WANG (Migration)

WANG (Migration) [2018] AATA 4633 (13 August 2018)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zuowen Wang
CASE NUMBER:  1723613
DIBP REFERENCE(S):  CLF2016/84714
MEMBER:Helena Claringbold
DATE:13 August 2018
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 13 August 2018 at 11:35am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – Certificate requirements not met – whether the application for the Subclass 836 (Carer) visa is also a valid application for a Subclass 835 (Remaining Relative) – correct visa application fee is not paid for Remaining Relative (Subclass 835) (Residence) visa – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 23, 45, 46
Migration Regulations 1994, r.1.15AA, Schedule 1, Schedule 2, cl. 836.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 31 October 2016, Mr Zuowen Wang, the applicant, applied for an Other Family (Residence) (Class BU) visa. The application was made on the basis of him being the carer of his mother, Ms Yaqin Yang, the sponsor.
On 11 September 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant satisfied cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act).
At the time of application, 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. In the applicant’s migration agent’s submission to the Department, he claimed that the application was also a valid application for a Remaining Relative (Subclass 835) (Residence) visa.
On 31 July 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considered the information in the Department of Immigration and Border Protection’s (the Department’s) case file, the Tribunal case file and the evidence provided at the Tribunal hearing.
THE ISSUE
The issue in the present case is whether the relative with the medical condition has been assigned an impairment rating of at least 30 detailed in a Carer Visa Assessment Certificate (CVAC) and can satisfy the requirements of Regulation r.1.15AA. In addition, whether the application for the Subclass 836 (Carer) visa is also a valid application for a Subclass 835 (Remaining Relative).
BACKGROUND ON THE EVIDENCE
The applicant was born in 1985 in Harbin, China. His father is deceased. His mother, who is the sponsor and the resident needing the care, lives in Australia.
CLAIMS AND FINDINGS
Carer is defined in Regulation 1.15AA.
1.15AA (1) defines that: 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;
(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 applicantsatisfies a criterion that the applicant is a carer.
Impairment rating
Under regulation r.1.15AA(1)(b)(iii), the impairment must be assigned a rating. The Bupa Medical Visa Services (BMVS) medical adviser will provide a rating of the impairment of the person based on the Impairment Tables within the meaning of subsection s.23(1) of the Social Security Act 1991. The rating is expressed as a number between 0 and 100.
Regulation 1.15AA(1)(c) requires the rating to be equal to or exceed the impairment rating specified in the legislative instrument IMMI 17/126. The rating is currently 30 points, that is, the person with the medical condition must receive an impairment rating from the BMVS medical adviser of at least 30 points.
In November 2016, BMVS issued a Carer Visa Assessment Certificate (CVAC). After the assessment for Ms Yang was assigned a total impairment rating of 20 points. Ms Yang was listed as being diagnosed with major depression. She was recorded as not having 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; and not having a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and not needing direct assistance in attending to the practical aspects of daily life that would continue for at least two years.
On 6 June 2018, the Tribunal wrote to the applicant and sought his advice whether the parties intended to apply for reassessment of the CVAC and to provide the Tribunal of evidence of the request for reassessment.
On 18 June 2018, the applicant’s migration agent advised the Tribunal that the applicant ‘does not intend’ to apply for reassessment of the CVAC.
The applicant told the Tribunal that he wanted to remain on the visa he currently held. The applicant’s migration agent referred the Tribunal to his submission to the Department dated August 2017. In this submission the applicant’s migration agent concedes that Ms Yang does not have a rating equal to, or exceeding the impairment rating of 30 and it follows that the visa applicant cannot meet the definition of carer and cannot satisfy cl.836.221 of Schedule 2 to the Regulations.
The Tribunal is satisfied that the CVAC of 18 November 2016 meets the relevant requirements. The resident has been assessed as having an impairment rating of 20, which is under the required rating of at least 30. Therefore cl.836.221 of Schedule 2 to the Regulations is not met.
Other Considerations
The applicant’s migration agent referred to his submission to the Department dated August 2017. He told the Tribunal that the carer visa application, in his view, is also a valid visa application for a Remaining Relative (Subclass 835) (Residence) visa.
The migration agent argued that ‘While there is a higher base application charge in Item 1123(a)(ii), he submits it is not applicable because item subparagraph (ii) is an alternative to subparagraph (i)’. He goes onto argue that item 1123(2)(a)(ii) is not expressed in a manner such as ‘seeking to satisfy the criteria for the grant of a subclass 835…or subclass 838 visa’.
In a post hearing submission the applicant’s migration agent argued that pursuant to item 1123B(2)(i)(A), a base application fee of $1,595 is payable ‘for an applicant, who appears to the Minister, on the basis of information contained in the application, to be a carer’. He continued: ‘It is critical to construe to [sic] the terms “appears to the Minister” and “to be a carer” used [sic] correctly’. He submits that the provision is not expressed with the term ‘appears to the Minister to be applying for a Subclass 836 Carer visa’ or ‘appears to the Minister that the applicant is seeking to satisfy the requirement for grant of a Subclass Carer visa’.
