De Guzman (Migration)

[2023] AATA 4388

De Guzman (Migration) [2023] AATA 4388 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Elizabeth De Guzman

REPRESENTATIVE:  Mr Wei Li (MARN: 0963619)

CASE NUMBER:  2002971

HOME AFFAIRS REFERENCE(S):          CLF2019/38338

MEMBER:Deputy President Justin Owen

DATE:18 December 2023

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 18 December 2023 at 4:58pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer visa assessment certificate not provided – no appearance at hearing – not eligible for other subclasses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1958 (Cth), r 1.15AA(1)(b), (2), Schedule 2, 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 29 January 2020 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 7 October 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.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate found the applicant had not provided a Carer Visa Assessment Certificate (CVAC).  The delegate found that in the absence of a CVAC, she was not satisfied that it had been demonstrated that a person (being the Australian citizen resident, the applicant’s brother or a member of his family unit) had a medical condition and the medical condition was causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and the impairment had, under the Impairment Tables, the rating specified in the Certificate; and because of the medical condition, the person had, and would continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.  

4. Given the absence of a CVAC, the delegate found the applicant had not provided a certificate that met the requirements of reg 1.15AA(2).  The applicant subsequently did not meet the requirements of reg 1.15AA(1)(b)(i), (ii), (iii) and (iv), and as a result did not satisfy reg 1.15AA(1)(b).    

5. On 20 November 2023 the Tribunal invited the applicant through her representative to attend a hearing to give evidence and present arguments relating to the issues in the case on 6 December 2023.  The invitation stated that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

6. The applicant did not appear before the Tribunal on the day at the scheduled time and place. The applicant did not make any request for an adjournment or postponement of the scheduled hearing. The applicant has not provided the Tribunal with any explanation for their non-attendance at the hearing.  The Tribunal notes the applicant’s failure to engage with the Tribunal in relation to her review since November 2020, over three years ago.  

7. The Tribunal has invited the applicant to a hearing through their representative. The email was not returned to sender.  Reminders of the hearing were sent five business days and one business day prior to the hearing to the mobile telephone number the applicant provided. The Tribunal is mindful that the applicant has a responsibility to keep herself informed about her application for review. 

8. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) of the Act and the invitation has not been returned to sender.

9. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.    

10. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the applicant is a carer

12. 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 reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

13. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

14. For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.

15. In this case the sponsor and ‘Australian resident’ requiring care is the applicant’s brother.  The Tribunal accepts on the evidence before it that there is a sibling relationship between the applicant and her sponsor.

16. The applicant lodged her application on 7 October 2019.  The Tribunal notes from the Departmental file that the applicant included a BUPA/Department of Home Affairs form titled ‘Statement of assistance needed to support application for Carer visa’ dated 4 October 2019. The form, signed by the sponsor and resident, summarises the resident’s claimed requirement for assistance. 

17. The Tribunal notes from the decision record the applicant provide the Tribunal that on 28 October 2019 the applicant was requested to provide a CVAC to support her application.  She was provided 90 days to provide the report with a due date of 22 January 2020.  No CVAC was provided by this date.  No request for an extension was made.  No evidence of the resident contacting BUPA to arrange an appointment for a CVAC or providing them with medical evidence was provided.  The delegate subsequently refused the visa application on the basis of the lack of a CVAC on 29 January 2020.

18. The applicant subsequently applied to the Tribunal for a review of the delegate’s refusal on 17 February 2020.

19. On 9 September 2020 the Tribunal wrote to the applicant through her representative noting the requirement for the grant of a Carer visa that, at the time when the decision was made, the applicant must be a carer of another person.  The Tribunal pointed out that to meet the definition of the term ‘Carer’, contained in reg 1.15AA, the applicant must provide a CVAC in relation to the medical assessment carried out on behalf of BUPA which specifies an impairment rating of at least 30 under the Impairment Tables.

20. The applicant was asked to provide to the Tribunal evidence the applicant had obtained a CVAC in relation to a medical assessment carried out by BUPA with an impairment rating of 30 or above.  The Tribunal asked that if the applicant had not obtained a new certificate, but intended to obtain one, they provide evidence that arrangements were being made to obtain a certificate. 

21. On 18 November 2020 the Tribunal wrote to the applicant again through her representative noting that the applicant had failed to provide any documentation or a response to its correspondence of 9 September 2020.  The applicant was requested to provide advice whether the applicant intended to provide the CVAC as requested in the Tribunal’s correspondence of 9 September 2020.

