Del Mundo (Migration)

[2022] AATA 4342

Del Mundo (Migration) [2022] AATA 4342 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eleazar Mercado Del Mundo

REPRESENTATIVE:  Mr Robert Pi-En Hsu (MARN: 0640624)

CASE NUMBER:  2013229

HOME AFFAIRS REFERENCE(S):          CLF2018/190191

MEMBER:Andrew McLean Williams

DATE OF WRITTEN STATEMENT:         19 September 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 19 September 2022 at 9:39am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – relative deceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 11 August 2020 thereby refusing to grant the Review Applicant an ‘Other Family (Residence)’ (Class BU) visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 6 August 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 (Cth) (the Regulations).

3. Here, the Applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are as set out in Part 836 of Schedule 2 to the Regulations. Relevantly, the primary criteria to be met include cl 836.221, which requires the Applicant to be the carer of the person referred to in clause 836.212 at the time of the decision regarding any entitlement for the visa.  The person nominated as requiring care for these purposes was the Applicant’s mother, Ms Maxima Duke (deceased).

4. On 11 August 2020 the Delegate refused to grant the visa on the basis that cl 836.221 was not met because the Delegate was not satisfied that the Applicant was required to act as the carer for Ms Maxima Duke, by reason that the Delegate was not satisfied that Ms Duke’s requirements could not otherwise be met via welfare, hospital, nursing or community services already available in Australia.  Shortly after the Delegate’s decision the Applicant then commenced this application for review before the Tribunal.

5. The applicant was represented in relation to the review by his lawyer, Mr Pi-En Hsu.

6. The Tribunal gave its decision on the review at the conclusion of the hearing held on 16 September 2022. The following now are the written reasons for that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether - as at the date of the Tribunal’s decision - the Applicant is the carer for Ms Maxima Duke, an Australian relative of the Applicant. 

8. The Tribunal is satisfied that the Applicant is the son of Ms Maxima Duke.  However, it is also now a matter of record that Ms Duke died on 31 January 2022, such that it can no longer be claimed that the Applicant continues to act as the carer for Ms Duke as at the date of any decision regarding her care requirements.  Clause 836.221 in the Regulations is a ‘time of decision’ criteria.  As at the date of the Tribunal’s decision it is not possible for the Applicant to satisfy the requirements in clause 836.221.    

9. This is a matter that ought to have been evident to the Applicant’s representative lawyer Mr Pi-En Hsu since at least 11 April  2022, when Mr Pi-En Hsu advised the Tribunal of the fact of the death of Ms Maxima Duke by providing the Tribunal with a copy of her death certificate. 

10. Mr Pi-En Hsu now seeks Ministerial intervention on behalf his client, seemingly claiming what Mr Hsu describes as ‘jurisdictional error’ on the part of the Department.  However, no basis for Ministerial intervention is evident to the Tribunal.

    DECISION

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

    Andrew McLean Williams
    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.