Nagy (Migration)

[2020] AATA 5446

Nagy (Migration) [2020] AATA 5446 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zoltan Nagy

CASE NUMBER:  1819007

HOME AFFAIRS REFERENCE(S):          CLF2017/13796

MEMBER:Kira Raif

DATE:28 October 2020

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:

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

Statement made on 28 October 2020 at 12:11pm

CATCHWORDS

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

LEGISLATION

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

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 26 June 2018 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 1 February 2017. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.  

3. The applicant appeared before the Tribunal on 21 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Hungarian and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

5. At the time the application was made, 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.

6. 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. The issue in the present case is whether the applicant is a carer of his Australian relative.   

   Whether the applicant is a carer

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the applicant claimed to be a carer of Ms Iren Nagy, his sister. The applicant provided with his application evidence that Ms Nagy had made an appointment with Bupa Medical Visa Services but the applicant failed to provide the Carer Visa Assessment Certificate (“Carer certificate”). As a result, the delegate was not satisfied the applicant was a carer of his Australian relative.

8. The applicant provided to the Tribunal a number of documents, which include several medical reports relating to the sponsor and a Carer Certificate. The certificate outlines the sponsor’s medical condition and provides an impairment rating of 20. On 27 October 2020 the Tribunal received an updated Carer Certificate in relation to the sponsor. That Certificate had an impairment rating of 45.

9. The Tribunal is satisfied that the most recent Carer Certificate provided during the review 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). Accordingly, the requirements of r.1.15AA(1)(b) and (c) are met.

10. 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. 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

11. 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

12. 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:

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

    Kira Raif
    Senior Member