BONITO (Migration)

[2019] AATA 3455

BONITO (Migration) [2019] AATA 3455 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr RICARDO BONITO
Mrs JEAN BONITO

CASE NUMBER:  1818109

HOME AFFAIRS REFERENCE(S):          CLF2014/58512

MEMBER:David Barker

DATE:13 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2019 at 2:28pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – relative of an Australian resident – Australian relative sponsor is now deceased – sponsorship no longer in force – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.213, 836.227; rr 1.03, 1.15

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 18 June 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 16 April 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 visas on the basis that cl.836.227, was not met because the Australian relative who had sponsored the applicant is now deceased.

4. On 2 July  2018, the Tribunal wrote to the applicant  inviting him to comment upon the validity of the review application, as information available to the Tribunal indicated the second named visa applicant  was not in the Australian migration zone on the date upon which the review application was lodged.

5. On 7 July 2018, the Tribunal received a letter from the applicant, dated 6 July 2018, which stated the second named visa applicant  departed Australia and returned to the Philippines on 29 January 2018.  The applicant stated that he was withdrawing her as a dependent on his application for review with the Tribunal and that he wished the review to proceed in relation to him as the visa applicant.

6. The applicant was invited to appear before the Tribunal on 19 March 2019 to give evidence and present arguments.

7. On 13 March 2019, the Tribunal received a hearing response indicating the applicant would not be attending the hearing and an email from his representative stating that the applicant is happy for the Tribunal to make a decision based on the materials already provided.  Clause 360(2)(b) of the Act provides for the Tribunal making a decision without a hearing where the applicant has consented to this occurring. This is the case in the current matter and the review has therefore been determined on the evidence available to the Tribunal.

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

   BACKGGROUND

9. The applicant is a national of the Philippines and is 55 years old.

10. The delegate’s decision record, a copy of which was provided with the review application indicates that the applicant applied for the Subclass 836 Carer visa in April 2014, on the basis of care and support he was providing to an Australian relative, his mother, Mrs Marciana Bonito.

11. On 17 November 2017, the Department sent a letter to the applicant requesting he evidence that the sponsorship remained in force at time of decision.

12. On 20 February 2018, the Department phoned the applicant’s representative, as no response had been received. The representative advised that she had sent a response and that she would nonetheless check her records and resend it. Later that day the Department received an email from the representative, which included a copy of the death certificate for the sponsor, Marciana Bonito.

13. In response, the Department sent a letter to the applicant providing him an opportunity to comment on the finding that as the sponsor had passed away, the sponsorship could no longer be considered to be in force.

14. On 14 June 2018, the applicant responded with a signed statement. The applicant confirmed the passing of his mother, the sponsor, and requested that his application continue to be considered. The applicant further stated that his sisters and relatives in Australia were fully supporting him and will guarantee that he will not be a burden to the Australian Government.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the sponsorship mentioned in cl.836.213 has been approved by the Minister and is still in force.

    Are the sponsorship requirements met?

16. 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 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).

17. Clause 836.227 requires that at the time of decision the sponsorship mentioned in cl.836.213 has been approved by the Minister and is still in force.

18. It is not in dispute that the applicant’s mother, Mrs Marciana Bonito, who was the Australian relative who had sponsored the applicant, is now deceased. In a letter provided to the Department, the applicant stated that he had cared for his mother since his arrival in Australia in February 2014, but that she succumbed to multiple ailments and passed away on 29 September 2017.  He states his family is desolate and in mourning.  The applicant states his sisters and relatives in Australia support him continuing with his visa application and he guarantees that he will not be a burden on the Australian government if he is granted a visa.

19. The Tribunal acknowledges the pain and distress experienced by the applicant and other members of his family. However, on the basis of information he has supplied, including a death certificate issued by the office of the Civil Registrar General in the Philippines, the Tribunal finds Marciana Bonito, the Australian relative, passed away on 29 September 2017.  Accordingly Tribunal finds the sponsorship of the applicant is no longer in force.

20. Therefore, at the time of decision, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.227.

21. 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 the prescribed criteria for the visa sought.

22. The evidence before the Tribunal is that the applicant was born in 1963. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

23. Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as information provided with the review application  indicates his wife has returned to the Philippines and the visa application form indicates he has a child and sister who also reside in the Philippines. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

    Second named visa applicant

24. In this matter, the applicant has advised the Tribunal in writing that he wished to withdraw the second named visa applicants request the refusal of her Subclass 836 carer visa application.  In any event, the primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

25. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.836.227.

26. For these reasons, the decision under review must be affirmed.

    DECISION

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

    David Barker
    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.