Asha Rani (Migration)

[2023] AATA 380

Asha Rani (Migration) [2023] AATA 380 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Asha Rani

CASE NUMBER:  2003142

HOME AFFAIRS REFERENCE(S):          CLF2020/2073

MEMBER:David Crawshay

DATE:27 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criterion for a Subclass 836 (Carer) visa is met:

·cl.836.213 of Schedule 2 to the Regulations.

Statement made on 27 February 2023 at 9:13am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship by Australian relative – sponsor is applicant’s son and care recipient is applicant’s husband – no requirement that sponsor and care recipient are the same person – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(1)(e)(ii), 1.15AA(1)(b)(i), Schedule 2, cls 836.111, 836.212, 836.213(a)

CASE
Nguyen v MICMSMA [2020] FCA 1732

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 Home Affairs on 31 January 2020 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 January 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 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.836.213, which requires an applicant to be sponsored by the Australian relative or by a spouse or de facto partner of the Australian relative.

3. The delegate refused to grant the visa on the basis that cl.836.213 was not met because the delegate found that the purported sponsor identified in the Form 40SP sponsorship form, Mr Vivek Kumar, was not the Australian relative identified in cl.836.212 and so was unable to be the sponsor.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies cl.836.213 relating to sponsorship.

   Are the sponsorship requirements met?

6. 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 r.1.03 of the Regulations. “Spouse” is defined in s.5F of the Act while “de facto” partner is defined in s.5CB of the Act.

7. As above, the visa application was refused on the basis that the sponsor was not the Australian relative identified in cl.836.212. Clause 836.212 requires that the applicant claim to be the carer of an Australian relative. This Australian relative is known as the “resident” for the purposes of the definition of “carer” in r.1.15AA. The resident may be the person who has a medical condition according to a certificate (currently known as a Carer Visa Assessment Certificate); alternatively, the person who has the medical condition may be a member of the family unit of the relative: r.1.15AA(1)(b)(i). Mr Joginder Paul, the applicant’s partner as described by her in her Form 47OF application form, was found by the delegate to be the Australian relative identified in cl.836.212.

8. The Tribunal notes that the delegate’s decision was made prior to the Federal Court of Australia decision of Nguyen v MICMSMA [2020] FCA 1732. The Court in Nguyen found that there was no express requirement in the criteria in cl.836.2 that the sponsor Australian relative in cl.836.213 and the carer recipient Australian relative in cl.836.212 have to be the same person. After having considered some contextual matters, the Court found that “the” Australian relative in cl.836.213 referred to the Australian relative as defined in cl..836.111 and not to “an Australian relative” referred to in cl.836.212. It found that neither r.1.15AA(1)(b)(i) of the definition of “carer” nor r.1.12(1)(e)(ii)[1] of the definition of “member of the family unit” had any application to the sponsor.

   [1] As a result of amendments made to the Regulations on 16 November 2016, r.1.12(1)(e)(ii) was removed from the definition of “member of the family unit”.

9. Having applied the principles in Nguyen to the particulars of the present matter, the Tribunal finds that Mr Vivek Kumar is not prevented from being the valid sponsor of the applicant. As he is the son of the applicant, he satisfies the requirement found in the chapeau to cl.836.213(a) of being an Australian relative. Because he had turned 18 years of age at the time of application, cl.836.213(a)(i) is met. He was an Australian citizen at that time who had settled in Australia. Therefore, cl.836.213(a)(ii) is met. Finally, Department records indicate that he had been usually resident in Australia when the application was made, and the requirements of cl.836.213(a)(iii) are met.

10. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

12. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criterion for a Subclass 836 (Carer) visa is met:

    ·cl.836.213 of Schedule 2 to the Regulations.

    David Crawshay
    Member