1833418 (Migration)

[2022] AATA 1912

1833418 (Migration) [2022] AATA 1912 (20 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833418

MEMBER:Justine Clarke

DATE:20 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 20 May 2022 at 2:40pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor had withdrawn his sponsorship – at the time of this decision, the sponsorship is no longer in force – family violence by the sponsor –compassionate circumstances – Ministerial intervention requested – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 351, 359AA

Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 836.212,836.213, 836.227, 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 on 6 November 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 5 July 2017, the applicants applied for the visa. Both applicants are nationals of the Philippines. At the time of application, the first-named applicant was [age] years of age and, at the time of this decision, she is [age] years of age. At the time of application, the second-named applicant was [age] years of age and, at the time of this decision, he is [age] years of age. It is claimed that the second-named applicant is the son of the first-named applicant.

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 (Cth) (the Regulations). In this case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa.

4. 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 and the secondary criteria include cl 836.321.

5. Clause 836.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 836.212’.

6. Clause 836.212 is a time of application criterion which provides: ‘[t]he applicant claims to be a carer of an Australian relative’.

7. The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision. ‘Relative’ is defined in reg 1.03 of the Regulations. In this case, the Australian relative is [Mr A].

8. Clause 836.321 is a time of decision criterion which provides: ‘[t]he applicant continues 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’.

9. The applicants provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the visa to the first-named applicant on the basis that cl 836.221 was not met. This was because the delegate found that both reg 1.15AA(1)(e)(i) and (ii), within the definition of ‘carer,’ were not met.

10. With respect to reg 1.15AA(1)(e)(i), the delegate explained:

    Overall, while I find that it would be unreasonable for the resident’s five adult relatives who have provided statutory declarations to provide the care required on an individual basis, I find that three of the sponsor’s adult children, living within close proximity to the sponsor have not provided satisfactory evidence regarding their inability to provide any level of assistance with the care of [Mr A]. I find that the remaining two adults, the resident’s de facto spouse and his step daughter have provided evidence that is out of date regarding their inability to provide any level of assistance. On the basis of both the absence of any supporting evidence, as well as the age of the evidence that has been provided, I am not satisfied that the care [Mr A] requires could not be provided to him on a collective basis by these relatives.

    Therefore, I do not find that it has been demonstrated that it would be unreasonable for [Mr A]’s adult relatives in Australia to provide the care he requires.    

11. With respect to reg 1.15AA(1)(e)(ii), the delegate explained:

    No evidence of the resident or his family meaningfully exploring all possible services available regarding in-home care from community and welfare service providers or private nursing agencies has been provided.

    Having assessed all of the information available to me, I am not satisfied that the availability of suitable aged care facilities or in-home assistance for the resident from community/welfare organisations or professional nursing service providers has been fully investigated.

    In conclusion, I do not find that it has been demonstrated that the care [Mr A] requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

12. On 14 November 2018, the applicants applied to the Tribunal for review of the refusal decision. By the time of the hearing and thereafter, the applicants have been unrepresented.

13. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. Rather, on 22 February 2022, the applicants appeared by video before the Tribunal to give evidence and present arguments. The Tribunal heard from the first-named applicant but did not consider it necessary to hear from the second-named applicant. The Tribunal also received oral evidence from [Ms B], the sister of the first-named applicant. Mrs [C], the mother of the first-named applicant and [Ms B], also attended the hearing, but she did not give detailed oral evidence. All these persons were together, observable by the camera, in the one room for the entirety of the video hearing.

14. At the conclusion of the hearing, the Tribunal granted the applicants until 15 March 2022 in which to file any further information in support of their request for Ministerial intervention. However, on 23 February 2022—the day after the hearing, at the direction of the presiding Member, an officer of the Tribunal contacted the first-named applicant to inform her that the Member considered that the information given at the hearing was sufficient and that the applicants did not have to provide any further information. The officer informed the first-named applicant that if she was agreeable, the Member could make the decision. The officer also informed the first-named applicant that while the Tribunal did not require further information or evidence, that the Minister and/or Department may. The first-named applicant acknowledged this and agreed to the Member proceeding to make a decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. As has been explained, when the matter was before the delegate, the key issue for determination was whether cl 836.221 was met. That is, whether, at the time of the delegate’s decision, the first-named applicant was a carer of the Australian relative mentioned in clause 836.211.

17. However, early in the hearing for this review, the Tribunal advised the applicants that, in view of the adverse information before it, it was appropriate to change the issue for determination in the review to cl 836.227—even though the visas were not refused on this basis.

18. Clause 836.227 is a time of decision criterion which provides: ‘[t]he sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force’.

    The s 359AA information

19. The Tribunal’s file contains two ‘to whom it may concern’ letters sent to the Tribunal by Mr [A]. One letter is dated 21 October 2020 and the other is dated 16 July 2021.

