El Masri (Migration)

[2020] AATA 6052

El Masri (Migration) [2020] AATA 6052 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mouna El Masri

CASE NUMBER:  1820467

HOME AFFAIRS REFERENCE(S):          CLF2016/83311

MEMBER:Kira Raif

DATE:10 December 2020

PLACE OF DECISION:  Sydney

DECISION: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

Statement made on 10 December 2020 at 5:06pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate provided – evidence of medical assessment provided – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, 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 26 June 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Lebanon, born in September 1970. She applied for the visa on 27 October 2016. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. 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.

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

   Relevant law

6. 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. Relevantly to this matter, the primary criteria to be met include cl.836.221.

7. 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 r.1.15AA of the Regulations.

   Whether the applicant is a carer

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be a carer of her grandmother, Ms Houda El Homsi. The applicant provided with her primary application evidence of having sought the Carer Visa Assessment Certificate (CVAC) and she subsequently provided a copy of the Certificate which had the impairment rating of 20. In November 2017 the delegate wrote to the applicant advising that the impairment rating did not meet the statutory requirement and the applicant stated that she would be applying for the new CVAC. At the time of the primary decision, the applicant had not provided a new Certificate with the prescribed impairment rating.

9. In January 2019 the Tribunal wrote to the applicant asking her to provide evidence of having taken steps to obtain a new CVAC, if she wished to obtain one. The applicant provided a copy of the earlier Certificate with the impairment rating of 20 and no evidence of having sought another Certificate.

10. On 28 October 2020, shortly before the commencement of the hearing, the applicant provided further evidence to the Tribunal. This includes a copy of the 2018 BUPA certificate with an impairment rating of 20 and evidence of having made contact with BUPA for a new certificate. The applicant’s representative Mr Houssam Hayba provided a submission addressing the sponsor’s needs and available resources ten minutes prior to the commencement of the hearing. The Tribunal finds such late submission of evidence less than helpful.

11. In oral evidence, the applicant explained that the first Carer certificate did not take account of the sponsor’s physical circumstances. The applicant stated that she is making arrangements to obtain a new Certificate but there was delay due to Covid-19. The Tribunal is mindful that its first invitation to provide an updated CVAC was made in 2019, well before Covid and it is unclear to the Tribunal why the applicant or her representative had not taken the necessary steps then to obtain a new CVAC. Nevertheless, the Tribunal granted the applicant more time to obtain a new Certificate. On 10 December 2020 the Tribunal received from the applicant a new CVAC in relation to the sponsor dated 26 November 2020 which shows an impairment of 30.

12. The Tribunal is satisfied that the recent CVAC dated 26 November 2020 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.

13. 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

14. 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

15. 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