1731505 (Migration)

[2020] AATA 5150

1731505 (Migration) [2020] AATA 5150 (22 September 2020)

AppID: 1731505

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1731505

MEMBER:Justine Clarke

DATE:22 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 22 September 2020 at 12:33pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – cousin of the sponsor – members of the family unit – applicant’s contribution to the sponsor’s family – strong compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 836.111, 836.212, 836.321

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection on 30 November 2017 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. On 13 November 2017, the applicants applied for the visas. At the time of this decision, the first-named applicant is [an age]-year-old national of Turkey. It is claimed that the second and third-named applicants are his dependents, namely his [age]-year-old wife and [age]-year-old son. Hereafter, the first-named applicant is referred to as the applicant and the second and third-named applicants are referred to as the secondary visa applicants.

3. 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). The applicants seek to satisfy the criteria for the grant of a Subclass 836 (Carer) visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. The primary criteria to be met include cl.836.212 and the secondary criteria include cl.836.321.

4. The applicants provided the Tribunal with a copy of the primary decision. The delegate found that the applicant was a cousin of the sponsor, [named], and, accordingly, that he did not meet cl.836.212—which requires that, at the time of application, the applicant claims to be the carer of an Australian relative—because a cousin is not one of the familial relationships recognised in the definition of ‘relative’ in r.1.03. The delegate also refused to grant visas to the secondary visa applicants on the basis that they each did not satisfy cl.836.321, which requires them each to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

5. On 13 December 2017, the applicant applied to the Tribunal for review of the primary decision. The eM1 form listed the applicant as the person applying for review. The review application was accompanied by the primary decision record, which also includes the refusals for the secondary visa applicants. According to a file note on the Tribunal’s file, on 19 December 2017, prior to the end of the prescribed period, an officer of the Tribunal contacted the representative by telephone to query whether it was intended that the secondary visa applicants be included in the application for review. The representative stated that this was the intention. In the circumstances, the Tribunal finds that the secondary visa applicants have also sought merits review in this Tribunal.

6. The applicants have been represented in relation to the review by their registered migration agent.

7. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 27 August 2020, the applicant appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor by video. The applicant and the sponsor gave oral evidence from the same room. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The interpreter attended by video from a different location. The representative also attended the hearing by video, from another different location. The second-named applicant was available to provide oral evidence but, having heard oral evidence from the applicant and the sponsor, the Tribunal did not consider it necessary to hear from the second-named applicant.

8. At the conclusion of the hearing, the representative informed the Tribunal that she had sent some updated medical information concerning the sponsor to the Tribunal and she requested that the Tribunal refrain from making a decision until that information is received. The Tribunal agreed to the request and notes that further medical documents were received by the Tribunal on 31 August 2020 and 4 September 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue for determination is whether, at the time of application on 13 November 2017, the applicant met cl.836.212 and whether, at the time of this decision, the secondary visa applicants meet cl.836.321.

11. As has been explained, cl.836.212 of Schedule 2 to the Regulations requires that the applicant claims to be the carer of an Australian relative.

12. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

13. The visa application was made on the basis that the applicant is the carer of the sponsor. A number of documents submitted to the Department stated that the applicant and the sponsor are cousins. At the hearing, both the applicant and the sponsor told the Tribunal that they are cousins.

14. A cousin is not one of the familial relationships recognised in the definition of ‘relative’ in r.1.03.

15. From all the evidence before it, the Tribunal finds that, at the time of application, while the applicant claimed to be the carer of an Australian relative, he does not satisfy the requirements of cl.836.212. Accordingly, the applicant does not meet the criteria for a Subclass 836 visa.

16. In relation to the secondary visa applicants, the Tribunal finds that, as the applicant—who was the primary applicant for the visa—does not meet cl.836.212 and accordingly, does not meet the criteria for a Subclass 836 visa, the secondary visa applicants each cannot meet the criteria for a Subclass 836 visa as a member of the family unit of a person who has satisfied the primary criteria. Further, no claims have been made, and no evidence provided, that either of the secondary visa applicants meet the primary criteria for a Subclass 836 visa.

17. For the reasons above, the applicants each do not meet the criteria for a Subclass 836 visa.

18. In respect of the other visa subclasses—namely an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa—there is no material which would permit a finding that any of the applicants meet prescribed criteria for the visa sought. This is because the Tribunal finds that:

    ·each of the applicants are not entitled to the grant of the Aged Dependent Relative (Subclass 838) visa as there is no evidence that any of the applicants are dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore, cl.838.212 is not met; and

    ·the applicants are not entitled to the grant of a Remaining Relative (Subclass 835) visa because the Australian relative is not a relative of the type prescribed by r.1.15(1)(a). Rather, as has been stated already, the applicant and the sponsor are cousins. As such, each of the applicants are not a ‘remaining relative’ and therefore each is unable to meet cl.835.212.

