1416384 (Migration)

[2015] AATA 3794

1416384 (Migration) [2015] AATA 3794 (4 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pacita Quimpo

CASE NUMBER:  1416384

DIBP REFERENCE(S):  CLF2014/81297

MEMBER:Catherine Carney-Orsborn

DATE:4 December 2015

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 04 December 2015 at 10:44am

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 Immigration on 16 September 2014 to refuse to grant the 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 1 June 2014. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212.

3. The delegate refused to grant the visa on the basis that cl.838.212 was not met because she is not a relative of the sponsor.

4. The applicant appeared before the Tribunal on 1 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino (Tagalog) and English languages.

5. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

6. On 1 December 2015 the representative provided five statutory declarations from relatives of the sponsor stating that the applicant had cared for them as children and they would like her to stay.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the aged dependent relative of Susana Lu-Dizon (the sponsor) who the applicant claims is their relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

9. In this case Susana Lu-Dizon is an Australian citizen.

   Is the applicant an aged dependent relative of an Australian relative?

10. To be granted a Subclass 838 visa the applicant must be a ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

11. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the  Social Security Act 1991.

12. The applicant provided identity documents including a birth certificate.  Her parents are listed on her birth certificate.  She states that her mother died.  Her father abandoned her and she made her way to Manila.  Here she was taken in by Maria Lu who is the sponsor’s mother. 

13. At hearing she stated that she had heard her father died from a distant relative.  The sponsor gave evidence that a cousin was the only relative the applicant ever saw.

14. The sponsor was born in 1959.  The applicant claims she joined the household of the sponsor when the sponsor was one year old.  The sponsor states she was told by her mother she was a few months.  This would make the applicant sixteen when she joined the household.  The applicant states she was twelve.  Either way the Tribunal accepts that she joined the household when she was young. 

15. All the evidence states that the applicant provided domestic services and cared for all the children of the family.  She cared for the applicant's children and from the statutory declarations also cared for her siblings’ children.

16. The evidence is that the applicant was never paid a wage.  She was never educated.  The sponsor’s evidence is that she is now considered to be like a grandmother.

17. The Tribunal is satisfied that the applicant joined the household.  She was provided with housing and food.  She provided care to all the children of the family.  The sponsor asserts she was always a part of the family, however, there is nothing to indicate that she was ever adopted.  Her evidence is that while the children of the family were educated she was not.

18. The Tribunal accepts that the applicant has a close relationship to all the children she has cared for.  She is now elderly and the family are all in Australia.  They do not want her to return to the Philippines as she will be by herself. In their statements they have professed their affection for her and refer to her as their grandmother.

19. The Tribunal has formed the view that the applicant was taken into the family and given shelter and food sometime around 1955 and in return she assisted with the care of the children of the family and did domestic chores.  The Tribunal is satisfied that there is now, after nearly sixty years, a close bond; however, she is not a relative as defined in regulation 1.03.

20. The sponsor and representative submitted that they want her to stay in Australia on compassionate grounds as she is now elderly and has devoted her life to caring for and raising the children of the family.  If she returned to the Philippines she would have no-one there to assist her in her old age.

21. The Tribunal is sympathetic, however, there is nothing in the applicable legislation that indicates the Tribunal can disregard that need for an applicant to be a relative.

22. The representative indicated that the applicant would pursue a Ministerial intervention.  The Tribunal is satisfied that this is an option available to the applicant.

23. In this case, the applicant is not the ‘relative’ of an Australian relative for the purposes of cl.838.212.

24. For the reasons set out above, the Tribunal is not satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application for the purposes of cl.838.212.

25. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 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

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

    Catherine Carney-Orsborn
    Member