Radic (Migration)

[2019] AATA 2672

Radic (Migration) [2019] AATA 2672 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Charlena Radic

CASE NUMBER:  1810337

HOME AFFAIRS REFERENCE(S):           CLF2017/107683

MEMBER:Kate Millar

DATE:24 June 2019

PLACE OF DECISION:   Perth

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

Statement made on 24 June 2019 at 5:29pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor deceased – applicant was not the carer of the sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, Schedule 2, cls 836.213, 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 11 April 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 9 November 2017. 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 (Carer) visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.836.213 was not met.  This was because the delegate was not satisfied that the applicant was sponsored as required.  Her sponsor had dementia and was subject to order appointing the Public Advocate and Public Trustee to manage his affairs and to make decisions about where he was to live and with whom he was to live.  The delegate found the applicant had not provided information to show that these entities supported her application.

4. The delegate was also not satisfied the applicant met cl.836.221, which requires that at the time of the decision, the applicant is the carer, as defined in the Regulations, of her sponsor.  The delegate was not satisfied she met this requirement because assessment by the Aged Care Assessment Team showed that the sponsor was eligible for Home Care Packages.  As a result, the delegate was not satisfied that the assistance the sponsor required could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.  The delegate also noted that the applicant had not provided evidence to support her claimed relationship to the sponsor as his niece.

5. The sponsor is now deceased, and the applicant provided a death certificate showing that he died on 2 April 2019.

6. The applicant appeared before the Tribunal on 24 June 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The delegate refused the visa on the basis that the applicant was not the carer of the sponsor as required by cl.836.221.  This remans in issue, in particular because at the time of this decision the sponsor is deceased. 

9. While this was a basis on which the delegate refused the visa, as the circumstances had changed and the sponsor was now deceased, it was also specifically put to the applicant at the hearing.

10. 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.

11. As the sponsor is now deceased, the applicant cannot meet the requirement that she is his carer, specifically as the sponsor would no longer would be able to be issued with a certificate that states he the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life as specified in r.1.15AA(1)(b)(iv).

12. The applicant raised the issue of being a carer at the time he died.  At the time of his death, the sponsor was living in a residential care facility.  This decision was made by the Public Advocate under orders made by the State Administrative Tribunal.  The Public Advocate had lawful authority to make this decision about where the sponsor was to live.  Had the sponsor lived, it is unlikely the applicant would have met the requirement in 1.15AA(1)(e)(ii).   

13. The applicant also stated she considered her sponsor required care after his death, in ensuring his headstone was arranged and that his property is administered correctly.  This is not the type of care contemplated for the purpose of this visa, as it is or direct assistance attending to practical aspects of daily life (r.1.15AA(1)(b)(iv)).   

14. 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

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

    Kate Millar
    Senior 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.