    OTHER ISSUES

    Consideration of request for referral to the Minister for intervention

19. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

20. The written submissions of 22 December 2017 explained that the sponsor (an Australian citizen) has multiple sclerosis (MS). It was submitted that the applicant is the only relative who can provide care to the sponsor because the sponsor’s [Relative A] has cancer. Further, it was submitted that ‘culturally, emotionally and ethically’ the relationship between the applicant and the sponsor is at the same level as siblings. The submissions continued:

    [The sponsor] had lived with [the applicant] in Turkey where he was the sole carer for her for approximately 3 years before entering Australia. He has a strong understanding of her medical conditions as does his wife who is also supporting [the sponsor]. They reside in the same home in [suburb] and [the applicant’s wife] helps out with home chores including taking care of the sponsor’s baby. [The applicant’s wife] was studying her [tertiary course] in Australia and put it on hold at this stage sacrificing her efforts for the sake of her family. The family ties are very strong.

21. The written submissions filed on 26 August 2020 formally requested that the Tribunal refer the matter to the Minister for his consideration. It was submitted that the sponsor was of the view that ‘there are strong compassionate circumstances such that failure to recognise them would result in irreparable harm and hardship to herself, being an Australian citizen’. These are fulsome submissions, of some 56 pages (including attachments).

22. The applicants submitted a number of documents corroborating these various claims, including updated information that was provided after the hearing. Further and importantly, the applicant and the sponsor gave very credible oral evidence about these matters at the hearing.

23. The applicant told the Tribunal that he wanted to assist the sponsor so that he could help her to live her life in an improved way, that is, to have a better quality of life. He explained that the sponsor has MS and that this condition causes her great difficulty in carrying out her daily lifestyle and living needs. He said that when he had found out that the sponsor had MS that he had wanted to do whatever he could do to support her. He explained that an experience earlier in his life, where [another relative] with MS had not been cared for by her children and had ended up ‘bedridden’, had affected him deeply. He said that he had become familiar with the illness at the time.

24. He said that he and his wife had been providing care and support to the sponsor for 9 or 10 years—both when they had lived in Turkey and in Australia. He acknowledged that during this time, the sponsor had done some travel between the two countries.

25. He said that, like many others with the condition, the sponsor experiences muscle and bone aches, migraines and distorted walking. He said that he observed these experiences every week. He gave oral evidence that the sponsor also had what he referred to as a ‘somewhat concerned approach’ or a ‘trust problem’. He said that when the sponsor was feeling particularly concerned that she wanted to see people that she trusted, and he said that he was trying to fill the sponsor’s trust deficit as best he could. He said that he sought to do this by having a positive outlook, good morals and by taking care of his family.

26. He gave oral evidence that he had read countless research articles on MS and the different programmes of care that can assist those experiencing the condition.

27. The Tribunal notes that he claims to provide direct assistance in attending to various practical aspects of the sponsor’s daily life. He gave some examples, saying that he may prepare breakfast, vacuum or spend time with the sponsor’s young son (including tending to his needs and dressing him). He told the Tribunal that after the sponsor gave birth to her son (in [year]), her need for support from the applicant and his wife increased further. He explained that the sponsor can be quite emotional with her son. When asked whether the father of the sponsor’s child plays any role in providing support or care to the child, he told the Tribunal that the father plays no role and that the sponsor is a single mother. He said that he was the male role model for the child. He recounted a story from the previous summer where the family had been at the beach. He explained that the sponsor’s son is quite afraid of the sea but that he had taken steps that day which meant that ‘they overcame his fear of the sea together’.

28. When asked about other members of the sponsor’s family and whether any of these people could provide care and assistance to the sponsor, the applicant told the Tribunal that the sponsor’s [Relative A] cannot care for the sponsor as she has cancer herself. He said that the sponsor has two siblings but that neither can care for the sponsor as the younger sibling is caring for the [Relative A] and the older sibling is working.

29. He also explained the very strong tie between cousins in Turkish culture, which he said brings them closer. He vowed that, until his very last day in Australia, he would take care of the sponsor.

30. The sponsor also gave oral evidence about the strong cultural ties between cousins. She explained that cousins are valued as siblings. She said that she did not understand why the visas had been refused.

31. She told the Tribunal that she was not working, that she was a single mother and that she has MS which meant that she was ‘slowly getting disabled’. She told the Tribunal that one of the symptoms of MS is difficulty walking. She said that, recently, she had tripped, fallen and fractured her right knee which had led to her being ‘bedridden’ for a period. She also told the Tribunal that she finds it hard to trust people, that she experiences anxiety and that seeing a psychiatrist had ended badly for her such that she was scared to go to a new one. She stated that no one other than the applicant could provide care to her and that her life would not be as good as it could be if the applicant and his family were unable to care for her. She stated that she believed that her son could be in harm’s way. She reiterated that she wanted her cousin to care for her. The Tribunal thanks the sponsor for sharing this deeply personal and sensitive evidence with the Tribunal.

32. Both the applicant and the sponsor impressed the Tribunal as very credible people and the Tribunal accepts their oral evidence. 

33. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the Direction of the President of the Tribunal entitled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417 and s501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

34. The Tribunal considers that the facts of this case suggest that there are ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen’, which is one of the examples of unique or exceptional circumstances listed in the Minister’s Guidelines.

35. Accordingly, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

36. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Justine Clarke
    Member