Aungon (Migration)

[2021] AATA 3599

Aungon (Migration) [2021] AATA 3599 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Belinda Mae Valencia Aungon

CASE NUMBER:  2011664

HOME AFFAIRS REFERENCE(S):          CLF2019/25319

MEMBER:Nicholas McGowan

DATE:30 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made 30 August 2021 at 11:20am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –sponsor had passed away – sponsorship is no longer in force –  decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.213, 836.227

WRITTEN STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2020 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 4 June 2019. 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.

3. The applicant appeared before the Tribunal on 1 April 2021 to give evidence and present arguments. The applicant also provided several documents to the Tribunal (on 29 March 2021) via email, most of which speak to the applicant’s present circumstances. These documents will be shared with the Secretary of the Department for the record.

4. 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 live 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 r.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).

5. The Tribunal is satisfied that the applicant met clause 836.213 at the time of application.

6. On 23 June 2020 the applicant notified the Department of Immigration by email (as contained on the applicant’s Department file) via a Form 1022 (Notification of changes in circumstances), that her sponsor (her aunt) Agnes Valencia had passed-away. Accordingly, the sponsorship ceased being in force from that point. As the evidence from the applicant herself is that her sponsorship is no longer in force, the applicant does not meet clause 836.227 in Schedule 2 of the Regulations. The applicant explained to this Tribunal how she had been a full-time carer for over a year to her aunt and asked the Tribunal for the “…chance to remain here in Australia”. While the Tribunal sympathises with the applicant and her circumstance (including her aunt’s background), these are matters only the Minister can consider as they do not address the requirements necessary for the grant of the visa the applicant has applied for. The Tribunal indicated to the applicant that only the Minister has the authority to make a favourable decision on compassionate grounds alone.

7. 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 alternate prescribed criteria.

   DECISION

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