El Omari (Migration)

[2020] AATA 4828

El Omari (Migration) [2020] AATA 4828 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yesser El Omari

CASE NUMBER:  1932416

HOME AFFAIRS REFERENCE(S):          CLF2019/27467

MEMBER:Kira Raif

DATE:18 November 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 18 November 2020 at 11:48am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer visa assessment certificate 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 5 November 2019 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 applied for the visa on 2 July 2019. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the applicant did not provide the requisite Carer Visa Assessment Certificate and the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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. The issue in the present case is whether the applicant is a carer of an Australian relative.   

   Whether the applicant is a carer

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was requested during the processing of her application to provide the Carer Visa Assessment Certificate (‘the Carer Certificate’) but has not done so. As a result, the delegate was not satisfied that the applicant met the definition of ‘carer’ in r. 1.15AA and that she was a carer for the purpose of cl. 836.221.

7. In September 2020 the Tribunal wrote to the applicant inviting her to provide the Carer Certificate. On 13 October 2020 the applicant provided to the Tribunal a Carer Certificate in relation to the sponsor. That Certificate outlines the sponsor’s medical condition and provides an impairment rating of 30.

8. The Tribunal is satisfied that the most recent Carer Certificate 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.

9. 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

10. 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

11. 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