Pham (Migration)

[2022] AATA 3468

Pham (Migration) [2022] AATA 3468 (1 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Nhat Hanh Pham
Mr Thanh Phong Nguyen
Master Hoang Nam Nguyen
Master Hoang Tuan Nguyen

REPRESENTATIVE:  Mr Ganasan Arujunan (MARN: 1383868)

CASE NUMBER:  2101371

HOME AFFAIRS REFERENCE(S):          CLF2019/44962

MEMBER:Maxina Martellotta

DATE:1 September 2022

PLACE OF DECISION:  Perth

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 (1) (a), (b), (ba) (c) and (d) for the purposes of cl.836.221 of Schedule 2 to the Regulations.

Statement made on 01 September 2022 at 10:52am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer – impairment rating – updated Carer Visa Assessment Certificate – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65, 360
Migration Regulations 1994, Schedule 2, cls 836.111, 836.211, 836.212, 836.221; rr 1.03, 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 18 January 2021 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 30 October 2019. 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 that at the time decision the applicant is a carer of an Australian relative (836.212).

3. The delegate refused to grant the visas on the basis that cl 836.211 not met because at the time of decision the first named applicant did not meet the definition of carer in reg. 1.15AA. Specifically, the applicant did not meet the requirement of having an impairment rating equal to or greater than the specified figure of 30. (regulation 1.15AA(1)(c))[1]

   [1] IMMI 07/012 Impairment rating (Regulation Impairment Rating).

4. The applicants initially appeared before the Tribunal on 5 July 2022.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal received a request that the hearing be postponed because the applicants were awaiting an appointment with BUPA medical visa services for the provision of an updated Carer Visa Assessment Certificate.

5. Following receipt of an updated Carer Visa Assessment Certificate (dated 23 August 2022) the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant has claimed to be the ‘carer’

8. Clause 836.212 of the Regulations requires that the applicant Ms Thi Nhat Hanh Pham claims to be the carer of an Australian relative. The other applicants are the husband and children of Ms Thi Nhat Hanh Pham.   In the present case, the visa applications are made on the basis that the first  applicant is the carer of her  mother.

9. 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.

10. The Tribunal reviewed the documents including the visa application and is satisfied and finds that that the first applicant claimed to be the carer of her mother at the time of application. The Tribunal is also satisfied and finds that the caree is an Australian relative and also an Australian Citizen.

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

    Whether the applicant is a carer

12. Clause 836.221 requires that at the time of decision, the first 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.

    Relative of the resident

13. Regulation 1.15AA(1)(a) requires the first 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 first applicant’s mother.

14. This relationship is confirmed by documents which include the first applicant’s birth certificate which identifies the caree as her mother. This relationship status is not in contention in the delegates decision and supported by documentation in the Department’s file.

15. On the available evidence which includes documents submitted with the application the Tribunal is satisfied the applicant is the daughter of the Australian relative and so meets the requirement of reg.1.15AA(1)(a).

    Certificates

16. 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.

17. 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. The relevant legislative instrument specifies BUPA Medical Visa Services[2].

    [2] IMMI 14/085

18. As noted, the substantive issue in this review related to the certification requirement pursuant to regulation 1.15AA(1)(b). The delegate in their decision had before them two Carer Visa Assessment Certificates. The first certificate dated is 30 December 2019  and a second is dated 5 November 2020 both certificates specify an impairment rating under the impairment tables.

19. An updated Carer Visa Assessment Certificate dated 23 August 2022 was provided to the Tribunal. That certificate is provided by BUPA Medical Visa Services and relates to a medical assessment of the Australian relative. The certificate is signed by the medical practitioner who undertook the examination. It states that the Australian relative has medical conditions which causes physical, intellectual, or sensory impairment of their ability to attend to practical aspects of daily life, they have a need for direct assistance attending to practical aspects of daily life due to the medical condition and this need will continue for at least two years. The certificate also specifies an impairment rating made under the impairment tables.

20. The Tribunal is satisfied and finds that the certificate dated 23 August 2022 meets the requirements of reg. 1.511AA(2) and further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv) . Accordingly, the requirements of reg 1.15AA(1)(b) met.

    Residency status of person with medical condition

21. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

22. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirement of reg 1.15AA(1)(ba) is met.

    Impairment rating

23. 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. The relevant instrument for these purposes is IMMI 17/126 it specifies an impairment rating of 30.

24. In the present case, the impairment rating specified in the certificate dated 23 August 2022   is 60. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

25. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

26. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

27. 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 (1) (a), (b), (ba) (c) and (d) for the purposes of cl.836.221 of Schedule 2 to the Regulations.

    Maxina Martellotta
    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.