Cavanagh (Migration)

[2020] AATA 2339

Cavanagh (Migration) [2020] AATA 2339 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Deborah Anne Cavanagh
Mr Allan Pius Cavanagh

CASE NUMBER:  1813645

HOME AFFAIRS REFERENCE(S):          CLF2016/86734

MEMBER:Adrienne Millbank

DATE:16 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 16 April 2020 at 3:26pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – ‘resident’ or member of family unit – address of usual residence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA; Schedule 2, cls 836.212, 836.221

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 24 April 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 are nationals of Papua New Guinea. The first-named applicant (the applicant) was born in PNG in 1959 and is 60 years old at the time of decision. The second-named applicant is her spouse, and is 68 years old at the time of decision. The applicants have travelled to Australia on Visitor visas, to visit family members, since 2006, and have not left the country since their last arrival on 4 September 2016.

3. The applicants applied for the visa on 4 November 2016. 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.836.221.

4. The delegate refused to grant the visas on the basis that the applicant did not meet cl.836.221. The delegate found that the applicant did not meet the definition of ‘carer’ prescribed at r.1.15AA of the Regulations, because the person with the medical condition was not the resident or a member of the family unit of the resident. The delegate noted that for the purpose of this application the ‘resident’ is the Australian-citizen sister of the applicant. The sponsor is the spouse of the resident and the brother-in-law of the applicant.

5. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

6. The applicants appeared before the Tribunal on 1 April 2020 by telephone to give evidence and present arguments.

7. The applicants were represented in relation to the review, and the representative attended the hearing by phone.

8. Prior to the hearing, on 23 March 2020, the Tribunal emailed to the applicant a copy of a s.376 certificate. At the hearing, the Tribunal advised the applicant that it had determined the certificate to be valid, because it protected details about a third party who had provided, in confidence, ‘dob-in’ information to the Department. The applicant advised that she had no comment to make about the validity of the certificate. The Tribunal advised the applicants that the dob-in information covered by the s.376 certificate would not be the reason for affirming the decision under review and would, if anything, be only a small part of the reason for affirming the decision under review, because it was of little relevance to the issue before it. The Tribunal nevertheless advised the applicants regarding the gist of the information, which was that they had fomented discord within the extended family in Australia in pursuit of their migration objectives.

9. The Tribunal advised the applicant that she could seek extra time and consult with her representative before commenting on the information, or at any stage during the hearing. The applicant did not seek extra time. She stated that she was seeking to remain in Australia to care for her mother, and that she and the secondary applicant had not provided information that was intended to mislead. The Tribunal accepts that the applicants did not provide misleading information to the Department regarding the issue before it, and gives no weight to the dob-in information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether, at the time of decision, the applicant meets the definition of ‘carer’, and therefore meets cl.836.221.

12. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. Clause 836.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). In the present case, the visa application was made on the basis that the applicant is the carer of her mother.

13. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

14. The sponsorship application was lodged by the applicant’s sister’s spouse (the applicant’s brother-in-law). For the purpose of this application, therefore, the ‘Australian resident’ is the applicant’s sister. The person with the medical condition is the mother of the applicant and her sister. Copies of birth, marriage and citizenship certificates were provided. The Tribunal is satisfied that the resident, her spouse (the sponsor), and the applicant’s mother (the person with the medical condition), are Australian citizens.  

15. In the application and sponsorship forms lodged at the time of application; in statutory declarations; in information provided in response to the Department’s request clarifying the parties’ places of residence; and in the  Carer Visa Assessment Certificate (CVAC) dated 1 February 2017 provided with the application, the residential address of the person with the medical condition is stated as an address in Marsden, Brisbane, and the residential address of the resident and the sponsor is stated as an address in Waterford West, Brisbane.

16. The Tribunal referred the applicants to the information provided at the time of application regarding the residential addresses of her mother (the person with the medical condition), the Australian resident, her sister (the resident), and her sister’s husband (the sponsor). The Tribunal advised the applicant that this information showed that the person with the medical condition was not a member of the family unit of her sister (the resident), at the time when the application was lodged. The Tribunal advised that it appeared she could not meet the criteria of claiming to be the carer of a member of the family unit of the resident, if her mother was not usually resident in her sister and the sponsor’s household.

17. The Tribunal notes that under r.1.12 of the Regulations ‘member of the family unit’ is defined, at (1)(e), as:

    A relative, of the family head or of a spouse or de facto partner of the family head, who:

    (i)does not have a spouse or de facto partner; and

    (ii)is usually resident in the family head’s household; and

    (iii)is dependent on the family head.

18. The Tribunal advised the applicant that it appeared she did not meet the definition of carer in r.1.15AA because the CVAC provided at the time of application did not relate to a member of the family unit of the resident.

19. The applicant did not dispute that her mother and her sister lived at different residential addresses at the time of application, and had done so for many years. She further acknowledged that she and the secondary applicant have lived while in Australia at a separate address from her mother. She stated that she and the secondary applicant wanted to live in the same house as her mother, but because it was a housing commission house they were advised they would have to pay rent, and they could not afford to. The applicant advised that she and the secondary applicant have lived while in Australia in a house rented by their youngest son. She claimed that she has visited her mother daily to care for her.

20. The applicant advised at hearing that her mother has moved in with her sister; that both her sister and her mother are now wheel-chair bound; and that they each receive support from health care workers, from different agencies, who visit them daily. She advised that the health care worker who provides care for her mother comes for two hours a day, and assists her mother to shower, eat and take her medication.

21. A medical certificate signed on 17 March 2020 by Dr Amelia Tong of Waterford Medical Surgery was provided, certifying that the mother of the applicant has been diagnosed with Vascular Dementia; that she requires daily care which the applicant is providing; and that without this care she ‘will have to be moved to a nursing home’. The Tribunal accepts that at the time of decision the person with the medical condition is living with the resident and the sponsor, but notes that no claim was made or evidence provided that the applicant’s mother is financially dependent on the resident and the sponsor.

22. The Tribunal has considered the evidence provided at the time of application and the testimony of the applicants provided at hearing and finds that the person with the medical condition is not a member of the family unit of the resident.

23. The secondary applicant asked the Tribunal at hearing whether the outcome of the application might have been different if the applicant’s mother had sponsored them. He stated that he and the applicant had decided, in consultation with family members, that in the circumstances it was better for the applicant’s brother-in-law to sponsor the application. The Tribunal advised that it was not able to provide migration advice, but noted that the sponsor, given her circumstances, might have been found not capable of understanding the sponsorship obligations.

24. 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.

25. The evidence before the Tribunal is that the applicant was born on 17 May 1959 and is 60 years old at the time of decision. 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 Act1991. While the secondary applicant is 68, and thus old enough to meet age pension eligibility requirements, because he has a spouse he cannot meet the definition of ‘aged dependent relative’ in r.1.03. Therefore, the Tribunal is not satisfied that the applicants meet the definition of ‘aged dependent’ for the purposes of cl.838.212 of Schedule 2 to the Regulations.

26. The Tribunal further finds that the applicants are not entitled to the grant of Subclass 835 (Remaining Relative) visas as the applicants’ near relatives, as defined in r.1.15(2) of the Regulations, reside in the same country as the applicants. Six of the seven adult children of the applicants live in Papua New Guinea. As such, neither of the applicants is a ‘remaining relative’ and therefore they are unable to meet cl.835.212 of Schedule 2 to the Regulations.

    DECISION

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

    Adrienne Millbank
    Member