McLannen (Migration) - [2020] AATA 6061

McLannen (Migration) [2020] AATA 6061 (4 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Lorelei McLannen
CASE NUMBER:  1910191
HOME AFFAIRS REFERENCE(S):          CLF2018/664
MEMBER:David Crawshay
DATE:4 December 2020
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.836.221 of Schedule 2 to the Regulations.

Statement made on 04 December 2020 at 12:29pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate – evidence of medical assessment provided – rating exceeds the impairment rating specified by the relevant instrument – applicant is willing and able to provide assistance – Australian relative – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 836.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 April 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).
The applicant applied for the visa on 4 January 2018 on the basis of being the carer of Mr Peter McLannen, who is the Australian resident. 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, which requires the applicant to be a carer of the Australian relative at the time of decision.
The delegate refused to grant the visa on the basis that cl.836.221 was not met because the Australian resident’s impairment rating of 20 in his Carer Visa Assessment Certificate (CVAC) was less than the required rating of 30. Because of this, the applicant did not satisfy subr.1.15AA(1)(c) within the definition of carer, and therefore did not meet cl.836.221.
The applicant appeared before the Tribunal on 23 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the Australian resident.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the carer of the Australian relative at the time of this decision.
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or “resident”).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLannen (Migration)

Details

AGLC: McLannen (Migration) [2020] AATA 6061
Case: [2020] AATA 6061
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Subclass 836 (Carer) visa. The applicant sought to establish that they were the carer of their Australian resident spouse. The Tribunal was required to determine whether the applicant met the criteria for being a carer as defined by the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 836.221 of Schedule 2 to the Regulations, which requires the applicant to be a carer of an Australian relative at the time of the decision. This involved assessing whether the applicant was a "relative" of the Australian resident and whether a valid certificate, meeting the requirements of regulation 1.15AA(2), was provided. The certificate needed to attest to the Australian relative's medical condition, the resulting impairments, the need for ongoing assistance, and the inability to obtain such assistance from other sources or services.

The Tribunal found that the applicant was a "relative" as they were the spouse of the Australian resident, evidenced by a marriage certificate. Furthermore, the Tribunal considered a Carer Visa Assessment Certificate (CVAC) dated 2 September 2020, issued by Bupa Medical Visa Services. The Tribunal noted that this certificate was signed by the medical adviser who conducted the assessment and stated that the Australian resident had a medical condition causing impairments affecting their daily life, requiring direct assistance for at least two years. The Tribunal concluded that this certificate met the requirements of regulation 1.15AA(2).

Given these findings, the Tribunal determined that the criteria for being a carer under clause 836.221 were met. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the specified criteria for a Subclass 836 visa had been satisfied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is the carer of the Australian relative at the time of this decision.Whether the applicant is a carer 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 which is set out in the attachment to this Decision.Applicant is a relative of the resident – r.1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant to be a “relative” of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a “close relative” or other specified relation). In the present case, the Australian relative is identified as the applicant’s spouse. The Tribunal has seen a copy of the marriage certificate of the applicant and Australian relative dated 6 December 2017. It has also seen other evidence that satisfies it that the other elements of s.5F(2) are satisfied Therefore, as the applicant is the spouse of the Australian relative, the applicant is a “relative” of the resident within the meaning of r.1.03 and meets the requirements of r.1.15AA(1)(a).Certification – r.1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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 two years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet r.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, or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC) dated 2 September 2020 in respect of the Australian relative. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that the Australian resident has a medical condition that is causing impairments of his ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the Australian relative has and will continue to have for at least two years a need for direct assistance in attending to the practical aspects of daily life.

Decision

Reasons for decision

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 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.836.221 of Schedule 2 to the Regulations.David CrawshayMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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