Mills (Migration)

[2022] AATA 5176

Mills (Migration) [2022] AATA 5176 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Emma Jane Mills
Mr Nathan Glen Mills
Miss Daisy-Grace Emma Mills
Mr Harrison John Nicholas Mills
Mr James Nathan Mills

REPRESENTATIVE:  Mr Kian Bone (MARN: 1069183)

CASE NUMBER:  1927499

HOME AFFAIRS REFERENCE(S):          CLF2018/355359

MEMBER:Meena Sripathy

DATE:11 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·Regulation 1.15AA(2) and regulation 1.15AA(1)(b) and (c) for the purpose of cl.836.221 of Schedule 2 to the Regulations.

Statement made on 11 July 2022 at 10:37am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – Carer Visa Assessment Certificate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 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 18 September 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).

2. The applicants applied for the visa on 4 October 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 visas on the basis that cl 836.221 was not met because as the applicant had not provided a Carer Visa Assessment Certificate that meets the requirements of sub regulation 1.15 AA(1)(c).

4. The applicants seek a review of that decision.

5. On 1 March 2022 the applicants provided evidence to the Tribunal of a Carer Visa Assessment Certificate.  The Tribunal has determined that since the relevant documentation has been provided a decision could be made on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant is a carer

7. 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.

8. The applicants provided to the Tribunal a copy of the primary decision record. It indicates the first named applicant provided with her application evidence of having made arrangements to obtain a Carer Visa Assessment Certificate (CVAC) for her father, the sponsor, Martin Thorne but, as at the date of the delegate’s decision, she had not provided such a certificate. As a result, the delegate was not satisfied the applicant had provided a CVAC that meets the requirements of subregulation (2) of reg 1.15AA.

9. 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), or issued by a specified health provider in relation to a review of such an opinion.

10. 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.

11. 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.  In the present case the relevant instrument is IMMI 17/126, specifying an impairment rating of 30.

12. On 1 March 2022 the Tribunal received a Carer certificate from BUPA dated 17 February 2022. That certificate specifies that Martin Thorne is a person who has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The Certificate indicates that there is a need for direct assistance in attending to the practical aspects of daily life because of the medical condition and that the need for direct assistance will continue for at least 2 years. The Certificate indicates that an impairment rating of 40 has been assigned.

13. The Tribunal is satisfied that the Carer Certificate provided during the review is issued by BUPA, which is the health provider specified in the relevant instrument and, accordingly,  meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv) and indicates an impairment rating of 40, which exceeds the impairment rating specified in the relevant legislative instrument, indicated above. Accordingly, the requirements of r.1.15AA(1)(b) and (c) are also met.

14. The Tribunal is mindful that the delegate had not assessed the remaining requirements of r. 1.15AA, having made a finding that there was no relevant Carer certificate. In such circumstances, the Tribunal has formed the view that the most appropriate action is to remit the matter for reconsideration to allow the delegate to assess the remaining criteria.

15. Should the delegate find that the applicant does not meet the requirements for the grant of the visa, the applicant will have the opportunity to seek review in relation to such findings.

    CONCLUSION

16. 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

17. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·Regulation 1.15AA(2) and regulation 1.15AA(1)(b) and (c) for the purpose of cl.836.221 of Schedule 2 to the Regulations.

    Meena Sripathy
    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.