CORONEL (Migration)

[2020] AATA 4821

CORONEL (Migration) [2020] AATA 4821 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Imelda Daquinag CORONEL
Mr Noel Dela Cruz CORONEL

CASE NUMBER:  1808128

HOME AFFAIRS REFERENCE(S):          CLF2017/22494

MEMBER:Kira Raif

DATE:18 November 2020

PLACE OF DECISION:  Sydney

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:

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

Statement made on 18 November 2020 at 8:56am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer certificates provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(b), (c), (2), 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 15 March 2018 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 16 March 2017. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the first named applicant (the applicant) was a carer of an Australian relative. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 14 September 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

5. At the time the application was made, 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.

   Whether the applicant is a carer

6. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

7. The applicant claims to be a daughter of the person who needs assistance, however, the delegate noted that the applicant had not provided sufficient evidence of the relationship. The applicant provided with her application a Carer Visa Assessment Certificate (‘the Carer Certificate’) in relation to her mother, Teodora Daquinag, which had the impairment rating of 10. The applicant also indicated that she was seeking the Carer certificate in relation to her mother’s partner Ramon Daquinag but that certificate was not provided. The delegate noted that the impairment rating was below the prescribed level of 30 and the delegate was not satisfied the applicant met r. 1.15AA.

8. The applicant, through her representative, provided a substantial amount of evidence to the Tribunal on the evening of Friday, 11 September 2020 and a further legal submission with supporting evidence on Sunday 13 September 2020. As the hearing was scheduled for Monday 14 September 2020, the Tribunal considers such late provision of evidence unhelpful and not in compliance with the Tribunal’s Practice Directions. No explanation has been offered by the applicant’s representative for the late submission of evidence. This is particularly problematic as the applicant was represented by the same migration agent since the application was lodged with the Tribunal in March 2018, some two and a half years prior to the hearing. The applicant was represented by Ms Cyril Gabito of Gabito lawyers.

9. The applicant provided to the Tribunal evidence of having made contact with Bupa, which is dated September 2020, more than two years after the primary decision was made. The applicant provided other personal documents and medical reports, as well as evidence of having completed a qualification in Aged Care. In the submission of 13 September 2020 the applicant and other family members provided statements outlining their circumstances and the need for a carer, medical evidence and evidence of their contact with BUPA.

10. The Tribunal granted time to the applicant to obtain the updated Carer certificates for her parents. On 17 November 2020 the applicant provided to the Tribunal two Carer certificates in relation to her mother, the sponsor, and the sponsor’s partner. Both have an impairment rating of 30 or above.

11. The Tribunal is satisfied that the most recent Carer Certificate in relation to the sponsor, provided during the review, meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) and (c) are met.

12. The Tribunal is mindful that the delegate had not assessed the remaining requirements of r. 1.15AA, having made a finding that there was no relevant Carer certificate. In such circumstances, the Tribunal has formed the view that the most appropriate action is to remit the matter for reconsideration to allow the delegate to assess the remaining criteria. Should the delegate find that the applicant does not meet the requirements for the grant of the visa, the applicant will have the opportunity to seek review in relation to such findings.

    Conclusion

13. 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

14. 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:

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

    Kira Raif
    Senior Member