El Masri (Migration)

[2023] AATA 2351

El Masri (Migration) [2023] AATA 2351 (25 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mouna El Masri

REPRESENTATIVE:  Mr Houssam Hayba (MARN: 0001536)

CASE NUMBER:  2114112

HOME AFFAIRS REFERENCE(S):          CLF2016/83311

MEMBER:Kira Raif

DATE:25 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.213 of Schedule 2 to the Regulations

Statement made on 25 July 2023 at 8:55am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – applicant a relative of sponsor – mother and daughter – no evidence of relationship provided to department – national IDs and family book provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 836.213

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 22 September 2021 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).0

2. The applicant is a national of Lebanon, born in 1970. She applied for the visa on 27 October 2016. The application was initially refused in June 2018 as the Carer certificate provided with the application did not meet the statutory requirements. The Tribunal previously remitted the matter in December 2020 when the applicant provided a new Carer certificate. In September 2021 the delegate again refused the application as the delegate was not satisfied the applicant was a relative of the sponsor, as required by the sponsorship requirement in cl. 836.213. The applicant seeks review of that decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

4. 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 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.

5. 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).

   Are the sponsorship requirements met?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored by Ms Houda El Homsi. Ms El Homsi stated on the sponsorship form that the visa applicant was her mother. The primary decision record indicates that in February 2021 the delegate wrote to the applicant requesting her to provide evidence of her relationship with the sponsor. The applicant requested more time to provide the requested documents but had not done so by the time of the primary decision.

7. In July 2023 the Tribunal wrote the applicant requesting her to provide evidence of her relationship with the sponsor. The applicant replied on 24 July 2023 by providing a copy of the sponsor’s Family book and the Lebanese ID card. The Family Extract Statement identifies Mona El Masri as the mother of Houda El  Homsi. Similarly, the sponsor’s ID card indicates that Mona El Masri is the mother of Houda El Homsi.

8. Having regard to these documents, the Tribunal is satisfied that the sponsor is the child of the applicant and a ‘close relative’ within the meaning of paragraph (b). The Tribunal is satisfied that the sponsor is an Australian relative of the applicant (within the meaning of paragraph (b)(i)). The Tribunal is satisfied that the sponsor is an Australian relative who had turned 18 when the application was made. The Tribunal is satisfied the sponsor is usually resident in Australia. The sponsorship was evidenced by the completion of the sponsorship form.

9. The Tribunal is thus satisfied that at the time of the application, the applicant was sponsored by an Australian relative who had turned 18 and was a settled Australian citizen or permanent resident and who was usually resident in Australia. The Tribunal finds that the applicant meets cl. 836.213.

   Conclusion

10. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

11. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.213 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member