Aldawoud (Migration)

[2021] AATA 4843

Aldawoud (Migration) [2021] AATA 4843 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Amal Aldawoud

CASE NUMBER:  1936220

HOME AFFAIRS REFERENCE(S):          CLF2019/33082

MEMBER:Brendan Darcy

DATE:10 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 10 December 2021 at 2:54pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – carer visa assessment certificate not provided to department or tribunal when requested and no other response to tribunal’s invitation to provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), r 1.15AA(1)(b), (2), Schedule 2, cl 836.221

CASE
Hasran v MIAC [2010] FCAFC 40

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 4 December 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 20 August 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.

3. Relevantly to this matter, the primary criteria to be met include cl 836.221 of Schedule 2 which require for the grant of the visa that, at the time when the decision is made, the applicant is the carer of another person as defined by regulation 1.15AA.

4. In this matter, the review applicant, Mrs Amal Aldawoud, is to be referred to as the applicant; while the sponsor relative, Nael Samir Alzoury, as the sponsor. Both are citizens of the Arab Republic of Syria (Syria).

5. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the applicant did not provide a Carer Visa Assessment Certificate (Certificate) pursuant to subregulation 1.15AA(2).

6. On 23 December 2019, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. The refusal notice and decision record were attached to the application for review.

7. On 18 February 2021, the Tribunal received a signed Appointment of Representative/Appointment of Authorised Recipient Form in which the sponsor appointed Mr Guner Hussein, a registered migration agent from Global Strategic Law, to act as the representative and authorised recipient in this matter. 

8. On 25 February 2021, the appointed representative submitted a Freedom of Information request pertaining to this matter.

9. On 16 July 2021, the Tribunal emailed the representative requesting the applicant to complete a Hearing Information form. The Tribunal did not receive a response. 

10. On 16 November 2021, the Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment, and to do so by 30 November 2021. It specifically stated:

    In order to meet the definition of the term ‘Carer’ provided by r.1.15AA; r.115AA(2) requires the applicant must provide a Carer Visa Assessment Certificate (Certificate).

    The applicant has not provided a Certificate to the Department or Tribunal to date. To arrange a Certificate please contact Bupa Medical Visa Services (Bupa).

    It is the applicant’s choice if they wish to obtain a Certificate or not. If you wish to obtain a Certificate please inform the Tribunal of your intention to do so, make the necessary arrangements with Bupa and provide the Tribunal with the date of the appointment.

    If you choose not to obtain a certificate please provide a statement to the Tribunal explaining the reasons why and, if relevant, any supporting evidence, such as current medical evidence from a treating doctor.

    Please note obtaining a Certificate is not a guarantee the Tribunal will decide the revue in your favour.

11. This letter also stated:

    If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. (Department’s emphasis)

12. At no time prior to and including 30 November 2021 did the Tribunal receive any response to that written invitation, either from the applicant or from anyone on her behalf. That is, the applicant has not provided the Tribunal with any further information than that which was provided to the Department. Neither did the Tribunal received any further information right up to the time of making this decision. 

13. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

14. The invitation was sent to the review applicant's nominated address, being the address provided by the review applicant in connection with this application for review.

15. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

16. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

17. It is appropriate to highlight that a decision maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

18. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

19. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    A visa cannot be granted unless the relevant criteria specified in the Migration Act and
    the Migration Regulations are satisfied. In this case, the delegate was not satisfied the legal
    requirement in clause 836.221 in Schedule 2 of the Regulations on the date of decision.

    Clause 836.221 is a time of decision criterion, which states:

    836.221

    The applicant is a carer of a person referred to in clause 836.212.

    836.212

    The applicant claims to be the carer of an Australian relative.

20. For the definition of a carer of an Australian relative, regulation 1.15AA is applicable. It states:

    Reg 1.15AA Carer

    (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 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.

21. The Tribunal accepts that ‘the resident’ referred to in r.1.15AA is the sponsor, Nael Alzaoury. It accepts the sponsor is an ‘usually resident’ Australian permanent resident, given the submitted evidence of the sponsor had been granted a permanent partner visa on 29 May 2018 (Folio 53) on the departmental file (CLF2019/33082).

22. Within the definition of carer at regulation 1.1 5AA, Regulation 1.15AA(1)(b) requires that the resident (or a member of the family unit of the resident) must have, according to a Certificate that meets the requirements of subregulation (2), a medical condition and the medical condition must be causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and the impairment must have, under the Impairment Tables, the rating that is specified in the Certificate; and because of the medical condition, the person must have, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

23. On 20 August 2019, the applicant applied for a subclass 836 (Carer) visa. At the time of lodgement with the department on 20 August 2019, the applicant provided a copy of an email from BUPA Medical Visa Services dated 5 August 2019 advising Nael Alzaoury of the documents that he needed to provide to BUPA within 28 days for the purposes of the Medical Assessment for a Carer visa.

24. On 30 August 2019 the applicant was requested to provide a Certificate. The applicant was afforded 90 days in which to provide a response. The due date for the Certificate to be provided was 25 November 2019.

25. As the delegate has not received any Certificate that met subregulation (2) of regulation 1.15AA or that there was no further evidence that the resident has attended a CVAC appointment with BUPA, the delegate proceeded to refuse the applicant a Carer visa on 4 December 2019.

26. Although the applicant applied for a review of the delegate’s refusal decision in December 2019, the parties had ample opportunity to provide a Certificate to meet r.1.15AA(2) before the issue of a s359(2) letter on 16 November 2021 – almost two years after the review.   

27. Furthermore, the Tribunal provided the applicant an opportunity to respond to its s.359(2) letter issued on 16 November 2021 via the applicant’s nominated authorised recipient and representative. 

28. The applicant was provided with a meaningful and reasonable opportunity to demonstrate that a Certificate within the meaning of subregulation 1.15AA(2) .

29. Due to this absence of evidence, the Tribunal is not satisfied that the applicant for his subclass of Carer visa because she is not a carer of person who meets the definition of a person under regulation 1.15AA(2): the resident does not have a certificate meets the requirements of paragraph (a): that there is a certificate 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 signed by the medical adviser who carried it out; or paragraph (b): there 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.

30. It follows from this that the applicant cannot satisfy subregulation 1.15AA(1).

31. Accordingly, the applicant has failed to satisfy the definition of carer under regulation 1.15AA and clause 836.211 is not met.

    Conclusion

32. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

33. Accordingly, the decision under review must be affirmed.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Brendan Darcy
    Member