Edejer (Migration)

[2020] AATA 5084

Edejer (Migration) [2020] AATA 5084 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ernestine Edejer

CASE NUMBER:  1719241

HOME AFFAIRS REFERENCE(S):          CLF2016/94024

MEMBER:Kira Raif

DATE:26 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 26 August 2020 at 11:24am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – cousin was not a ‘relative’ for the purpose of cl. 835.221– tribunal has no discretion to waive the statutory criteria – Ministerial intervention available – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.221

CASES
Bader v Minister for Immigration (2018) FCCA 485

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 Immigration and Border Protection on 14 August 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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 (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.836.212 and cl. 836.221.

6. Clause 836.212 requires that the applicant claims to be a carer of an Australian relative. Clause 836.221 requires that the applicant is a carer of the person referred to in co. 836.212. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations and includes a close relative (spouse or de facto partner, parent, child sibling or step-child or step-sibling) or a grandparent, grandchild, aunt, uncle, niece or nephew, including such step-relationships.

   Is the applicant a carer of an Australian relative?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be a carer for Ms Vilma Meneses. The applicant stated on the application form that she is the cousin of Ms Magat (Meneses). The applicant was sponsored in the application by Mr Renato Magat who is the spouse of Ms Meneses. Mr Magat stated that he is the cousin of the applicant. The delegate noted that the applicant did not provide any evidence of relationship and in any case, a cousin was not a ‘relative’ for the purpose of cl. 835.221.

8. The applicant provided a written submission to the Tribunal on 28 May 2019. The applicant refers to the health condition of Ms Meneses and explains her need for a carer, stating that no other relatives are available to provide the requisite support. The applicant refers to the evidence of her relationship with Ms Meneses, stating that she is the cousin of Mr Magat. The applicant (through her representative) submits that ‘her role to assist the sponsor should come within the guidelines or criterion and as described above’. It is not entirely clear to the Tribunal how this addresses the issue of the applicant’s relationship with an Australian relative, which is an issue identified by the delegate and which formed the basis of the primary refusal. The representative also submits that the applicant has the eligibility to apply for the visa. With respect, the applicant’s eligibility to make the application is not at issue. The applicant did make a valid application for the visa and a valid application for review.

9. On 18 and 20 August 2020 the applicant provided a number of documents to the Tribunal, which include evidence of family relationship, medical reports, letters of support and other materials. The applicant provided a written submission to the Tribunal on 19 August 2020. The applicant refers to the need to provide extensive support to the sponsor, evidence that the Tribunal accepts. The applicant refers to the reasoning in Bader v Minister for Immigration (2018) FCCA 485 and states that she is providing substantial and continuing support. The applicant has expressed her intention to seek Ministerial intervention. The oral evidence to the Tribunal also referred to the support provided by the applicant to Ms Meneses, the need for such support and the fact that support is not available from other sources.

10. The Tribunal finds that when making the application, the applicant claimed to be a carer of Ms Vilma Meneses (Magat), stating she is her cousin. Although the applicant seems to be the cousin of Ms Magat’s partner, the Tribunal finds that a cousin is not a relative as defined in r. 1.03 so the applicant would not be able to meet the requirements of cl. 836.212 irrespective of whether she is a cousin of Ms Vilma Magat or her spouse Mr Renato Magat. The Tribunal is not satisfied the applicant claimed to be a carer of an Australian relative and the Tribunal finds that the applicant does not meet cl. 836.212.

11. Further, r. 1.15AA(1)(a) requires the applicant to be a relative of the resident. Again, a cousin is not a relative and the Tribunal finds that the applicant does not meet the definition of ‘carer’ in r. 1.15AA. She is not a carer and does not meet cl. 836.221.

12. The applicant was born in February 1975. She is not old enough to be granted the aged pension and she is not an Aged Dependent Relative of an Australian relative. The applicant stated on the form that she has several siblings residing in the Philippines and the Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.

13. The Tribunal acknowledges the applicant’s submissions about the sponsor’s need for care and the unavailability of such care from other sources. The Tribunal accepts that the applicant is providing care and support to Ms Magat. The Tribunal acknowledges the oral evidence that there is no other care available from relatives and that various institutions are unable to provide the requisite level of care. The Tribunal accepts that the applicant is willing to continue to provide the support required by Ms Magat. However, the Tribunal has no discretion to waive the statutory criteria. Having found that the applicant does not meet the requirements for visa grant, the Tribunal must affirm the decision under review.

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

15. 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

16. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member