Abdi (Migration)

[2019] AATA 2729

Abdi (Migration) [2019] AATA 2729 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sahra Jama Abdi

CASE NUMBER:  1715749

HOME AFFAIRS REFERENCE(S):           CLF2014/42469

MEMBER:Mary Urquhart

DATE:21 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 May 2019 at 3:12pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – relevant sponsorship no longer in force – applicant’s sponsor passed away – no provision or discretion to grant visa with no sponsorship in place – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1, item 1123B, Schedule 2, cls 836.227, 836.212, 836.213

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 5 July 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 March 2014. 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 (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 to this matter, the primary criteria to be met include cl.836.227.

3. The delegate refused to grant the visa on the basis that cl.836.227 was not met because the relevant sponsorship was no longer in force.

4. The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ifrah Aidid.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the sponsorship has been approved by the Minister and is still in force.

7. The Tribunal discussed with the review applicant the requirements in relation to sponsorship in cl.836.213.

8. The applicant Ms Sahra Jama Abdi, born in Somali gave evidence that she is an American citizen having migrated to the USA in 1993 together with an uncle and his family.  She said she had grown up in the USA and had studied there. She said she worked for some 10 years at the First Virginia Bank and a further three years at the Bank of George Washington before coming to Australia on a visitor visa in 2011. Since that arrival she has applied for a further Visitor visa and then in 2014 for the Carer visa the subject of this review. It was her evidence that her only siblings are all in Australia and that it is her wish to join them here.

9. The evidence is that at the time of the lodgment of the application the applicant was sponsored by her mother Mrs. Fadumo Ahmed Mohamed, the Australian relative. The applicant said that her mother had passed away in May 2017. The Department file reveals that on 7 March 2017 it was notified that the applicant's sponsor had passed away.

10. The Tribunal asked the applicant if she had received correspondence from the immigration Department following notification of her mother’s death. She said she had received 2 letters. It was her evidence that she had not responded to them as she was grieving. The Tribunal notes some two years have now passed.

11. The Tribunal discussed with the review applicant that there is no provision or discretion under the Carer Regulations to grant a visa where there is no sponsorship in place. The Tribunal inquired if the applicant had sought legal advice about her immigration status or had looked into obtaining a more appropriate visa if she wished to live in Australia. She said she had not. Her sister Ms. Aidid advised they could not afford legal advice. The Tribunal notes however that the applicant in her evidence referred to having had “an attorney” or legal advice in relation to aspects of this application.

12. Having considered all the circumstances, and whilst sympathetic to the applicant  the Tribunal  finds that as the sponsor has passed away the applicant's sponsorship is no longer in place and approved by the Minister and the applicant is no longer a carer of a person referred to in clause 836.212.

13. Accordingly the review applicant does not meet cl.836.227 in Schedule 2 of the Regulations.

14. For the reasons 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

15. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Mary Urquhart
    Member