LI (Migration)

[2018] AATA 1165

LI (Migration) [2018] AATA 1165 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ZHAOLING LI

CASE NUMBER:  1701336

DIBP REFERENCE(S):  CLF2016/2622

MEMBER:Russell Matheson

DATE:4 April 2018

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:

·cl.836.212 of Schedule 2 to the Regulations.

Statement made on 04 April 2018 at 3:14pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Visa applicant – Carer for her permanent resident mother – Valid Carer Visa Assessment Certificate provided

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15AA Schedule 1 Item 1123B Schedule 2 cls 836.111, 836.212, 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 Immigration on 24 January 2017 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 57 year old female national of China. She applied for the visa on 13 January 2016. 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 (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.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the applicant is unable to meet the requirements of a Carer as defined in Regulation 1.15AA.

4. The applicant appeared before the Tribunal on 27 March 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant has applied for the grant of a Subclass 836-Carer (Residence) visa on the basis that she is providing direct assistance to the sponsor, Ms Yuqin Hua.

8. The issue in the present case is whether the applicant has provided a valid CVAC certificate demonstrating that the person who needs care Ms Hua, continues to have a medical condition causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life; and the impairment has; under the Impairment Tables, the rating that is specified in the certificate; and because of the medical condition, Ms Hua has, and will continue for at least 2 years to have, a need for direct assistance in attending the practical aspects of life.

9. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

10. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the applicant has claimed to be a ‘carer’

11. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s mother. The applicant has demonstrated that she is the daughter of the resident Ms Hua.

12. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

13. The applicant at the time of application (13 January 2016) claimed to be the carer of her mother who is an Australian permanent resident. The applicant provided a Carer Visa Assessment Certificate (CVAC) for the resident Ms Yuqin Hua. The certificate assigned a total rating of 35 to the resident. However, the certificate was dated 16 October 2013.

14. As the CVAC provided with the application was more than two years old, on 31 March 2016 the Department requested that the applicant provide a new CVAC for Ms Hua.

15. On 6 May 2016 the applicant provided a copy of an email to the Department that was sent from BUPA to Ms Hua stating that they had received all the required documentation to proceed with her carer medical assessment and would contact her to arrange an appointment.

16. On 16 May 2016 a further request for further information was sent to the applicant from the Department and the applicant provided information that arrangements were being made to obtain a new CVAC. The Department also reminded the applicant in the correspondence sent that she should forward the BUPA CVAC report when she received it. At the time of the delegates decision made on the 24 January 2018 no further information regarding the new CVAC had been received for Ms Hua and the delegate refused the visa application.

17. The applicant has provided evidence to the Tribunal that she received a copy of the new CVAC assessment from BUPA dated 17 July 2016 in the mail and posted the sealed envelope containing the CVAC assessment to the Department on 18 July 2016. The applicant stated that she received correspondence from the Department on 19 July 2016 requesting that she provide police certificates of her criminal history. She further stated that she believed that the only outstanding document required by the Department was her criminal history check because she had already mailed the new CVAC assessment. She further stated that she assumed the Department had received the Medial Advisors Report and the CVAC documents that had been previously posted. The applicant said that she believed the Department would have requested her to provide the CVAC report if they had not already received it after she had posted it on 18 July 2016.

18. On 24 January 2017 the same day the delegate refused the visa application, the applicant’s agent emailed a scanned copy of the new CVAC assessment to the Department (folio’s 221-226). The applicant has also provided as evidence a scanned copy of the BUPA assessment undertaken by Ms Hua on 17 July to the Tribunal. The certificate has been signed by Dr Montero a Medical Officer of the Commonwealth on 11 July 2016. The certificate indicates that the resident Ms Hua has an impairment rating of 30. The resident had previously provided a CVAC to the Department in 2013 that indicated an impairment rating of 35 for the resident Ms Hua.

19. The current CVAC dated 11 July 2016, states that the total impairment rating for the resident Ms Hua is 30. Ms Hua has been diagnosed with Parkinson’s disease and as a result her condition requires the need for personal care and attention on a daily basis to carry out routine bodily functions and the condition is permanent.  The Tribunal was told at the hearing, the applicant (daughter) has to assist the resident (mother) with bathing/showering, toileting, dressing/grooming, eating and transportation.

20. The Tribunal is satisfied the Carer Visa Assessment Certificate (CVAC) dated 11 July 2016 is valid.

    Findings

21. The applicant has previously demonstrated to the Department that she is the daughter of Ms Hua an Australian permanent resident. The Tribunal finds the applicant meets Regulation 1.15AA(1)(a).

22. The applicant has provided a valid CVAC certificate demonstrating that the person who needs care Ms Hua, continues to have a medical condition causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life; and the impairment has; under the Impairment Tables, the rating that is specified in the certificate; and because of the medical condition, Ms Hua has, and will continue for at least 2 years to have, a need for direct assistance in attending the practical aspects of life. The Tribunal finds applicant meets Regulation 1.15AA(1)(b)

23. The Tribunal is satisfied the resident Ms Hua, has a medical condition that has a rating impairment of 30. The applicant has provided a valid Carer Visa Assessment (CVAC) to the Tribunal dated the 11 July 2016. The Tribunal finds the applicant meets Regulation 1.15AA(1)(c).

24. As a result and after considering the evidence individually and as a whole the Tribunal is satisfied that the applicant meets Regulation 1.15AA.

25. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and met the requirements of cl.836.212.

26. Tribunal is satisfied at the time of decision the applicant meets the requirements as defined in Regulation 1.15AA (a), (b), (c) of a carer.

27. The Tribunal is satisfied that the applicant and meets cl.836.212 at the time of application.

28. 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

29. 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:

    ·cl.836.212 of Schedule 2 to the Regulations.

    Russell Matheson
    Member