20. In the first letter, [Mr A] stated that he had decided to cancel his sponsorship of the first-named applicant’s application for the visa. He stated that she had ‘failed’ in her carer’s obligations towards him for ‘the whole length of time she has been in Australia’ and that he no longer required her care, explaining that, since the lodgement of the application for the visa, his health had improved. He attached a copy of a signed letter from his general practitioner, dated 18 October 2020, which relevantly stated that ‘[Mr A] is in physically and mentally stable condition and can live independently. Hence he does not need any long term carer for his needs’.

21. In the second letter, [Mr A] stated that, as at that date, he wished to cancel ‘all sponsorship paper works’ concerning the first-named applicant. He also provided an update as to his health and details of his care team.

22. At the hearing, the Tribunal put the adverse information to the applicants for comment or response, pursuant to the process outlined in s 359AA of the Act.

23. In these reasons, the Tribunal acknowledges that it gave details of the contents of the first letter but gave the wrong date. The Tribunal said that this letter was dated 16 July 2021 (which is, of course, the date of the second letter). The Tribunal also failed to give details about the second letter. Notwithstanding, these errors, the Tribunal considers that it has complied with its obligations under s 359AA because it put the gist of the adverse information to the applicants for comments or response; the gist of the information being that the sponsor had withdrawn his sponsorship.

24. The first-named applicant responded to the Tribunal’s oral invitation to comment on or respond to the information and gave oral evidence about the series of events that she claims led to [Mr A] withdrawing his sponsorship. These claims are detailed later in these reasons, in the section titled ‘consideration of request for referral to the Minister for intervention’.

    Are the sponsorship requirements met?

25. Clause 836.213 relevantly requires that, at the time of application, the applicant is sponsored by the Australian relative. And, as has been explained, cl 836.227 is a time of decision criterion which relevantly provides that the sponsorship mentioned in cl 836.213, which has been approved by the Minister, is still in force.

26. The Tribunal is satisfied from the evidence before it that, at the time of application, the first-named applicant was sponsored as required by the legislation and satisfied cl 836.213. However, the Tribunal finds that, at the time of this decision, the sponsorship is no longer in force. The two letters sent by [Mr A] clearly evidence that he has withdrawn his sponsorship of the visas.

27. Therefore, at the time of this decision, the applicant is not sponsored as required and does not satisfy cl 836.227. For this reason, the applicant does not meet the criteria for a Subclass 836 visa.

28. The Tribunal finds that, because the applicant does not meet cl 836.227, the secondary visa applicant 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. Accordingly, at the time of this decision, the secondary visa applicant does not meet cl 836.321.

29. In addition, the Tribunal notes that no evidence has been provided that the secondary visa applicant meets the primary criteria for the grant of a Subclass 836 visa and, accordingly, finds that the secondary visa applicant does not meet the primary criteria for a Subclass 836 visa.

30. The Tribunal is required to assess the applicants against all the subclasses in the Class BU class of visa. Accordingly, the Tribunal must also make findings as to whether the applicants satisfy the criteria for an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa.

    Aged Dependent Relative (Subclass 838) visa

31. The evidence before the Tribunal is that the applicant was born on a specific date in [year]. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purpose of cl 838.212 of Schedule 2 to the Regulations.

32. The Tribunal finds that, because the applicant does not meet cl 838.212, the secondary visa applicant cannot meet the criteria for a Subclass 838 visa as a member of the family unit of a person who has satisfied the primary criteria. Accordingly, at the time of this decision, the secondary visa applicant does not meet cl 838.321.

33. In addition, the Tribunal notes that the secondary visa was born on a specific date in [year]. The Tribunal finds that the secondary visa applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa because he is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the secondary visa applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purpose of cl 838.212 of Schedule 2 to the Regulations.

    Remaining Relative (Subclass 835) visa

34. The Tribunal notes that for this subclass of visa, at the time of decision, the sponsorship must be approved by the Minister and be in force, although the sponsor need not be the same sponsor as at the time of application: cl 835.227.

35. The Tribunal finds that, at the time of this decision, the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa because the sponsorship of Mr [A] is not in force and no alternate sponsorship has been provided. As such, the applicant is unable to meet cl 835.227.

36. The Tribunal finds that, because the applicant does not meet cl 835.227, the secondary visa applicant cannot meet the criteria for a Subclass 835 visa as a member of the family unit of a person who has satisfied the primary criteria. Accordingly, at the time of this decision, the secondary visa applicant does not meet cl 835.321.

37. In addition, the Tribunal notes that there is no evidence that the secondary visa applicant meets the primary criteria for the grant of Subclass 835 visa.

38. Finally, the Tribunal notes the evidence that both applicants have family in another country, so it would not be possible for them to meet the requirements for a Subclass 835 visa.

    Consideration of request for referral to the Minister for intervention

39. At the hearing, the applicants requested the Tribunal to refer the matter to the Minister for his consideration.

40. 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 the Tribunal had the power to make that other decision or not.

