Luu (Migration)

[2021] AATA 1683

Luu (Migration) [2021] AATA 1683 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ngoc Bich Luu

CASE NUMBER:  1908015

HOME AFFAIRS REFERENCE(S):          CLF2018/45525

MEMBER:Margie Bourke

DATE:13 April 2021

PLACE OF DECISION:  Melbourne

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.836.213 of Schedule 2 to the Regulations.

Statement made on 13 April 2021 at 12:23pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship requirements – Australian relative – person with the medical condition is not the sponsor – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 836.212, 836.213, 836.221; r 1.15

CASES

Nguyen v MICMSMA [2020] FCA 1732

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 March 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 30 April 2018. 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.836.213, which requires that the applicant is sponsored by the Australian relative, and cl.836.221 which requires that the applicant is a carer of an Australian relative (that is referred to in cl.836.212).

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate found that the person with the medical condition is neither the resident nor a member of the family unit of the resident, and therefore the applicant did not meet the definition of carer for the requirements of r.1.15AA. (The delegate did refer to cl.836.221 and cl.836.212 in the final page of the decision record as if they were the same provision.)

4. I have considered the information available to the Department, and to the tribunal.  The tribunal accepts there has been a change in caselaw in the interpretation of who can sponsor the visa applicant, in circumstances when the visa applicant can still meet the requirements of carer set out in r.1.15AA, after the Department decision, and in place at the time of the tribunal review. In these circumstances the tribunal has decided it can make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

5. The delegate’s decision is dated 14 March 2019.  The tribunal has applied the principles espoused in Nguyen v MICMSMA [2020] FCA 1732, which found that the sponsorship requirements in cl.836.213 do not expressly require that the Australian relative sponsor, and the Australian relative person with the medical condition requiring care have to be the same person.  As the caselaw in relation to the interpretation of the requirements of “the Australian relative” in cl.836.213 has changed since the Department decision, and this change in caselaw directly impacts the findings in the Department decision, it is appropriate that the tribunal make a finding in relation to the sponsorship requirements in cl.836.213.

6. I am satisfied that the sponsor is the applicant’s uncle, and meets the requirements of cl.836.213, that is he is an Australian citizen, over the age of 18 years and usually resident in Australia. Therefore the applicant meets the requirements of cl.836.213.

7. Based on the principles of Nguyen v MICMSMA, the applicant can potentially meet the requirements of carer, although the person with the medical condition is not the sponsor. I am satisfied that the person with the medical condition requiring care is the applicant’s grandmother, and the applicant is a relative of the Australian resident with the medical condition.  In these circumstances it is appropriate that this matter be remitted back to the Department for consideration as to whether the applicant meets all the requirements that the applicant is the carer of an Australian relative as set out in r.1.15AA(1)(a) –(f) and (2).  The tribunal does not make any findings in relation to cl.836.221 in this decision.

8. For the above reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   DECISION

9. 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.836.213 of Schedule 2 to the Regulations.

   Margie Bourke
   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.