carer of the Australian relative, for the purposes of meeting the requirements of cl.836.221.

19. 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 836 visa.

    DECISION

20. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·R.1.15AA(1)(b) and (c) and r.1.15AA(2) for the purposes of cl.836.221 of Schedule 2 to the Regulations.

    Margie Bourke
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (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.