RISTIC (Migration)

[2020] AATA 5067

RISTIC (Migration) [2020] AATA 5067 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Danica RISTIC

CASE NUMBER:  1816395

HOME AFFAIRS REFERENCE(S):          CLF2017/53378

MEMBER:Kira Raif

DATE:23 September 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 23 September 2020 at 2:41pm

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 835.221; 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 16 May 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 19 July 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 another person. The applicant seeks review of the delegate’s decision.

3. 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. The applicant appeared before the Tribunal on 23 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages. 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.

   Whether the applicant is a carer

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be a carer of her mother Stojanka Stefanovic. When making the application, the applicant provided evidence that an appointment was arranged with Bupa Medical Visa Services to obtain the Carer Visa Assessment Certificate (Carer Certificate). The applicant had not presented the certificate to the delegate.

8. In January 2019 the Tribunal wrote to the applicant requesting her to provide evidence of a Carer Certificate. The applicant has not replied to the Tribunal’s request.

9. In oral evidence, the applicant told the Tribunal that she had obtained the Carer certificate and thought she had sent it to either the Department or the Tribunal. The Tribunal noted that there was no evidence of the Certificate being received by either body. The applicant said that she did whatever her agent advised her. (The applicant has not provided any information to the Tribunal of having used a migration agent to assist her. She told the Tribunal she used the services of Mr Toufic Laba-Sarkis.)

10. Following the hearing, the applicant provided to the Tribunal a copy of the BUPA Carer certificate issued in March 2020. 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 second 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. 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

13. 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

14. 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)(b) and (c) for the purpose of cl.836.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member