AZUPARDO (Migration)

[2021] AATA 2978

AZUPARDO (Migration) [2021] AATA 2978 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Donna Morada AZUPARDO
Mr John-michael AZUPARDO

CASE NUMBER:  2106387

HOME AFFAIRS REFERENCE(S):          CLF2019/105736

MEMBER:SM Justin Owen

DATE:12 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 August 2021 at 5:03pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship in force at time of decision – sponsor died and sponsorship no longer in effect – no appearance at hearing or other response – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 2, cls 836.213, 836.227, 836.321

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 3 May 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 18 December 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 (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 836.227.

3. The delegate refused to grant the visas on the basis that cl 836.227 was not met by the primary applicant because the sponsor, Mr James David Warde Leahy, had died, and the sponsorship was no longer in effect. As the primary applicant did not satisfy the criteria for the grant of the visa, the delegate also found that the secondary applicant, the spouse of the primary applicant, did not satisfy cl.836.321. 

4. On 14 May 2021 the Tribunal wrote to the applicant’s registered migration agent and advised them it had received an application for a review of the delegate’s decision to refuse to grant the applicant a Carer’s visa.

5. On 26 July 2021 the Tribunal invited the applicants through their registered migration agent to attend a hearing to give evidence and present arguments relating to the issues in his case on 18 September 2018 at 9.30am.  The invitation stated that if the applicants did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it. 

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

7. The applicants did not respond to the Tribunal’s invitation.  No request for an adjournment was received.  No submissions were made.  On the morning of the hearing, the Tribunal contacted the applicant’s representative to commence the hearing.  The representative claimed that there had been an intention to withdraw the application and would be immediately actioned and sent through in writing immediately after he ended the telephone call with the Tribunal.  No withdrawal however has subsequently been received by the Tribunal. The Tribunal notes the lack of engagement by the applicants and their representative generally in this matter.  The Tribunal furthermore notes there is no actual confirmation of the withdrawal, or the intention to withdraw, from the primary applicant herself before the Tribunal.  No withdrawal has been received in writing in an appropriate form. The Tribunal is not prepared to accept the matter has been validly withdrawn by the applicants in such circumstances. 

8. The applicants did not make any request for an adjournment or postponement of the scheduled hearing.  The applicants have not provided any further evidence, submissions or information to the Tribunal.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

9. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it. 

10. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the primary applicant is sponsored for the grant of a Carer visa.

13. The applicants provided the delegate’s decision record of 3 May 2021 to the Tribunal.

14. The Tribunal notes that the primary applicant’s sponsor was her uncle, Mr James David Warde Leahy.  The application was lodged on 18 December 2019.  The Tribunal accepts that at the time of application, the sponsorship of the sponsor was approved by the Minister and in force: the primary applicant subsequently met cl.836.213.

15. To meet the requirements of the grant of the visa however, the sponsorship must also remain in force at the time of decision: cl.836.227

16. The decision record states that on 29 April 2021 the Department was advised by the applicant’s representative that the sponsor had died on 24 August 2020.  A death certificate was provided to the Department.  The Tribunal has noted the Victorian Death Certificate of the sponsor that was registered on 2 December 2020 and provided to the Department. 

17. The effect of the death of the sponsor however is that the sponsorship is no longer in effect and the primary applicant is unable to meet the sponsorship requirements for the grant of the visa under cl.836.227.

18. For the reasons above, the primary applicant Ms Donna Morada Azupardo 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 primary applicant meets prescribed criteria for the visa sought. 

19. The primary applicant’s partner, Mr John-Michael Azupardo is the second-named or secondary applicant.  His application for a Carer visa was on the basis he is a member of the family unit of the primary applicant, Ms Donna Morada Azupardo. 

20. If any member of a family unit satisfies the primary criteria, the other members of the family unit are eligible for the grant of the visa if they satisfy the secondary criteria and their applications are made before the Minister has decided to grant or refuse to grant the visa to the first person.

21. To meet cl.836.321, the secondary applicant, Mr John-Michael Azupardo, must continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

22. The Tribunal accepts that the secondary applicant continues to be a member of the family unit of the primary applicant, who is his spouse. 

23. The primary applicant however has not satisfied the criteria for the grant of a subclass 836 Carer visa, given she does not meet cl.836.227 at the time of decision, due to the fact that the sponsor of the visa is deceased and as a result she is no longer able to meet the sponsorship requirements. 

24. As the primary applicant has not satisfied the criteria for the grant of a subclass 836 Carer visa, the secondary applicant is subsequently unable to satisfy cl.836.321.

25. For the reasons above, the applicants do not meet the criteria for a Subclass 836 visa.  In respect of the other visa subclasses no claim has been made and there is no material which would permit a finding that the applicants meet the prescribed criteria for the visa sought.

    DECISION

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

    Justin Owen
    Senior 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.