Chamesedine (Migration)

[2017] AATA 3159

Chamesedine (Migration) [2017] AATA 3159 (10 July 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tahanieddine Chamesedine

CASE NUMBER:  1707429

DIBP REFERENCE(S):  CLF2016/43404

MEMBER:Helena Claringbold

DATE:10 July 2017

DATE CORRIGENDUM SIGNED             3 September 2018

PLACE OF DECISION:  Sydney

AMENDMENT   The following corrections are made to the

Decision.

Date of the decision should read 10 July 2018 instead of 10 July 2017.

Helena Claringbold

Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tahanieddine Chamesedine

CASE NUMBER:  1707429

DIBP REFERENCE(S):  CLF2016/43404

MEMBER:Helena Claringbold

DATE:10 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2018 at 11:02am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Definition of carer – Impairment rating – Carer Visa Assessment Certificate – Request to be considered for another visa – Application fee – Decision under review affirmed


LEGISLATION
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 2 cl 836.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 20 July 2016, Ms Tahanieddine Chamesedine, the applicant, applied for an Other Family (Residence) (Class BU) visa.  The application was made on the basis of her parental relationship with Ms Saedah Diab Arab, the sponsor and on the applicant providing assistance to Ameer El Arab, who is the applicant’s grandson.

2. On 24 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met the definition of Carer as prescribed in Regulation r.1.15AA of the Migration Regulations 1994 (the Regulations) of the Migration Act 1958 (the Act). Therefore the applicant did not meet cl.836.221 of Schedule 2 to the Regulations. This is a review of the delegate’s decision.

3. 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.

4. On 4 April 2018, the applicant appeared before the Tribunal to give evidence and present arguments.  She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Hysam Arab and Ms Saedah Arab. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal considered the information in the Department of Immigration and Border Protection’s (the Department’s) case file, the Tribunal case file and the evidence provided at the Tribunal hearing.

   THE ISSUE

7. The issue in the present case is whether the relative with the medical condition has been assigned an impairment rating of at least 30 as detailed in a Carer Visa Assessment Certificate (CVAC) and can satisfy the requirements of Regulation r.1.15AA.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1951 in Bakhoun, Lebanon.  Her parents and two siblings are deceased. She has seven siblings living in Lebanon.  She has two children living in Australia and one child living in Finland.

9. The sponsor was born in Lebanon in 1974.  She is an Australian citizen. She has six children. The sponsor’s daughter Ameer El Arab was born in 2011.

   CLAIMS AND FINDINGS

   Carer is defined in Regulation 1.15AA. 

10. 1.15AA (1) defines that 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;

    (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 applicantsatisfies a criterion that the applicant is a carer.

    Impairment rating

11. Under regulation r.1.15AA(1)(b)(iii), the impairment must be assigned a rating. The MHS medical adviser will provide a rating of the impairment of the person based on the Impairment Tables within the meaning of subsection s.23(1) of the Social Security Act 1991. The rating is expressed as a number between 0 and 100.

12. Regulation 1.15AA(1)(c) requires the rating to be equal to or exceed the impairment rating specified in the legislative instrument IMMI 17/126.  The rating is currently 30, that is, the person with the medical condition must receive a rating from MHS of at least 30.

13. In July 2016, the applicant initiated proceedings with Bupa Medical Visa Services (BMVS) to obtain a Carer Visa Assessment Certificate (CVAC) for Ameer El Arab.  A psychologist’s report was provided in relation to the sponsor’s psychological condition.  The applicant was provided a further 28 days to submit the CVAC.  On 18 November 2016, the applicant’s migration agent advised the Department that the applicant’s spouse, died on 11 September 2016. The migration agent requested that the application be considered as an ‘aged dependent relative’ visa application.

14. On 16 March 2017, the applicant was again requested to provide the CVAC. On 22 March 2017, the applicant’s migration agent informed the Department: ‘I did inform the Client to provide further documents requested by DIPB.  Client has informed me they cannot provide documents and requested that the delegate to consider the documents which they have earlier provided for this application’.

15. At the Tribunal hearing, the applicant provided the Tribunal with a CVAC dated 20 July 2016. The resident was assessed as having an impairment rating of 15 which is under the required rating of at least 30. The Tribunal explained to the applicant, the sponsor and her husband about the CVAC and impairment ratings. The applicant told the Tribunal that the sponsor is her daughter.  She stated the following: her daughter has six children, the oldest is aged 23 years old, a 19 years old who has had a kidney removed, a 14 year old who has had a kidney transplant, a 10 year old and an eight year old and Ameer who is on medication and is the person who needs care. The sponsor, her husband, the children and the applicant live together.

16. The sponsor told the Tribunal that the impairment rating given to Ameer is incorrect and that she had not been listened to by BUPA Medical Services (BMVS).  The Tribunal told the sponsor that it is aware that BUPA would have advised about the process for reassessment by BUPA.  The sponsor said that she had spoken with BUPA but as she had provided them with all the information a reassessment was not undertaken.  The sponsor told the Tribunal  that, having gone through the same circumstances with her other children, she knew that Ameer would deteriorate and she is trying to put into place strategies for the future. 

17. The Tribunal provided the applicant and the sponsor additional time to determine whether they wanted Ameer to be reassessed for a CVAC.  The applicant was told that if the CVAC were not provided within that timeframe, The Tribunal would make a decision on the review. 

18. On 22 June 2018, the applicant provided a CVAC for the resident dated 28 May 2018.  The resident was assessed as having an impairment rating of 20 which is under the required rating of at least 30.

19. The Tribunal is satisfied that the CVAC meets the relevant requirements. The resident has been assessed as having an impairment rating of 20, which is under the required rating of at least 30. Therefore cl.836.221 is not met.

    Other Considerations

20. In relation to the applicant’s family’s request that the visa application be treated as an application for an Aged Dependent Relative visa, it is noted the Subclass 838 (Aged Dependent Relative) visa falls within the same class of visa as the Carer visa.  However, both subclasses attract different base application fees. 

21. A requirement for making a valid visa application is that, at the time of application, the correct visa application fee is paid.  At the time of application the applicant paid $1,595 for a Carer visa application, whereas at the time of application, the application fee for the Aged Dependent Relative visa was $3,870.  As a result, the applicant did not pay the correct fee for the Aged Dependent Relative visa and the applicant has not made a valid application for that visa.  Therefore, the Tribunal consider the application for review against the requirement for the Aged Dependent Relative visa.

22. The Tribunal declines a request that the Tribunal seek Ministerial Intervention in this matter.  However, it encourages the applicant to bring the matter before the Minister.

23. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

    DECISION

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

    Helena Claringbold
    Member