Dayal (Migration)

[2020] AATA 3607

Dayal (Migration) [2020] AATA 3607 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr John Richard Dayal
Miss Charlotte Racheal Dayel
Mrs Praveena Devi

CASE NUMBER:  1801873

HOME AFFAIRS REFERENCE(S):          CLF2017/13874

MEMBER:Justine Clarke

DATE:18 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 August 2020 at 3:20 pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian ‘relative’ – cousin – strong compassionate circumstances – only family member able to provide care to sponsor – serious, ongoing and irreversible harm and continuing hardship to an Australian citizen – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 836.212

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

2. On 30 January 2017, the applicants applied for the visas. At the time of this decision, the first-named applicant is a 45-year-old national of Fiji. It is claimed that the second and third-named applicants are his dependents, namely his four-year-old daughter and his 36-year-old partner. Hereafter, the first-named applicant is referred to as the primary applicant and the second and third-named applicants are referred to as the secondary applicants.

3. At the time of application, 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 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. Relevantly to this matter, the primary criteria to be met include cl.836.212 and the secondary criteria include cl.836.321.

4. The applicants provided the Tribunal with a copy of the primary decision. The delegate found that the primary applicant was a cousin of the sponsor, Mr Rajesh Kumar Jiwan, and, accordingly, that he did not meet cl.836.212 because a cousin is not one of the familial relationships recognised in the definition of ‘relative’ in r.1.03. The delegate also refused to grant visas to the secondary applicants on the basis that they each did not satisfy cl.836.321.

5. On 24 January 2018, the applicants applied to the Tribunal for review of the primary decision. The applicants were represented in relation to the review by their registered migration agent.

6. On 18 August 2020, the primary applicant appeared, by video from Tasmania, before the Tribunal to give evidence and present arguments. The registered migration agent also attended the hearing by video from the same location as the primary applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The key issue is whether the primary applicant meets cl.836.212; that is, whether, at the time of application on 30 January 2017, he claimed to be the carer of an Australian relative.

9. Clause 836.212 of Schedule 2 to Regulations requires that the applicant claims to be the carer of an Australian relative.

10. 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.

11. The visa application was made on the basis that the primary applicant is the carer of the sponsor. A number of documents submitted to the Department stated that the primary applicant and the sponsor are cousins. At the hearing, the primary applicant told the Tribunal that they are cousins as their mothers were sisters.

12. A cousin is not one of the familial relationships recognised in the definition of ‘relative’ in r.1.03.

13. The primary applicant acknowledged that he did not meet cl.836.212. Notwithstanding, the written submissions of 4 August 2020, that were submitted to the Tribunal, requested that the application for the visas be granted on ‘compassionate grounds’. At the hearing, the primary applicant reiterated this request and made a formal request that the Tribunal refer the matter to the Minister for his consideration. This request is considered further below.

14. From all the evidence before it, the Tribunal finds that, at the time of application, while the primary applicant claimed to be the carer of an Australian relative, he does not satisfy the requirements of cl.836.212. Accordingly, the primary applicant does not meet the criteria for a Subclass 836 visa.

15. In relation to the secondary applicants, the Tribunal finds that, as the primary applicant does not meet cl.836.212 and accordingly, does not meet the criteria for a Subclass 836 visa, the secondary applicants each cannot meet the criteria for a Subclass 836 visa as a member of the family unit of a person who has satisfied the primary criteria. Further, no claims have been made, and no evidence provided, that either of the secondary applicants meet the primary criteria for a Subclass 836 visa.

16. For the reasons above, the applicants each do not meet the criteria for a Subclass 836 visa.

17. In respect of the other visa subclasses—namely an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa—there is no material which would permit a finding that any of the applicants meet prescribed criteria for the visa sought. This is because the Tribunal finds that:

    ·each of the applicants are not entitled to the grant of the Aged Dependent Relative (Subclass 838) visa as there is no evidence that any of the applicants are dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore, cl.838.212 is not met; and

    ·the applicants are not entitled to the grant of a Remaining Relative (Subclass 835) visa because the Australian relative is not a relative of the type prescribed by r.1.15(1)(a). Rather, as has been stated already, the primary applicant and Mr Jiwan are cousins. As such, each of the applicants are not a ‘remaining relative’ and therefore each is unable to meet cl.835.212.

    OTHER ISSUES

    Consideration of request for referral to the Minister for intervention

18. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

19. The written submissions of 4 August 2020 stated that there were a number of ‘special circumstances’ in this case, as follows.

    We have previously provided evidences to the Department of Home Affairs in relation to the family tree which shows how the sponsor and the applicant are related. Even though the sponsor has Chandra Prabha (his aunt, the applicant’s mother) as his close relative in Australia, due to age and physical strength of Mrs Prabha, she is not able to care for the sponsor at the level he required. Also, Mrs Prabha has a son named John Benlad Dayal (the applicant’s brother), who has declared that he was unable to provide the care, as well as the sponsor would not accept his presence. Therefore, the applicant became the only remaining person in the family tree would be able to care for the sponsor, especially, while the applicant cared for the sponsor in the past 4 years, the professional training that the applicant obtained and the bond between the applicant and the sponsor has made the applicant be the only and perfect person for the carer position.

    In addition, the community nursing care services cannot provide 24/7 care for the sponsor, which resulted the sponsor must look for other option. 

20. The primary applicant submitted a number of documents corroborating these various claims. Further, he gave oral evidence about several of them at the hearing. He maintains that he has a special bond of love and trust with the sponsor which stems from their childhood together in Fiji. He told the Tribunal that he came to Australia to study and that he now has a Certificate III in Disability and a Certificate III in Aged Care. He said that he and his family live with the sponsor and he outlined the various tasks he undertook to provide care to the sponsor. The Tribunal notes that he claims to provide direct assistance in attending to various practical aspects of the sponsor’s daily life. He said that he had been providing this care since May 2016. He said that he also works as a carer for a number of hours, as permitted by the conditions of his visa. He said that, during any such absence from the house, his wife cares for the sponsor. He said that, in the past, the sponsor’s parents had provided care to him but that they have both died. He said that there was no one else who could provide the requisite care. He said that the sponsor is not married, has no children and has no brothers or sisters. Further, the primary applicant said that his own parents could not look after the sponsor because of their advanced age.

21. The primary applicant impressed the Tribunal as a credible witness who wanted to ensure good care for his ‘cousin-brother’.

22. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the Direction of the President of the Tribunal entitled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417 and s501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

23. The Tribunal considers that the facts as presented to the Tribunal suggest that there are ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen’, which is one of the examples of unique or exceptional circumstances listed in the Minister’s Guidelines.

24. However, the Tribunal also notes that paragraph 16.2 of the President’s Direction provides that:

    The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

25. The Tribunal notes that, while the primary applicant has submitted a ‘to whom it may concern’ letter from the Hobart Community Health Nursing Service (part of the Tasmanian Health Service) which states that the Service does not provide 24 [hour] nursing care, the letter is dated 15 April 2016 and is addressed to ‘Shyam Morrisby’. The Tribunal considers that the issue of whether the assistance the sponsor needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia warrants further investigation.

26. To conclude, subject to the outcome of such further investigation, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

27. The Tribunal notes that it also remains open to the primary applicant to make an application for such Ministerial consideration through the Department directly. 

    DECISION

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

    Justine Clarke
    Member