Devi (Migration)

[2024] AATA 4008

Devi (Migration) [2024] AATA 4008 (7 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sharmila Devi

REPRESENTATIVE:  Mrs Kamlesh Singh (MARN: 9682717)

CASE NUMBER:  2100980

HOME AFFAIRS REFERENCE(S):          CLF2020/1804

MEMBER:Alison Murphy

DATE:7 October 2024

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 07 October 2024 at 1:10pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Australian relative’s impairment rating lower than specified – not eligible for other subclass visas – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(b), (c), (2), Schedule 2, cl 826.221

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 14 January 2021 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 17 January 2020. 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. 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 applicant to be a ‘carer’ of an Australian relative.

4. The delegate refused to grant the visa on the basis that 836.221 was not met because the applicant did not come within the definition of ‘carer’ as set out in r 1.15AA. This was because the Carer Visa Assessment Certificate provided by the applicant recorded that the Australian relative for whom the applicant claimed to be a carer had an impairment rating of 10, being a rating that was lower than the rating of 30 required by Regulation 1.15AA(1)(c). It followed that the delegate did not accept the applicant met the criteria set out in cl 836.221 of Schedule 2 to the Regulations.

5. The applicant was represented in relation to the review. The applicant was invited to appear before the Tribunal on 19 September 2024 to give evidence and present arguments.

6. On 18 September 2024 the Tribunal was advised by the applicant’s representative by telephone and in writing that the applicant would not be attending the hearing. On the same date the response to the hearing invitation was returned to the Tribunal stating that neither the applicant nor her representative would participate in the hearing and the applicant consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. In these circumstances the Tribunal considers it appropriate to make a decision on the review without further hearing pursuant to s 360(2)(b).

7. No further evidence was submitted to the Tribunal by the applicant. 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

8. 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.

9. Regulation 1.15AA(1)(b) requires that a certificate, which meets 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.

10. 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 14/085, or issued by a specified health provider in relation to a review of such an opinion.

11. The applicant has provided a Carer Visa Assessment Certificate dated 13 January 2020 from Bupa Medical Visa Services, which is the health provider specified by the Minister in LIN 14/085. That certificate relevantly species that the Australian relative (resident) has a medical condition causing impairment of her ability to attend to practical aspects of daily life; assigns an impairment rating of 10 and states that because of the medical condition, the Australian relative has a need for direct assistance in attending to the practical aspects of daily life and will continue to do so for at least 2 years.

12. Regulation 1.15AA(1)(c) provides that the impairment rating specified in the certificate must be equal to, or exceed, the impairment rating specified by the Minister in a legislative instrument. The relevant instrument for these purposes is IMMI 07/012 and it specifies that the impairment rating for the purposes of reg 1.15AA(1)(c) is 30.

13. In the present case, the impairment rating specified in the certificate is 10. This rating is below the impairment rating specified by the relevant instrument and therefore does not meet the requirements of reg 1.15AA(1)(c). No further certificate was submitted to the Tribunal by the applicant. It follows that the applicant cannot come within the definition of ‘carer’ set out in reg 1.15AA.

14. 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.For these reasons the applicant does not meet the criteria for a Subclass 836 visa.

15. 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.

16. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

17. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as Part G of the Form 47 submitted by the applicant states that the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

    DECISION

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

    Alison Murphy
    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.