• Regulation 1.15AA(1)(b) and (c) for the purpose of cl.836.221 of Schedule 2 to the Regulations

MIGRATION - Other Family (Residence) (Class BU) visa - Subclass 836 (Carer) - Federal Court remittal - impairment rating - new carer visa assessment certificate obtained and provided - decision made without hearing necessary - decision under review remitted

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15AA(1)(b), (c), (2), Schedule 2, cl 836.221

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant is a national of the Philippines born in June 1966. She applied for the visa on 18 September 2018. 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. This is because the impairment rating in the CVAC presented by the applicant with the application was 5, which was below the prescribed score.
3. The applicant seeks review of the delegate's decision. In November 2020 the AAT (differently constituted) affirmed the delegate's decision. The first Tribunal noted that the applicant had not made any arrangements to obtain a new CVAC since the first one was issued in 2018 and the Tribunal declined the applicant's request to grant her more time to obtain a new CVAC.
4. The applicant sought judicial review of the Tribunal's decision and in March 2025 the matter was remitted to the Tribunal for reconsideration, with the court finding that it was legally unreasonable to refuse the applicant's request for more time to submit the new CVAC.
5. The applicant was represented in relation to the review. No hearing was held in this case as the Tribunal determined that it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

1. 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 (Cth) (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.
2. 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 reg 1.15AA of the Regulations.

1. When making the application, the applicant claimed to be a carer for her mother, Ms Juanita Dadat.
2. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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.
3. For a certificate to meet reg 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, or issued by a specified health provider in relation to a review of such an opinion.
4. As noted above, the application was refused by the delegate because the applicant had presented a CVAC with the impairment rating of 5, which was below the prescribed rating. In May 2021 the applicant provided to the Department an updated CVAC dated 6 April 2021.
5. According to the Certificate, the sponsor has a medical condition causing impairments of the person's ability to attend to the practical aspects of daily life. It is stated that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the Certificate provided does meet the requirements of reg 1.15AA(2). Further, the Certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.
6. 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. When the application was made, it was accompanied by a CVAC which indicated the impairment rating of 5. The CVAC issued in April 2021 has the impairment rating of 40. That rating exceeds the impairment rating specified by the relevant instrument. The Tribunal is satisfied that the 2021 CVAC meets the requirements of reg 1.15AA(1)(c).
7. The Tribunal is mindful that the delegate had not assessed the remaining requirements of r. 1.15AA, having made a finding that the CVAC that accompanied the application did not contain the prescribed impairment rating. 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.

1. 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.

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:
   • Regulation 1.15AA(1)(b) and (c) for the purpose of cl.836.221 of Schedule 2 to the Regulations

Representative for the Applicant: Checker James McCarthy