1916547 (Migration)

[2021] AATA 2877

1916547 (Migration) [2021] AATA 2877 (15 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1916547

MEMBER:Margie Bourke

DATE:15 July 2021

PLACE OF DECISION:  Melbourne

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

·cl 836.213 of Schedule 2 to the Regulations.

Statement made on 15 July 2021 at 1:40pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – sponsorship requirements – Carer Visa Assessment Certificate provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 836.212, 836.213, 836.221; r 1.15

CASES

Nguyen v MICMSMA [2020] FCS 1732

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 7 June 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 February 2019. 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 (Cth) (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 applicant meets the requirements of carer at the time of decision.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the applicant did not meet the requirements of cl.836.221 because the applicant did not meet the regulation requirements for the definition of carer in r.1.15AA, in particular r.1.15AA(1)(a), (b) and (c).

4. The Tribunal has reached a different conclusion to the delegate in the Department’s decision record dated 7 June 2019. The Tribunal wishes to clarify that it was provided with a Carer Visa Assessment Certificate that was not available to the delegate, and the Department’s decision was made prior to the decision of the Federal Court in Nguyen v MICMSMA [2020] FCS 1732. The judgement in Nguyen v MICMSMA is in relation to sponsorship requirements in cl.836.213, and concluded that the Australian relative who sponsors the applicant and an Australian relative requiring care from the applicant do not necessarily have to be the same person for the purposes of meeting the requirements of a subclass 836 visa. The Tribunal has noted that the case law in relation to the interpretation of the requirements of “the Australian relative” in cl.836.213 have changed since the Department’s decision in this matter, and this change in case law directly impacts the findings of the Department decision as to whether the applicant is a relative of the Australian resident requiring care (r.1.15AA(1)(a)). It is appropriate in these circumstances that the Tribunal make a decision in relation to whether the applicant meets the sponsorship requirements of cl.836.213, although the delegate did not refuse to grant the visa on the basis of this subclause.

   The hearing process

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, quick and economical. The Tribunal had regard to the circumstances of the applicant and the nature of the review. The Tribunal considered that the review did not require a large quantity of documents to be put to the applicant during the hearing, and that a hearing by video would give the applicant a fair and reasonable opportunity to give evidence present arguments. The Tribunal considered that it hearing by video would allow a fair and effective hearing and enable the Tribunal to properly assess the credibility of the evidence before it. The Tribunal considered that due to the limit of availability of in-person hearings as a result of the covid-19 pandemic, further delay ought be avoided. In all the circumstances of this review, the Tribunal decided it was appropriate that the matter be conducted by way of video hearing. The applicant was invited to attend the hearing by video. The Tribunal did not receive any objection to the hearing proceeding by way of hearing by video.

6. The applicant appeared before the Tribunal on 17 May 2021 to give evidence and present arguments. The applicant attended by video with her sister and her mother, who all attended on the one screen by video. The applicant had arranged for two witnesses to attend by telephone. These witnesses attended for the introduction, and subsequently left the hearing room. The Tribunal did not take evidence from these witnesses, as the review applicant and her sister subsequently indicated that they could not provide evidence in relation to the main issue of the review.

7. The applicant’s sister indicated that she was the representative but also stated she wished to attend as a witness in the hearing. After a brief discussion, in which the applicant’s sister indicated she had no legal training and was not a qualified migration agent, the applicant’s sister decided she would give evidence as a witness, and the Tribunal indicated that it would accept evidence from the applicant’s sister and she could participate in the hearing as a witness.

8. Initially all the participants in the hearing were invited to stay for the introduction to the hearing. The review applicant gave evidence first. The applicant turned to her sister for assistance to answer the questions. The Tribunal decided it would be easier for the applicant to give her evidence without distractions or interruptions if the witnesses left the hearing. For this reason all the witnesses were asked to leave the hearing, and the witnesses were invited to join the hearing when it was time for them to give their evidence.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant and her mother and sister indicated they had no difficulty understanding the interpreter. It should be noted that the interpreter attended by video, but was interrupted by noise and movement in the background, and moved location during the hearing. The Tribunal is satisfied that the interruption to the interpreter did not interfere with the quality of the interpreting or the assistance provided to the Tribunal or the participants in the hearing.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Sponsorship requirements – cl.836.213

11. The issue in the Department’s decision record was that the applicant did not meet the requirements for carer in subclause 836.221 because the applicant had not provided a Carer Visa Assessment Certificate that related to the Australian resident who had the medical condition, and that met the requirements of r.1.15AA(1)(b) and (c). Further the delegate found the review applicant was not a relative of the resident with a medical condition and therefore the review applicant did not meet the requirements of r.1.15AA(1)(a).

