Fatfat (Migration)

[2023] AATA 3640

Fatfat (Migration) [2023] AATA 3640 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Tayba Fatfat
Mr Mohamad Ossman Taleb
Mr Abdul Rahman Ossman Taleb
Mr Omar Ossman Taleb
Mr Walid Ossman Taleb

REPRESENTATIVE:  Ms Fatoum Souki, Souki Lawyers

CASE NUMBER:  1907331

HOME AFFAIRS REFERENCE(S):          CLF2018/8465

MEMBER:Michael Ison

DATE:30 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the requirements of reg 1.15AA(1)(a), (1)(b), (1)(ba) and (1)(c) for the purposes of clauses 836.212 and 836.221 of Schedule 2 to the Regulations for the grant of a Subclass 836 (Carer) visa.

Statement made on 30 October 2023 at 4:45pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – no CVAC impairment rating at time of delegate’s decision – child requiring care still undergoing treatment, with condition not stabilised and prognosis unclear – CVAC now issued – child’s need for personal care and attention on daily basis – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(a), (b), (ba), (c), (2), Schedule 2, cls 836.212, 836.221, 836.311, 836.321

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 7 March 2019 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background 

2. The first named applicant in this review is Ms Tayba Fatfat who is 53 years of age and is a national of Lebanon.  Ms Fatfat is referred to as the applicant or first named applicant in these reasons for decision.

3. The applicant first arrived in Australia on 29 April 2014 as the holder of a Temporary Work (Skilled) (Class UC) (Subclass 457) visa, as the dependant visa applicant of her spouse Mr Mohamad Ossman Taleb, which was valid to 7 April 2018.

4. On 29 January 2018 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) Carer visa while in Australia on the basis that the applicant claims that she is a relative of her sponsor Mr Rateb Ali, who is claimed to be the applicant’s son-in law. Mr Mohamad Ossman Taleb (the applicant’s husband) and her three sons Mr Abdul Rahman Ossman Taleb, Mr Omar Ossman Taleb and Mr Walid Ossman Taleb were also included in this Other Family (Residence) (Class BU) (Subclass 836) Carer visa application as members of the family unit of the applicant.

5. Mr Mohamad Ossman Taleb, Mr Abdul Rahman Ossman Taleb, Mr Omar Ossman Taleb and Mr Walid Ossman Taleb are referred to the second, third, fourth and fifth named applicant’s respectively or collectively as the secondary applicants in these reasons for decision.

6. The visa applications were refused on 7 March 2019. It is the refusal to grant the applicants’ Carer visas that is the subject of this review.

7. Mr Rateb Ali, who is 34 years old, provided evidence to the Department, which the Tribunal accepts, that he had Australian citizenship conferred on 22 May 2013. Mr Ali is referred to as the sponsor in these reasons for decision.

8. Master Ali Omar, the sponsor’s son, is 8 years old and is an Australian citizen. Master Omar is the applicant’s grandson and is the person who has a medical condition in circumstances where it is claimed his parents alone cannot provide the care he needs leading to the Carer visa application by the applicant. Master Omar is referred to as the resident in these reasons for decision.

9. The applicant has provided evidence to the Department, which the Tribunal accepts, that shows that the resident is the maternal grandson of the applicant and Mr Ali is the son-in-law of the applicant.

10. The applicant was subsequently granted a Bridging A (Subclass 010) visa on 29 January 2018, which the applicant continues to hold at the time of this decision. The applicant’s Bridging A visa has no conditions from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.

11. According to a Carer Visa Assessment Certificate (CVAC) dated 15 June 2018, the examining doctor of the resident in this matter, Master Omar, based on the medical reports from Dr Molly Williams, Paediatric Oncologist at the Royal Children’s Hospital in Melbourne dated 13 October 2017 and 3 November 2017, and the report from Ms Soraya McGartland, Social Worker at the Royal Children’s Hospital in Melbourne dated 8 November 2017,  was unable to attribute any impairment rating to the resident’s medical condition under the relevant impairment tables because the resident’s medical condition had not stabilized, his prognosis was unclear and he was still undergoing treatment that may affect his prognosis at that time.

    The primary decision of a delegate of the Minister

12. The applicant provided the Tribunal with a copy of the primary decision.

13. The applicant applied for the visa on 29 January 2018. At that time, Class BU contained three subclasses, that Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Regulations.

14. 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.