He continued by stating the following:
‘The ‘term ‘carer’ is defined in r.1.15AA of the Regulations. The definition does not assist the position of the delegate that the visa application charge paid by the visa applicant is limited only to an application for a Subclass 836 Carer visa and that the higher visa charge must be paid for an application for a Subclass 835 Remaining Relative visa to be said as valid. Regulation 1.15AA simply defines when an applicant for a visa is a ‘carer’ of a person. It makes no reference to the relevant visa subclasses. The definition at 1.15AA can be incorporated into any part of the Regulations and to any visa.’
He argues that:
‘given the language used in item 1123B(2) in Schedule 1 to the Regulations, the correct construction would be that the first visa instalment of the visa application charge is at a reduced rate of $1,595, if the applicant appears to the Minister, on the basis of information contained in the application, to be a carer (as defined in r.1.15AA), irrespective of whether it is an application for a Subclass 836 Carer Visa.’
In addition, he stated that:
‘It is irrelevant whether or not ‘remaining relative visa’ is marked in the physical application form or otherwise as there is no requirement in Schedule 1 requiring so. In addition, item 1123B(3)(d) is irrelevant to a Subclass 835 Remaining Relative visa even if satisfied because the provision is enlivened and must be met only if it being [sic] an “application by a person claiming to be a carer”. Item 1123B(3)(d) it is not expressed in the language ‘For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 836 (Carer) [sic] visa, the applicant must….’ This analogy to the alternate language which is not used in item 1123B can be found in other visa class in Schedule 1 to the Regulations such as item 1104B Business Skills (Residence) (Class DF) visa, example paragraphs 1104B(3)(d),(e),(f),(g) and (i).’
1123B (2) Visa application charge provides as follows:
(a) first instalment (payable at the time the application is made):
(i) for an applicant:
(A) who appears to the Minister, on the basis of information contained in the application, to be a carer; or
(B) whose application is combined, or sought to be combined, with an application made by that person:
(ii) for any other applicant
Section 45 of the Act requires a person who wants a visa, to apply for a visa of a particular class.
Section 45A of the Act provides that - visa application charge means the charge payable under section 45A:
Section 45 A, A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.
Section 46 of the Act provides that a valid visa application, is valid — generally according to the following:
(1)  Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a)  it is for a visa of a class specified in the application; and
(b)  it satisfies the criteria and requirements prescribed under this section; and
(ba)  subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c)  any fees payable in respect of it under the regulations have been paid; and
(d)  it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
The applicant’s migration agent claims that the application for the carer visa is also a valid application for a Remaining Relative (Subclass 835) (Residence) visa. The Tribunal notes that the Remaining Relative (Subclass 835) (Residence) visa falls within the same class of visa as the carer visa. However, both subclasses attract different base application fees.
The Tribunal does not accept the migration agent’s argument that, the application for the carer visa is also a valid application for a Remaining Relative visa. It is not satisfied that, the charge stipulated at item 1123B(2)(a)(ii) is an alternate charge for applicants where Remaining Relative or Aged Dependent Relative visas are more appropriate visa types. It is satisfied that item 1123B(2)(a)(ii) relates to the base application charge for the lodgement of a valid Remaining Relative or Aged Dependent Relative visa.
At the time of application, the applicant specified that he was applying for a carer visa. He provided details of Ms Yang’s medical conditions and he claimed to be the carer for Ms Yang. He also provided information to support the carer visa application including a relevant CVAC. At that time he paid $1,595 for the carer visa application.
The Oxford dictionary defines ‘appears’ as ‘come into sight; become visible or noticeable, especially without apparent cause, seem; give the impression of being’. The Macquarie Dictionary definition includes ‘to be obvious; be clear or made clear by evidence’. The Tribunal is satisfied, having regard to the plain dictionary meaning of ‘appears’ and because of the information the applicant provided at the time of application, it appeared and was clear that, the applicant applied for a Subclass 836 (Carer) visa.
The Tribunal is satisfied that a requirement for making a valid visa application is that, at the time of application, the correct visa application fee is paid. At the time of application the applicant paid $1,595 for a carer visa application, whereas at the time of application, the application fee for a Remaining Relative (Subclass 835) (Residence) visa was $3,870. As a result, the applicant did not pay the correct fee for the Remaining Relative visa and the applicant has not made a valid application for that visa. Therefore, the Tribunal did not consider the application for review against the requirement for the Remaining Relative (Subclass 835) visa.
For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Helena Claringbold
Member

[2018] AATA 4633

13 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal