Arizo (Migration)

[2020] AATA 5981

Arizo (Migration) [2020] AATA 5981 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Geneve Arizo

CASE NUMBER:  1913466

HOME AFFAIRS REFERENCE(S):          CLF2018/212413

MEMBER:Margie Bourke

DATE:23 November 2020

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 23 November 2020 at 4:47pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – rating is below the impairment rating specified by the relevant instrument – definition of carer in r.1.15AA(1) not met–  decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

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

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

2. The applicant applied for the visa on 18 September 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 applicant is the carer of the Australian relative.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant met the definition of carer in r.1.15AA(1)(c).

4. The tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick.  The tribunal had regard to the nmature of the review.  In the period that this matter was set for hearing, in-person hearings were limited due to the covid-19 pandemic, and the tribunal decided that it was appropriate to schedule this matter for hearing by way of video hearing.  The applicant advised that she had the necessary technology to attend a video hearing.

5. The applicant appeared before the tribunal by video on 23 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

6. The applicant’s mother attended the hearing, but the tribunal was advised that she did not understand the interpreter because she spoke a different dialect and was hearing impaired. The tribunal advised it would not take evidence from the applicant’s mother, and if her evidence was required, or the applicant wished the tribunal to hear evidence from her mother, the hearing would be postponed to a different date and a suitable interpreter would be arranged to assist her. In the hearing the applicant’s mother was not required to give evidence by the tribunal, and the applicant did not wish her mother to give evidence to the tribunal.

7. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the definition of carer in r.1.15AA at the time of decision.

   APPLICANT IS A CARER

   Whether the applicant is a carer

9. 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.

   Impairment rating – r.1.15AA(1)(c)

10. 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 07/012, and the required impairment rating specified in the certificate is a minimum of 30.

11. The applicant lodged the application for the carer’s visa on 18 September 2018.  The applicant provided a carer visa assessment certificate (CVAC) dated 29 October 2018.  The CVAC related to Juanita Dadat, who is the mother and Australian relative of the applicant and the person with the medical condition. The CVAC assigned the person with the medical condition an impairment rating of 5.

12. The Department decision record dated 24 May 2019 recorded that the applicant had advised the Department that she would be engaging with BUPA to arrange a reassessment of the impairment rating.  The Department decision record notes no further CVAC or impairment rating assessment was received from the applicant.

13. The tribunal wrote to the applicant on 9 September 2020 inviting her to provide evidence within 28 days that she had obtained a further CVAC or had made arrangements to do so. The letter clarified that to meet the criteria the applicant was required to provide a CVAC which specified an impairment rating of at least 30. The applicant sent an email to the tribunal dated 16 September 2020 attached a response from BUPA confirming she had contacted BUPA, and setting out what was required to make an appointment for an assessment.  The tribunal accepts the applicant’s evidence that she did not make the appointment, and that she was aware of the tribunal’s invitation to provide the CVAC or evidence that she had arranged an assessment for a CVAC.

14. The applicant was invited to the hearing by an invitation letter dated 4 November 2020 and sent by email. The applicant provided the tribunal with a medical report from a geriatric specialist dated 4 November 2020 in relation to her mother that has a disclaimer at the end that the information is not to be used for carer visa purposes. The applicant provided the tribunal with a hearing assessment report dated 28 September 2020, a brief general practitioner medical report dated 21 September 2020, and a surgeon’s letter dated 30 November 2018, all in relation to her mother.  The applicant stated she had not made an appointment for a further assessment with BUPA because she is waiting for a further report from the geriatric specialist.

15. The applicant has provided the tribunal with current medical reports dated September 2020 and one dated 4 November 2020.  The tribunal accepts that the applicant was aware that she could provide BUPA with current medical reports when arranging the further CVAC assessment. The tribunal is satisfied that the applicant did not make the appointment with BUPA for the CVAC assessment. The tribunal is satisfied that the applicant has not made any arrangement for a further appointment for her mother to have a further CVAC assessment.  The applicant stated that she was not restricted by the covid-19 pandemic or lockdown restrictions from making an appointment with BUPA for a CVAC assessment for her mother.

16. The tribunal discussed with the applicant that to meet the criteria, the applicant was required to provide a CVAC with the requisite minimum rating of 30 specified in the instrument.  The tribunal accepts the applicant is aware that the CVAC dated 29 October 2018 does not satisfy the criteria as the rating assigned is only 5. The tribunal discussed with the applicant that in the absence of any other CVAC, the tribunal must rely on the evidence before it which is the CVAC dated 29 October 2018.

17. The applicant submitted that the tribunal should wait until the applicant had collected more medical reports and obtained an assessment for a CVAC from BUPA. The tribunal considered this submission.  However, the tribunal considers that the applicant has been provided with reasonable opportunities to obtain a further CVAC assessment.  The tribunal does not accept that it is reasonable that it provide further time to the applicant to provide evidence that she meets the criteria.  The tribunal accepts the applicant’s evidence that she has not made any arrangements for an appointment for an assessment for a CVAC certificate which may reassess the sponsor’s impairment rating, since the CVAC dated 29 October 2018 assigned a rating of 5 to the applicant’s mother. The tribunal is satisfied that the CVAC evidence before it contains a rating of 5.  The tribunal is of the view that the applicant has not provided the evidence that she meets the criteria of r.1.15AA(1)(c) despite being given reasonable opportunities to do so.   

18. In the present case, the impairment rating specified in the certificate is 30. This rating is below the impairment rating specified by the relevant instrument and therefore does not meet the requirements of r.1.15AA(1)(c).

19. Given this finding, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

20. 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.

    DECISION

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

    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.