15. Clause 836.221 provides:

    The applicant is a carer of a person referred to in clause 836.212.

16. Clause 836.212 provides:

    The applicant claims to be the carer of an Australian relative.

17. ‘Australian relative’ is defined in reg 1.03 and for an applicant means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

18. ‘Carer’ is defined in reg 1.15AA which is reproduced in the attachment to this Decision.

19. The delegate refused to grant the visas on the basis that cl 836.221 was not met because at the time of the delegate’s decision the resident did not have a CVAC that assigned his medical condition an impairment rating that is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this purpose and therefore was not a ‘carer’ as that term is defined in reg 1.15AA.

    Tribunal decision

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether at the time this decision the applicant is a ‘Carer’ as that term is defined in reg 1.15AA given at the time of the primary decision, the applicant did not meet cl 836.221 because she did not meet reg 1.15AA(1)(b) and (c): that is, whilst she may have been caring for the resident, the resident did not have a CVAC assigning him an impairment rating at the level required for the grant of a Carer visa.

    Whether the applicant is a carer

22. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’).

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

23. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s grandson and for the reasons set out in paragraphs seven to nine of these reasons the Tribunal accepts that the resident is the grandson of the applicant.

24. Therefore, as the applicant is the grandmother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

25. 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.

26. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).

27. A CVAC has been issued in this case. The CVAC has been issued by a registered medical practitioner employed or contracted by Bupa who signed the most recent certificate on 4 October 2023.

28. According to the CVAC dated 4 October 2023 (the Certificate), the resident has been assessed as having an impairment rating of 30 under the relevant Impairment Tables. The doctor who completed the CVAC stated that the resident has been diagnosed with opsoclonus myoclonus syndrome which affects his brain function, secondary to stage 1 neuroblastoma, which was diagnosed in January 2017. These conditions were assessed as adversely and permanently impacting the resident’s brain function (Table 7) with a functional impairment present and also communication (Table 8) with a functional impairment present. The examining doctor stated the resident’s medical condition has resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and the resident is in need of constant supervision or monitoring because he may be a danger to himself of others. The doctor diagnosed those care needs as being permanent (at least 2 years).

29. The Tribunal finds that the Certificate provided does meet the requirements of reg 1.15AA(2). Further, the Certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

30. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

31. In the present case, the person with the medical condition is the resident Master Omar who the Tribunal has found is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

32. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.

33. In the present case, the impairment rating specified in the CVAC dated 4 October 2023 is 30. This rating equals the minimum impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

34. The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.

    Overall conclusion

35. Given the change in circumstances of the resident at the time of this decision by having a valid CVAC that assigns his medical condition the required impairment rating for the grant of a Carer visa, the appropriate action for the Tribunal is to remit the applications for Carer visas back to the Minister for reconsideration, with appropriate directions in relation to the CVAC dated 4 October 2023.

36. For these reasons, the Tribunal did not assess the remaining criteria for the grant of the primary and secondary Carer visas.

    Conclusion – first named applicant Ms Tayba Fatfat

37. For the reasons set out above the Tribunal finds the first named applicant meets the requirements of reg 1.15AA(1)(a), (1)(b), (1)(ba) and (1)(c).

38. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the grant of a Subclass 836 visa.

    Conclusions secondary applicants – Mr Mohamad Ossman Taleb, Mr Abdul Rahman Ossman Taleb, Mr Omar Ossman Taleb and Mr Walid Ossman Taleb

39. Secondary applicants are eligible for the grant of the Carer visas if they satisfy the secondary criterion in cl 836.311 at the time of application and in cl 836.321 at the time of the Tribunal’s decision.

40. As the Tribunal has found that the first named applicant, who is the primary applicant for the Carer visa, now meets some of the criteria in reg 1.15AA to be considered a ‘carer’ for the purposes of clauses 836.212 and 836.221, the Tribunal did not assess whether the secondary applicants yet meet the secondary criteria for the grant of Carer visas. This is because the assessment of whether the first named applicant for a Carer visa meets all of the criteria to be considered a ‘carer’ and to be granted a Carer visa is yet to be completed.

    DECISION

41. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the requirements of reg 1.15AA(1)(a), (1)(b), (1)(ba) and (1)(c) for the purposes of clauses 836.212 and 836.221 of Schedule 2 to the Regulations for the grant of a Subclass 836 (Carer) visa.

    Michael Ison
    Senior 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.