22. On 21 November 2020 the applicant’s representative wrote to the Tribunal stating the applicant and her family were trying to arrange a Carer visa medical assessment through BUPA.  The Tribunal acknowledges that the applicant provided correspondence dated 4 November 2020 from BUPA Medical Visa Services acknowledging all required documentation to proceed with a Carer visa medical assessment had been received and forwarded to the closest BUPA Medical Visa Services Centre.  The correspondence stated that a member of the BUPA central support team would contact the Australian resident requiring care (the applicant’s brother) to organise an appointment time. 

23. No further information or update was received from the applicant. 

24. On 9 July 2021 the Tribunal again wrote to the applicant through her representative stating that the Tribunal had attempted to contact the applicant regarding the status of her review.  The Tribunal asked if it was still the intention to undertake the BUPA medical assessment for the purposes of the Carer visa.  The Tribunal asked the applicant to advise it when such an assessment would occur, and when the applicant anticipated providing the outcome.

25. No response was received from the applicant in response to the Tribunal’s correspondence of 9 July 2021.

26. On 20 November 2023 the Tribunal invited the applicant through her representative to attend a hearing to give evidence and present arguments relating to the issues in the case on 6 December 2023.  The invitation stated that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

27. As discussed previously, the applicant failed to appear at the scheduled hearing.  No contact has been made with the Tribunal by the applicant or her representative since the failure to appear at the 6 December 2023 scheduled hearing. 

28. The Tribunal notes that the applicant failed to provide the delegate with the required BUPA CVAC despite the delegate’s requests.

29. The applicant applied for review of the delegate’s refusal with the Tribunal almost four years ago at the time of decision. 

30. The Tribunal notes that despite the considerable period of time that has elapsed since applying for review, the applicant has still failed to provide the Tribunal with evidence of a completed CVAC as required to meet the requirements of reg 1.15AA(2).

31. The Tribunal acknowledges that the applicant did some three years ago write to the Tribunal with evidence that they were trying to arrange a Carer visa medical assessment for the Australian resident needing care through BUPA.   No evidence however subsequent to this correspondence of November 2020 has been provided.  There is no evidence to suggest that the Australian resident has in fact subsequently undertaken a BUPA assessment, or if he did, whether the certificate concluded the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

32. The Tribunal notes that it has attempted to engage with the applicant.  The Tribunal wrote to the applicant in July 2021 seeking an update from the applicant as to whether it was still the intention to undertake the BUPA medical assessment for the purposes of the Carer visa.  No response was ever received.  The applicant was invited on 20 November 2023 to attend a hearing in respect of the decision to refuse her Carer visa application.  She was invited to send any documentation relevant to the case – which obviously would have included the CVAC – to the Tribunal.  No response was received.

33. The Tribunal considers the applicant has been provided with adequate time to provide evidence of a BUPA assessment and a subsequent CVAC for the purposes of regs 1.15AA(1)(b) and (2).  The Tribunal accepts there were delays in undertaking CVAC assessments during the COVID-19 pandemic.  In the absence of any contrary evidence, it does not accept that those delays would have now delayed a BUPA assessment by now over three years. No explanation has been provided for the continual delay.  The applicant has furthermore failed to remain engaged with their review with the Tribunal now for what would appear to be several years.

34. The Tribunal finds that the applicant has not provided a CVAC that meets the requirements of reg 1.15AA(2) and reg 1.15AA(1)(b).

35. There is no CVAC before the Tribunal which states:         

    ·   the resident or a member of the family unit has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life;

    ·   the impairment has an impairment table rating specified in the certificate;

    ·   because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

36. The Tribunal finds that no certificate has been provided that meets the requirements of reg 1.15AA(2). Further, there is no certificate that addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are not met.

37. Given these findings, 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.

38. 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.

39. The evidence before the Tribunal is that the applicant was born on 1 March 1962. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa as she is not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.

40. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa. The test in reg 1.15(2) is about whether the applicant is the remaining relative of her Australian citizen resident sponsor, her brother. The Tribunal has considered whether the applicant has no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens. In the applicant’s Form 47OF ‘Application for migration to Australia by other family members’ dated 4 October 2019, the applicant declares she has two sisters who reside in the United States of America and The Philippines respectively, and neither are Australian citizens, permanent residents, or eligible New Zealand citizens.  The applicant furthermore declares she has two daughters who reside in the United Arab Emirates (UAE) and The Philippines respectively, and neither are Australian citizens, permanent residents, or eligible New Zealand citizens.  The applicant subsequently has both children and siblings who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia.  The applicant subsequently has near relatives as per reg 1.15(2)(a) and reg.1.15(2)(b)(i) and is therefore not a remaining relative as per reg 1.15(1).  As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.

    DECISION

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

    Justin Owen
    Deputy President

    
    

    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.