Federal Court: a time of decision criterion for visa subclass 836 is that a medical certificate must state that the person receiving care has and will continue to have a need for direct assistance for at least 2 years. Does it mean that the certificate must be issued shortly before the time of decision? Could the certificate issued in 2010 "reasonably say anything about the degree of impairment of the sponsor 8 years later"? Does a medical certificate expire?
Summary and discussion
The Appellant applied for a carer visa (subclass 836). Schedule 2 of the Migration Regulations 1994 included the following provisions (emphasis added):
836.22 Criteria to be satisfied at time of decision
836.221
The applicant is a carer of a person referred to in clause 836.212.
A "carer" was defined as follows under r 1.15AA of the Regulations:
Carer
(1) 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:
…
(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; and
…
(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
….
(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.
…
The visa application included a medical certificate from 2010. The Department refused to grant the visa and the Appellant applied to the Tribunal for merits review of that decision.
At the Tribunal, in 2018, the Appellant relied on the the above certificate from 2010. The Tribunal affirmed the refusal and the Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision. The FCCA dismissed that application and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).
The questions to the FCA were as follows:
Question 1: does a medical certificate need to be issued shortly before a decision-maker makes a decision in order to satisfy the time of decision criterion under cl 836.221?
Question 2: if the answer to Question 1 is "no", could the certificate issued in 2010 "reasonably say anything about the degree of impairment of the sponsor 8 years later in 2018"?
Question 3: when does a medical expire, if at all?
The FCA answered as follows...