2206516 (Migration)

[2023] AATA 876

2206516 (Migration) [2023] AATA 876 (6 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2206516

MEMBER:Andrew McLean Williams

DATE:6 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa, yet recommends that there be Ministerial intervention.

Statement made on 06 March 2023 at 3:00pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit Court remittal – approved sponsorship – sponsor deceased during review process – remaining immediate family reside in Australia – referral for Ministerial Intervention – administratively sensitive case handling – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 836.213, 836.221, 836.227; r 1.15

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 by [name] (‘the Applicant’), a citizen of India for review of a decision made by a Delegate of the Minister for Home Affairs made on 14 April 2022 to refuse to grant the Applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant had originally applied for the visa on 18 May 2018. 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 the present 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, the primary criteria include clause 836.227, which requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister, and remains in force as at the date of the decision. The sponsor mentioned in clause 836.213 must be an ‘Australian relative’ and, pursuant to clause 836.221, the Applicant must be the carer of that sponsoring Australian relative. In this case the Australian relative and sponsor was [the applicant’s] mother, [named] (now deceased).

3. Originally, [the applicant] had applied to become the carer for his elderly mother in May of 2018.  Yet by mistake, [the applicant’s] sister in Australia, rather than his mother was listed as the sponsor in the visa application.  This mistake resulted in the visa application being refused in the first instance, because the person who required care was not listed as the sponsor.  [The applicant] then sought to review that decision, yet it was affirmed by the Tribunal on a prior occasion.  The matter was then taken on appeal to the Federal Circuit Court, which [in] March 2021, determined that the Tribunal’s original decision was infected by jurisdictional error, such that the matter was remitted back to the Tribunal, for reconsideration.

4. On 2 February 2022, a differently constituted Tribunal found that [the applicant] was the carer for his [mother] (indeed, by that stage [the applicant] had been continuously caring for his elderly mother for several years), and amply satisfied the requirements of clause 836.221 such that the Tribunal remitted the matter back to the Department for reconsideration, and subject to that direction from the Tribunal.

5. Unfortunately, [the applicant’s mother] also died on 2 February 2022, being the very same day as the decision of the reconstituted Tribunal had found that the Applicant satisfied clause 836.221. 

6. By the time that the Department reconsidered the matter on 14 April 2022, in light of the Tribunal’s direction given on 2 February 2021, the Delegate found new grounds upon which to find that [the applicant] was ineligible for the visa, given that he was now unable to satisfy clause 836.227, such that [the applicant] could not claim to still be his mother’s carer as at the date of the making of the decision regarding the visa, notwithstanding the fact of his having cared for her continuously between 2018 and the date of her death, on 2 February 2022.

7. The Applicant appeared before the Tribunal on 17 February 2023. The situation was explained to him, and he understood that the Tribunal does not have the jurisdiction to overcome the effect of clause 836.227, no matter the irony of this outcome.  Unfortunately, [the applicant] also has no home to return to in India, and is now beyond the official retirement age in India, such that he cannot resume working in that country.  All of his remaining immediate family reside in Australia. 

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, yet this case now warrants consideration for Ministerial intervention.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the Applicant can meet the requirements of clause 836.227, which clearly he now cannot, because of the death of his mother in the intervening period before the making of a decision on [the applicant’s] eligibility for the visa.   

10. Had [the applicant’s] case been handled in a more “administratively sensitive” manner that allowed him to simply correct the original error of listing his sister (by mistake) as the sponsoring Australian relative in lieu of his mother (who was always the intended recipient of care), then [the applicant] would have received the visa without requiring him to endure the uncertainty, cost, and unseemly delay of three applications to this Tribunal and an appeal to the Federal Circuit Court, which delay ultimately caused him to become ineligible for the visa by reason of the death of his mother on the same day as he was assessed by the Tribunal as eligible under clause 836.221.  Now, [the applicant] has no home or job to return to in India and will be apt to face great financial hardship.  On these grounds Ministerial intervention may be warranted.

11. For the reasons given above, the Applicant does not meet the criteria for a Subclass 836 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

12. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa, yet recommends that there be Ministerial intervention.

    Andrew McLean Williams
    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.