41. 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 titled 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 (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

42. Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.

43. The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.

44. The first-named applicant gave oral evidence that, at the time of applying for the visa, it was her intention to care for [Mr A] because he is her stepfather. She told the Tribunal that, perhaps a month ‘after doing the papers’, [Mr A] ‘switched’. She said that his intention changed, and he no longer treated her as his stepdaughter but rather he ‘insisted’ that she become his ‘girlfriend or wife’ and that he would give her a hard time, including not providing documents needed for the visa application, if she did not comply with what he wanted. She said that he threatened her and said that if she did not do what he wanted, including going with him to [a place], he would not help her with her papers and he would send her and the secondary visa applicant back to The Philippines. The Tribunal observed that, while giving this oral evidence, the applicant was very upset and crying. The Tribunal also observed her mother, [Ms C], crying.

45. The applicant said that [Mr A] continued to threaten her, including by way of text messages, and that he also contacted her children in The Philippines to tell them that she had been very stupid and that he was going to send her and the secondary visa applicant back there.

46. She said that [Mr A] then started to tell her mother and her that if she (the applicant) was not going to do what he wanted, that they ([Ms C], [Ms B] and the applicants) would need to leave the house [or] else pay rent. She said that, because of the threats, the family decided to pay rent to [Mr A]. She also said that he continued to tell them that if the applicant really wanted to stay in Australia that he would help her but that she must become his wife, not his stepdaughter. When asked, she said that her mother paid rent from 8 May 2018 to 8 July 2021.

47. At this point in the hearing, [Ms B] asked if she could speak. She said that everything changed for the family when they filed the application for the visas. She also told the Tribunal that, at a date that she could not recall but it may have been in 2019, the family learned that the property [was] public housing, not [Mr A]’s private housing. She said that [Mr A] had asked their mother to pay $570 per fortnight and that they found out that the rent payment for public housing was only $320-350 per fortnight. She said that she told [Mr A] that they had found out that the property was public housing and that [Mr A] threatened them that if the applicant would not go with him to be his wife, that the family would need to leave the property. She said that, in 2021, she wrote to the Department of Housing to inform them of the sub-letting and to seek their help. She said that she had provided supporting information in support of the claim that both [Mr A] and his daughter were threatening the family. She said that the family were successful with their request for assistance and that they now live elsewhere.

48. The Tribunal asked [Ms B] whether anyone had ever informed the Department of Home Affairs about the developments. She said that she was not sure. She said that she had not been focusing on her sister’s application for the visa because her priority had been to assist their mother, and she noted [Ms C]’s age. At this point at the hearing, [Ms B] broke down and displayed distressed emotion. 

49. The applicant told the Tribunal that they had evidence of the threats, in the form of text messages ‘from the start up until now’. She also told the Tribunal that [Mr A] had been very angry at her for ‘not following him’ and that he had told her that he was going to write to the Tribunal. She said that, after he had written to the Tribunal, he had sent her a copy of the letter too. When the Tribunal asked the applicant whether she had ever discussed the family violence with her general practitioner, she told the Tribunal that she had mentioned it on one occasion because at one point—she thought that it had been February (year not mentioned)—she had experienced severe depression and anxiety and had ‘been in bed for five months’. The applicant cried again at this point. The applicant told the Tribunal that it was very difficult for her to talk about her experiences as she had experienced emotional, mental and verbal abuse from [Mr A]. She said that she thought that, even up until 2022, [Mr A] had continued to contact her family in The Philippines and tell them that he would contact the police to tell them to take the applicant away.   

1. Both the applicant and [Ms B] impressed the Tribunal as very credible persons, and the Tribunal accepts their oral evidence.

2. The Tribunal also notes that [Ms C] and [Ms B] gave oral evidence that they were Australian citizens and the Tribunal also accepts this oral evidence.

3. In this case, the Tribunal considers that the facts as claimed by the applicant seem to best be described as:

   ·‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’; and/or

   ·‘circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case’.

4. In order to be granted a Subclass 836 visa, the various requirements must be met and there is no exception for family violence by the sponsor. The Tribunal considers that it is fair to say that the provisions do not anticipate that family violence may arise. The Tribunal considers that it is arguable that, in this case, the application of the relevant legislation leads to unfair or unreasonable results.

5. The Tribunal also considers that it is arguable that, in this case, there are ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen—[Ms C] and/or [Ms B]—or an Australian family unit’.

6. Having considered all the evidence before it and mindful that the applicants’ claim that documentary evidence in support of their claims could be provided to the Department if required, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

   DECISION

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

   Justine Clarke
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   1.15AA Carer

   1.15AA (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:

   (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; and

   (iv)because of the medical 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; and

   (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; 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

   (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

   (e)the assistance cannot reasonably be:

   (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)obtained from welfare, hospital, nursing or community services in Australia; and

   (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

   (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 applicant satisfies a criterion that the applicant is a carer.