Roraveli (Migration)

[2019] AATA 1461

Roraveli (Migration) [2019] AATA 1461 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Liku Melania Roraveli

CASE NUMBER:  1804817

HOME AFFAIRS REFERENCE(S):           CLF2017/15625

MEMBER:Linda Holub

DATE:8 April 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:

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 08 April 2019 at 12:53pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Carer Visa Assessment Certificate – document received by the Tribunal – residency status – impairment rating – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; 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 1 February 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 7 February 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 because the applicant had not provided a Carer Visa Assessment Certificate (CVAC) in respect of the Australian ‘resident’ and person with the medical condition.

4. On 18 July 2018 the Tribunal was provided with a copy of a completed CVAC and therefore, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether a Carer Visa Assessment Certificate has been validly issued showing 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 all the practical aspects of daily life.

Certification – r.1.15AA(1)(b)

1. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

2. For a certificate to meet r.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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.

3. The Department’s Decision Record indicates that the applicant provided evidence on 14 February 2017 of having contacted BUPA Medical Visa Services (BUPA) to enquire about a Carer Visa Assessment Certificate (CVAC) in respect of the sponsor. On 7 December 2017 the applicant was requested (via an email sent to the email address she nominated on Form 47OF) to provide an original CVAC document to the Department by post within 28 days.  On 28 December 2017 the sponsor advised the Department by email of his communication with BUPA and Centrelink advising of progress. The Department’s Decision Record indicates that there were no attachments to the email and no evidence of any further contact with BUPA regarding the Carer Visa Assessment Certificate. The sponsor was advised by the Department that it is a requirement of the Carer visa that the certificate be provided within three months of lodgement. The applicant was further requested to provide evidence before the due date that the BUPA appointment was being sought or was currently underway.  At the time of the delegate’s decision, no correspondence or further information had been provided by the applicant.

4. On that decision, the Department refused the application. 

5. On 18 July 2018 the Tribunal received a copy of the sponsor’s Carer Visa Assessment Certificate which was dated by the examining doctor 11 June 2018.

6. The Tribunal has considered the Certificate and is satisfied it is issued in relation to an assessment carried out by a specified health provider, and meets the requirements of r.1.15AA(2).

7. Further, the Tribunal is satisfied that the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.

8. 15AA(1)(b) are met by the first named visa applicant.

Residency status of person with medical condition – r.1.15AA(1)(ba)

1. 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.

2. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

Impairment rating – r.1.15AA(1)(c)

1. 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.

2. In the present case, the impairment rating specified in the certificate is 35. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

3. 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

1. 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:

• cl.836.221 of Schedule 2 to the Regulations;

Linda Holub

Member