2009607 (Migration)

[2024] AATA 2832

2009607 (Migration) [2024] AATA 2832 (22 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Anne O'Donoghue (MARN: 9368943)

CASE NUMBER:  2009607

MEMBER:Glynis Bartley

DATE:22 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 July 2024 at 8:29am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – person requiring care deceased – sponsor settled and usually resident in Australia – request for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.213, 836.221, 836.321; rr 1.03, 1.15

CASES

Nguyen v MICMSMA [2020] FCA 1732
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

ISSUE

1. The issue in this review is whether the first named applicant (the applicant), [named], is the ‘carer’ of an Australian relative at the time of this decision.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made 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).

3. The applicants applied for the visas on 6 March 2020. At that time, 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 836 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.

4. At the time of application, the applicant claimed that he was providing care to his sister, [Sister A], who was diagnosed with metastatic breast cancer in February 2019.

5. The delegate refused to grant the visas on 28 May 2020 on the basis that the applicant did not satisfy cl.836.213 of the Regulations because he was sponsored by his daughter, [Daughter A], rather than his sister.

6. The applicants applied to the Tribunal for review of the delegate’s decision on 9 June 2020.

7. Sadly, the applicant’s sister, [Sister A], died [in] May 2021, aged [age] years.

8. On 21 June 2024, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments.

9. The applicants’ representative declined the hearing invitation on their behalf on 8 July 2024, and requested that the matter be determined on the papers.

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

    BACKGROUND

11. The applicant is [an age]-year-old citizen of Sweden. According to the application, he was born in Iraq and migrated to Sweden in 2000. The applicant’s wife, [named], is [an age]-year-old Swedish citizen who was also born in Iraq. She is included in the application as a secondary applicant. The applicant and his wife have [number] adult children; [most] of whom live in Sweden. One daughter, [Daughter A], is an Australian citizen and lives in Australia.

12. The applicant has travelled to and from Australia on numerous occasions since 2005 on various Tourist, Visitor and E visas. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicants’ representative provided additional documents to the Tribunal, including but not limited to the following: a Bupa Carer Visa Report, dated [in] February 2021, which gave [Sister A] a total impairment rating of 40 points, a medical report regarding [Sister A] by [Doctor A], palliative care advanced trainee at [a named] Local Health District, dated 27 April 2021, a copy of [Sister A’s] death certificate, and written submissions by the applicants’ representative.

    Whether the applicant claimed to be the ‘carer’ at the time of application

14. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant was the carer of his sister, [Sister A].

15. For the purposes of a 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 reg 1.03 of the Regulations.

16. There is a copy of the carer visa application made by the applicant in the Department file. In the application, the applicant claimed to be the carer of his sister, who was an Australian citizen by grant, as evidenced by a copy of her passport provided to the Department.

17. After having regard to the above, I was satisfied that at the time of application the applicant claimed to be the carer of an Australian relative and met the requirements of cl.836.212.

    Were the sponsorship requirements met at the time of application?

18. Clause 836.213 requires that at the time of application, the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

19. As noted above, the delegate refused the visa on 28 May 2020 on the basis that the sponsor (the applicant’s daughter), was not the person requiring care (the applicant’s sister).

20. The applicants’ representative submitted that the delegate incorrectly construed the meaning and legal confines of ‘the Australian relative’ referred to within cl.836.213 as it is taken to be the Australian relative referred to within cl.836.212. She submitted that the applicant is sponsored by his daughter, [Daughter A], who is an Australian citizen. As a daughter falls within the definition of ‘close relative’, the applicant is sponsored by an Australian relative. The applicants’ representative submitted that the applicant met cl.836.213 when the delegate made her decision.

21. Subsequent to the delegate’s decision, on 30 November 2020, the Federal Court concluded in Nguyen v MICMSMA [2020] FCA 1732, that the definite article ‘the’ in cl.836.213 referred to the Australian relative definition in cl.836.111, and not to the ‘Australian relative’ referred to in cl.836.212. Accordingly, the sponsor and the Australian relative requiring the care do not need to be the same person and, provided the sponsor is an Australian relative (or the partner of an Australian relative), has turned 18 years of age and is settled and usually resident in Australia they could meet cl.836.213.

22. I was satisfied that the applicant was sponsored by his daughter, [Daughter A], who is an Australian citizen by grant, as evidenced by a copy of her passport provided to the Department. Furthermore, she was over the age of 18 years when the application was lodged. [Daughter A’s] movement records show that she has been living in Australia for the past 24 years with brief, intermittent trips overseas. I was therefore satisfied that [Daughter A] was settled and usually resident in Australia when the application was lodged.

23. Consequently, I find that the applicant was sponsored at the time of application as required and met cl.836.213.

    Whether the applicant is the carer of an Australian relative at the time of this decision

24. Clause 836.221 requires that at the time of this decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

25. The applicants’ representative acknowledged in her written submissions dated 8 July 2024 that the applicant cannot meet this clause because his sister died in 2021.

26. I agree and find that the applicant is not the carer of an Australian relative at the time of this decision. Consequently, the applicant does not satisfy cl.836.221.

    Conclusions

27. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

28. I also find that the applicant is not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa. There is no evidence that the applicant is dependent upon an Australian relative as required by the definition of ‘aged dependent relative’ in reg 1.03. Therefore cl.838.212 is not met.

29. Furthermore, I find that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as many of the applicant’s near relatives, as defined in reg 1.15(2), reside in the same country as the applicant. According to the application, [most] of the applicant’s adult children and one of his sisters live in Sweden. As such, the applicant is not a ‘remaining relative’ and is therefore unable to meet cl.835.212.

    Secondary applicant

30. For the secondary applicant to be entitled to a visa under cl.836.321, she must continue to be a member of the family unit of a person who satisfies the primary criteria in subdivision 836.2. As the Tribunal has found that the applicant does not meet cl.836.221, the secondary applicant does not meet the requirements of cl.836.321.

    Request for Ministerial Intervention

31. The applicants’ representative requested that the Tribunal refer the matter to the Department for consideration by the Minister pursuant to s 351 of the Act, which gives the Minister discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister considers that it is in the public interest to do so. The applicants’ representative submitted that the following circumstances are unique and exceptional in this case:

    ·The applicant cared for his sister until her death, which caused him trauma.

    ·The applicant’s daughter was eligible to sponsor the applicant. If the applicant’s sister had not died, there was a chance that the applicant may have been granted the subclass 836 visa.

    ·The applicant has substantial family ties in Australia.

    ·The applicant and his wife are in their [age range], and it would be harsh for them to reside offshore away from their close family in Australia.

32. I have considered the above submissions and the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedural Advice Manual (PAM3). I was mindful of the extensive delays in the review process and that the applicant’s sister died approximately one year after the application was lodged to the Tribunal. The illness and subsequent death of the applicant’s sister undoubtedly caused the applicant and other members of the family considerable distress.

33. Nonetheless, having regard to the guidelines and the limited material before me, I decided not to refer the matter. I note that it is open to the applicants to make their own representations to the Minister. In doing so, they may wish to submit documents to support their claims.

    DECISION

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

    Glynis Bartley
    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.