CHANTIRI (MIGRATION) - [2024] ARTA 106

CHANTIRI (MIGRATION) [2024] ARTA 106 (18 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Mr Elias Chantiri
Mrs Katia Abou Sleiman
Master Angelo Chantiri
Master Chris Chantiri
Respondent:  Minister for Home Affairs
Tribunal Number:  2017358

Tribunal:Kira Raif
Place:Sydney
Date: 18 November 2024
Decision:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas

Statement made on 18 November 2024 at 2:54pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant was sponsored by the spouse of a relative who had passed away – no longer a relationship between the applicant and the sponsor – sponsorship cannot be approved and cannot continue to be in force at the time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 836.213, 836.227

STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2020 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named visa applicant (the applicant) is a national of Lebanon, born in September 1968. He applied for the visa on 14 November 2018. The application includes his partner and children. The delegate refused to grant the visas on the basis that cl 836.213 was not met because the delegate was not satisfied the applicant was sponsored in accordance with that provision. The applicant seeks review of the delegate’s decision.
The applicants appeared before the Tribunal on 18 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the son of the sponsor, Mr Massoud. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
At the time the application was made, 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 applicants are 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.
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 reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 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).
Is the sponsorship approved and still in force?
The applicant provided to the Tribunal a copy of the primary decisions record. It indicates that when making the application, the applicant claimed that the person requiring his care was Mr Tanios Youssef Georges Massoud. It is stated that the applicants were sponsored by Mr Massoud.
The primary decision record indicates that the applicant provided with the application evidence of his relationship with the sponsor, who was married to his aunt (father’s sister) Miriam Chantiri. The delegate noted that Ms Mariam Chantiri passed away in October 2016. The delegate found that the applicant was sponsored by the spouse of a relative who had passed away, so there was no longer a relationship between the applicant and the sponsor.
In oral evidence the applicant stated that it was Mr Massoud who asked for his help and that is why he acted as the sponsor. The son of the sponsor, Mr Massoud explained in his oral evidence to the Tribunal that his father was unwell but he could not care for his father due to his financial commitments and he could not leave his father at home on his own, so sponsoring the visa applicants was the best and the most ‘humane’ option that was available to him.
The evidence provided with the application confirmed there was no biological relationship between the applicant and the sponsor and that the sponsor is the spouse of the visa applicant’s biological aunt. The applicant’s representative refers to the definition of ‘aunt’ and ‘uncle’ and notes that the Macquarie Dictionary definition of ‘uncle’ includes the husband of an aunt and includes forms of relationships not related by blood. The representative submits that this definition has been adopted by the Tribunal the past.
Ultimately, it is not necessary for the Tribunal to determine whether the nephew – uncle relationship ceases upon the death of the biological relative (the aunt). This is because the applicant informed the Tribunal that the sponsor passed away in May 2022. A copy of his death certificate has been provided to the Tribunal. Thus, even if the applicant was sponsored by a relative at the time of the application and even if the sponsor was capable of meeting the definition in cl. 836.213, the Tribunal finds that the sponsorship cannot be approved and cannot continue to be in force at the time of decision due to the death of the sponsor. The Tribunal finds that the visa applicant does not meet cl. 836.227. The secondary applicants do not meet cl. 836.321 and there is no evidence before the Tribunal to indicate that they meet the primary criteria for visa grant.
The visa applicants are not old enough to be granted the Aged Dependent Relative visas. The applicant stated on the application form that he and his partner have a number of relatives residing outside of Australia and they do not meet the definition of the term ‘remaining relative’.
The applicant told the Tribunal that it is unfair that his application is unsuccessful due to an interpretation error by the delegate and the delay in the Tribunal conducting the review. The Tribunal acknowledges the long delay it has taken to process this case by the Tribunal. It does not make a finding as to whether the interpretation of the relationship between the applicant and sponsor preferred by the delegate was the correct one. As the Tribunal explained during the hearing, it has no discretion to waive the statutory requirements despite any circumstances that led to the present outcome. Having found that requirements of cl. 836.227 are not met, the Tribunal has no discretion and no option but to affirm the decision under review.
Conclusion
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.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Date(s) of hearing 18 November 2024
Representative for the Applicant: Miss Eva Abdelmessiah (MARN: 0636719)