Vega Gil (Migration)

[2020] AATA 5333

Vega Gil (Migration) [2020] AATA 5333 (12 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Esther Vega Gil

CASE NUMBER:  1824359

HOME AFFAIRS REFERENCE(S):          CLF2017/23637

MEMBER:Kira Raif

DATE:12 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2020 at 2:10pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of the Australian relative – caring for daughter – Carer Visa Assessment Certificate – absence of a diagnosed impairment rating – decision under review affirmed        

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 6 August 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 is a national of Peru, born in May 1960. She applied for the visa on 21 March 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 an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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 Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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.

6. 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. 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 which contains the following information.

8. The applicant claimed to be a carer for her daughter Lesley Fiorella Vargas Vega. The applicant provided with the application the Carer Visa Assessment Certificate in relation to Ms Vega, which had the impairment rating of 10 and stated that the sponsor did not have a need for direct assistance in attending to the practical aspects of daily life that would last for at least two years. The delegate invited the applicant’s comments on that issue and in March 2018 the applicant provided a new Certificate dated 25 January 2018 which stated that the sponsor did not have a medical condition causing physical, intellectual or sensory impairment of their ability to attend to daily aspects of daily life. In her post-hearing submission the review applicant explained that this assessment was done for the purpose of a different visa and the absence of an impairment rating should not be used adversely to her. The Tribunal acknowledges that evidence.

9. The review applicant provided to the Tribunal medical certificate which refers to the sponsor’s condition and states that the sponsor requires family support. In oral evidence, the applicant also told the Tribunal that the sponsor needs her support on a daily basis. The sponsor told the Tribunal that her condition is life-threatening and she has no other support in Australia. The sponsor told the Tribunal she needs her mother’s physical and emotional support. The Tribunal accepts that evidence, however, it cannot displace the Carer Visa Assessment Certificate, which is required by the legislation.

10. The Tribunal offered the visa applicant an opportunity to obtain a new Carer Visa Assessment Certificate. On 12 October 2020 the review applicant informed the Tribunal that she did not wish to do so, acknowledging that the application may not be successful.

11. On the evidence before it, the Tribunal is not satisfied there is a Certificate that meets the requirements of paragraph 1.15AA(2) of the Regulations. As such, the visa applicant does not meet r. 1.15AA(1)(b) and the definition of a ‘carer’ in r. 1.15AA. The Tribunal is not satisfied the visa applicant meets cl. 836.221.

12. The visa applicant stated on the application form that several of her relatives resided in Peru. The Tribunal finds that the applicant’s parents and siblings are her ‘near relatives’ and the applicant does not meet the requirements for the grant of the Remaining Relative visa. The applicant was born in 1960 and is not old enough to be granted an Aged pension. She does not meet the requirements for the grant of the Aged Dependent Relative visa.

    Conclusion

13. 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

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

    Kira Raif
    Senior Member