1908762 (Migration)

[2022] AATA 5258

1908762 (Migration) [2022] AATA 5258 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Juan Fernando Cachola (MARN: 0201385)

CASE NUMBER:  1908762

MEMBER:Justine Clarke

DATE:20 December 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 December 2022 at 12:42pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – Australian relative requiring care deceased – compelling and compassionate circumstances – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.221, 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 5 April 2019 by a delegate of the Minister for Home Affairs to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 16 April 2018, the applicants applied for the visa. The applicants, both nationals of the Philippines, are married.[1]

   [1] A certified copy of their certificate of marriage from the Philippines is on the Department’s file.

3. At the time the application for the visas was lodged, 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).

4. In this case, the applicants are seeking 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. 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’. Clause 836.212 is a time of application criterion which provides: ‘[t]he applicant claims to be a carer of an Australian relative’.

6. 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].

7. 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’.

8. The applicants provided the Tribunal with a copy of the delegate’s refusal decision of 5 April 2019. The delegate refused to grant the visa to the first-named applicant (the primary 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.

9. The delegate also refused to grant the visa to the second-listed applicant (the secondary applicant) on the basis that he did not satisfy cl 836.321. As the delegate explained:

   As the primary applicant did not satisfy the criteria for the grant of a subclass 836 visa, the secondary applicant is unable to satisfy clause 836.321 in schedule 2 of the Regulations.

   No claims have been made and there is no evidence that the secondary applicant is able to meet the primary criteria for the grant of a Carer (Residence) (BU 836) visa.

10. On 10 April 2019, the applicants applied to the Tribunal for review of the refusal decision. The applicants were represented in relation to the review.

11. On 5 December 2022, the applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B]. The representative did not attend the hearing.

12. At the conclusion of the hearing, the Tribunal granted the applicants until 12 December 2022 to file any further evidence in respect of their request for the matter to be referred to the Minister for intervention.

13. On 11 December 2022, the applicants filed a timeline of events.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Carer (Subclass 836) visa

15. 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.

16. On 7 March 2022, the applicants informed the Tribunal, in writing, that [M A], the Australian relative and sponsor, had passed away. On 30 March 2022, they submitted a copy of the official death certificate. The Tribunal accepts the evidence before it that [Mr A] passed away [in] February 2022.

17. At the hearing for this review, the Tribunal advised the applicants that, in view of this information, they would not be able to satisfy the criteria for the grant of a Subclass 836 visa. This is because, at the time of this decision, the first-named applicant is not the carer of [Mr A] because he is deceased.

18. In addition, because the first-named applicant cannot satisfy the criteria for the grant of a Subclass 836 visa, the second-named 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. Further, no claims have been made that the second-named applicant meets the primary criteria for the grant of a Subclass 836 visa.

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

    Aged Dependent Relative (Subclass 838) visa

20. The evidence before the Tribunal is that the first-named applicant was born on a specific date in 1978. The Tribunal finds that the first-named applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the first-named applicant is not old enough to be granted an age pension under the Social Security Act1991. 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.

21. The Tribunal finds that, because the first-named 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.

22. In addition, the Tribunal notes that the secondary visa was born on a specific date in 1982. 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

23. At the hearing, the primary applicant gave credible oral evidence that she has no family members in the Philippines; that her father is deceased and that her mother; [number] sisters and one brother are Australian citizens living in Australia. Given these circumstances, the Tribunal has considered whether the applicants may meet the requirements for Subclass 835 (Remaining Relative) visas. However, all the documents on the Department’s file indicate that the applicants applied for a Carer visa. Item 1123B(2) of Schedule 1 provides that the visa application charge for a Carer visa is $1,880 and for a Remaining Relative visa is $4,560. There is no evidence before the Tribunal that the applicants paid the charge for Remaining Relative visas. Accordingly, the Tribunal finds that the applicants have not made valid applications for Remaining Relative visas. To conclude, at the time of this decision, there is no material which would permit a finding that either or both applicants meet the prescribed criteria for Subclass 835 (Remaining Relative) visas.

    Consideration of request for referral to the Minister for intervention

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

25. 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.

26. 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’).

27. 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.

28. 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.

29. The first-named applicant gave oral evidence that she had been living in Australia since 2015; that she had adopted the values and culture of the country; that her son had been born in Australia; that Australia was her ‘life’ and ‘home’; and that she wished to remain living in Australia. When asked, she told the Tribunal that she was working part time (in the afternoons) as a [Occupation 1].

30. She told the Tribunal that she had cared for [Mr A] because she was the only one who had been in a position to do so. She said that [Mr A]’s children had not been in a position to provide him with care because they had their own families and she also noted that [Mr A] had not wanted them to care for him. She also said that [Mr B] was the only one of [Mr A]’s siblings who lived near him, but that [Mr B] had not been able to provide the care because he had health issues (an issue with his shoulder and a heart problem) and had his own family responsibilities.

