RIMA (Migration)

[2019] AATA 3824

RIMA (Migration) [2019] AATA 3824 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elhame Rima

CASE NUMBER:  1827633

HOME AFFAIRS REFERENCE(S):           CLF2017/46574

MEMBER:Moira Brophy

DATE:9 August 2019

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 09 August 2019 at 11:46am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate – evidence of medical assessment provided– delegate to assess the remaining criteria – decision under review remitted

LEGISLATION

Migration Act 1958, s 65,

Migration Regulations 1994, r 1.15, 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 13 September 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 30 June 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 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 visa on the basis that cl.836.221 was not met 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 applicant seeks a review of that decision.

5. The applicant has now provided evidence the necessary medical assessment has been undertaken. 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

7. 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.

8. Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or 'resident'). The term 'carer' is defined in r.1.15AA of the Regulations.

   Whether the applicant is a carer

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the applicant provided with her application evidence of having made arrangements to obtain the Carer Certificate for her son but she failed to provide such a certificate. As a result, the delegate was not satisfied that the relevant impairment rating was assigned to the resident, the applicant's son.

10. On 23 July 2019 the Tribunal received a Carer certificate from BUPA dated 17 July 2019. That certificate specifies that the resident 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 35 has been assigned.

11. The Tribunal is satisfied that the 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.

12. 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.

13. 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

14. 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

15. 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.

    Moira Brophy
    Member