12. The decision of Nguyen v MICMSMA in 2020 refers to the interpretation of the phrase “an Australian relative” in cl.836.212 and “the Australian relative” in cl.836.213. The judgement concludes there is no requirement that the Australian relative who sponsors the visa applicant for the purposes of cl.836.213 must be the same person as an Australian relative requiring care from the visa applicant in cl.836.212. Therefore, based on the decision of Nguyen v MICMSMA the review applicant can meet the requirements of cl.836.213.

13. Based on the birth certificates of the applicant and the sponsor, I am satisfied that the applicant and her sponsor our biological systems, and are both the daughters of [Ms A]. Based on the certificate of Australian citizenship, I am satisfied that the applicant’s sister [named] was granted citizenship [in] September 1993. Based on the sponsorship forms and the application forms I am satisfied that the applicant is sponsored by her sister. Based on the sponsor’s identity documents, birth certificate, certificate of marriage, and certificate of Australian citizenship I am satisfied she is over the age of 18 years. Based on the evidence available to the Tribunal, I am satisfied that the sponsor is usually resident in Australia. For the above reasons I am satisfied the applicant is sponsored by her sister who is an Australian citizen, who is aged over 18 years and is usually resident in Australia. I am therefore satisfied that the applicant meets the requirements of cl.836.213.

14. Based on the judgement in  Nguyen v MICMSMA I conclude that the applicant can meet the requirements of  cl.836.213, and be sponsored by her sister, an Australian citizen, and also meet the requirements of cl.836.212, and claim to be the carer of her mother, who is an Australian relative.

15. I am satisfied that the sponsor of the applicant meets the requirements of cl.836.213, that she is an Australian citizen, is over the age of 18 years and is usually resident in Australia. Therefore, the applicant meets the requirements of cl.836.213.

    Carer requirements

16. Applying the principles of Nguyen v MICMSMA, the applicant can potentially meet the requirements of carer as set out in r.1.15AA(1)(a)-(f) and (2). I am satisfied that the person with the medical condition requiring care is the applicant’s mother, and the applicant is a relative of the Australian resident with the medical condition.

17. In the Department’s decision record dated 7 June 2019, a copy of which was provided to the Tribunal by the applicant, the Department found that the Carer Visa Assessment Certificate provided by the applicant and dated 9 April 2019 found the applicant received an impairment rating of 15 which did not meet the specified minimum relevant rating of 30 and therefore the requirements for the certificate were not satisfied to meet the regulations.

18. The applicant provided the Tribunal with submissions containing several medical reports or medical related documents pertaining to the applicant’s mother who was the person requiring care in the application for the visa. There were several documents dated 2015 to 2019 inclusive that predated the Carer Visa Assessment Certificate dated 9 April 2019.

19. The applicant provided the Tribunal with a medical report dated 9 December 2019 which records further nodules found on the applicant’s mother’s lung, that no symptoms were noted, and that further imaging was recommended for the future. The Tribunal accepts that the medical conclusion was to adopt a monitoring role in relation to the applicant’s mother’s ongoing health. The applicant provided a medical report dated 7 May 2021 which records the applicant’s mother is frail and elderly, suffers multiple medical conditions, and supports the visa application. The applicant also provided two records of future appointments, a telephone review appointment for 28 June 2021, and a medical imaging appointment for 21 August 2021. After the hearing the applicant provided a medical report which recorded the applicant’s mother was suffering from a terminal metastatic condition.

20. The applicant had not arranged for a current CVAC assessment prior to the hearing. In the hearing that the applicant requested the Tribunal to allow her the opportunity to apply for a current assessment in relation to the person requiring care. The Tribunal considered that it was reasonable and fair to allow the applicant the opportunity to obtain a current Carer Visa Assessment Certificate, and that this assessment be carried out at the earliest opportunity. The Tribunal agreed that the applicant should have the opportunity to present evidence as to whether there is a current Carer Visa Assessment Certificate that meets the relevant requirements in the regulations.

21. After the hearing the applicant provided the Tribunal with a Carer Visa Assessment Certificate. I am satisfied that the applicant has provided a Carer Visa Assessment Certificate dated 1 July 2021 which certifies that the applicant’s mother, [Ms A], has a medical condition including metastatic lung cancer and osteoarthritis, that she meet the requirements for carer, and the certificate records an impairment rating which meets the requirements.

22. Based on the change in case law and the current Carer Visa Assessment Certificate dated 1 July 2021, the Tribunal accepts the applicant can meet the requirements of r.1.15AA(1)(a), (b) and (c) for the purposes of meeting the requirements of carer as set out in the regulations.

23. In these circumstances it is appropriate that this matter be remitted back to the Department for consideration as to whether the applicant meets all the requirements that the applicant is the carer of an Australian relative as set out in r.1.15AA(1) and (2).

    The findings on this review

24. As stated above the Tribunal has made findings in relation to the sponsorship requirements in cl.836.213. The Tribunal finds that the applicant meets the requirements in cl.836.213. The Tribunal has limited its conclusions on this review to cl.836.213.

25. 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

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

    ·cl 836.213 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.