31. She told the Tribunal that, by the time [Mr A] died, she had been caring for him for nearly four years. She said that it had been her pleasure to care for him. She explained that she had lived with him and provided daily care, including cooking for him; feeding him; administering his medication; taking his blood pressure; giving him daily massage and moving his arms and legs; monitoring his catheter and generally monitoring his health because he was prone to infections. She said that he had been unaware of a number of things, and she recounted how she had picked up on a particular health issue and taken him to the hospital. She also told the Tribunal that [Mr A] had loved animals, so she had also cared for his pets and cared for his garden. She also said that she and the second-named applicant had taken [Mr A] out for lunch on occasion and ensured that he was comfortable and happy. She told the Tribunal that [Mr A] had been part of her life and that she had always been there for him and that she considered that she gave her best care for him as a family carer. She said that she had been very sad when he died.

32. The second-named applicant gave oral evidence that he was working part time [Occupation 1] in [workplaces]. He told the Tribunal that he and the first-named applicant had lived with ‘Uncle [Mr A]’. He said that [Mr A] had taught him how to be an ‘Aussie’, including how to use power tools. He said that while [Mr A] had been in a wheelchair, he had taught him (the second-named applicant) the best way to do various tasks. He said that he had served as ‘[Mr A]’s hands and feet’ and, under [Mr A]’s instruction, he had completely transformed [Mr A]’s old ‘dusty and rusty’ 4WD car. He said that he was very thankful of what he had learned from [Mr A].

33. [Mr B] gave oral evidence that [Mr A]’s children had been unable to care for [Mr A] as they lived in a different state. He noted that [Mr A]’s daughter is a nurse and that she had wanted the first-named applicant to provide the care. He told the Tribunal that he ([Mr B]) had not been able to provide care for [Mr A], noting that he ([Mr B]) been born in [year] and that there was ‘only so much’ he could do given his ‘bad’ shoulders and his heart disease. He also noted that [Mr A] had not wanted him to be providing him with care. He said that the first-named applicant is a family member and is qualified, so it made sense for her to provide the care.

34. The Tribunal notes the written statement from [Mr B] which was filed in this review. At the hearing, he said that she had ‘given her life’ for the past four years in order to care for [Mr A]—in his view, ‘far more than she needed to’. He said that the applicants had been happy to do this for the long term in order to make [Mr A] happy. He told the Tribunal that the applicants had loved [Mr A]. He recounted how the applicants had taken [Mr A] fishing and had made a rod with an electric arm for him to use.

35. The Tribunal also asked [Mr B] questions to establish whether, but for [Mr A]’s death, reg 1.15AA(1)(e)(ii) would have been met. That is, whether the assistance that [Mr A] had required could not reasonably have been obtained from welfare, hospital, nursing or community services in Australia. He told the Tribunal that [Mr A] had had pride and had wanted to remain living in his own home. He said ‘a lot of the welfare people are unable to do blood pressure readings and the other things that she could do’. With respect to hospital and nursing, he said, ‘it’s the same, believe it or not’. He said that in hospital, most do not want to be doing the things that the first-named applicant was doing to care for [Mr A], naming abdominal massage and anal stimulation for bowel movement as examples. He said that a person needed to be trained to do such things.

36. [Mr B] also told the Tribunal that for Australia to require the applicants to depart would be a loss for the country. He said that they were both ‘so smart’ and that there would be ‘big benefits’ for the country in having them remain. He said that the first-named applicant wants to be a nurse and that the second-named applicant can work in IT. He also noted that the couple went to church every week. He speculated that if they were able to stay, the first-named applicant would probably end up in an important community position such as the mayor of the regional town where they live.

37. Further, he told the Tribunal that the applicants’ son[2]—who he regarded as his grandson—had been a ‘miracle’ child as the applicants had been told that they could not have children. [Mr B] explained that the couple had named their son after him, using his middle name as the child’s middle name. He was visibly emotionally distressed when telling the Tribunal of his fear that he would lose his grandson if the family were required to depart Australia.

    [2] Copies of the child’s registered birth certificate and the bio-pages of his Philippine passport were filed in this review.

38. The applicants and [Mr B] all impressed the Tribunal as very credible persons, and the Tribunal accepts their oral evidence.

39. In this case, the Tribunal considers that the facts as claimed by the applicants and [Mr B] seem to best be described as:

    ·‘the application of relevant legislation leads to unfair or unreasonable results in a particular case’;

    ·‘exceptional economic … or other benefit would result from the person being permitted to remain in Australia’; and/or

    ·‘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’.

40. Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

41. 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.