Matakaiongo (Migration)

[2021] AATA 5498

Matakaiongo (Migration) [2021] AATA 5498 (14 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lata I Onevai Matakaiongo

CASE NUMBER:  1900554

HOME AFFAIRS REFERENCE(S):          CLF2018/48095

MEMBER:M. Edgoose

DATE:14 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 14 September 2021 at 10:25am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – certification – Carer Visa Assessment Certificate (CVAC) – impairment rating of 15 points – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; 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 Home Affairs on 19 December 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 May 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 (Cth) (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.

4. The applicant appeared before the Tribunal on 14 September 2021 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   APPLICANT CLAIMS TO BE CARER

   Whether the applicant has claimed to be the ‘carer’

6. 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 aunty.

7. 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 reg 1.03 of the Regulations.

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

   APPLICANT IS A CARER

   Whether the applicant is a carer

9. 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 reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

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

10. 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 aunty.

11. Therefore, as the applicant is the sister 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)

12. 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.

13. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085.

14. According to the delegate’s decision on 1 June 2018 the applicant provided a Carer Visa Assessment Certificate (CVAC) dated 15 May 2018 for Ms Leleane Lausii, with an overall impairment rating of 15 points and therefore did not meet the minimum rating of 30. On 15 November 2018 the applicant was advised that she may not meet the criteria for the grant of a carer visa and was invited to comment. Within this invitation to comment was the opportunity for the applicant to demonstrate if she had undertaken any steps to arrange a reassessment of the CVAC impairment rating for the sponsor. On 27 November 2018 the applicant advised the Department that the resident would be travelling overseas for 3 to 4 months and that on return to Australia in March 2019 would arrange for a further CVAC. At time of the delegate’s decision on 19 December 2018 the applicant had not provided the Department with a further CVAC. The applicant confirmed at hearing that the sponsor has not undertaken a further CVAC assessment since 19 December 2018.

15. The applicant further informed the Tribunal that the sponsor departed Australia in October 2018 and has not returned to Australia since.

16. At time of this decision the applicant has not provided the Tribunal with a further CVAC assessment. Therefore the Tribunal finds that the certificate provided does not meet the requirements of reg 1.15AA(2). Accordingly, the requirements of reg 1.15AA(1)(b) are not met.

17. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    M. Edgoose
    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.