Freitas Romero (Migration)

[2023] AATA 3973

Freitas Romero (Migration) [2023] AATA 3973 (19 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jessica Luz Freitas Romero
Mr Guillermo Juan Francisco Espinoza Rojas

CASE NUMBER:  2107624

HOME AFFAIRS REFERENCE(S):          CLF2019/104284

MEMBER:Ann Duffield

DATE:19 September 2023

PLACE OF DECISION:  Canberra

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

Statement made on 19 September 2023 at 10:30am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – subject of an approved sponsorship – sponsorship withdrawn – family violence claim – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 836.213, 836.227, 836.325

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 27 May 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 10 December 2019. 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 (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. Relevantly to this matter, the primary criteria to be met at the time of decision include cl 836.325. That clause requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

3. The delegate refused to grant the visas on the basis that cl 836.227 was not met because the sponsor had withdrawn her sponsorship in writing on Form 1022 to the department on 22 March 2021 and the applicants therefore do not have a sponsorship in force at the time of the decision.

4. The applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicants meet the requirements of cl 836.227 and have a sponsorship approved by the Minister and still in force.

   Are the sponsorship requirements met?

7. 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).

8. At the time of application, the applicants were sponsored by Lita Merle Romero Ochoa who is the mother of Mrs Jessica Luz Freitas Romero, one of the applicants. The application was made on 10 December 2019 however on 22 March 2021 Ms Ochoa withdrew her sponsorship and notified the department, as required, on Form 1022. There is no evidence before the Tribunal that Ms Ochoa has reinstated that sponsorship.

9. The applicants claim to have suffered domestic violence at the hands of Ms Ochoa and that she is being vengeful in removing her sponsorship. They have provided some case notes from a domestic violence crisis service dated over the period 2020 to 2021 and extended family violence orders for both applicants against the sponsor dated June 2023.

10. The applicants submit that the Tribunal should take into consideration family violence against them and grant the visas in the same way as it does in relation to spouse cases.

    Tribunal hearing

11. The applicants told the Tribunal that they have been caring for Ms Ochoa since well before they made the application for a carers’ visa. They claim that Ms Ochoa was being abused by her ex-partner and they decided to come and look after her. They first arrived in Australia on religious workers’ visas.

12. The parties accused Ms Ochoa of spreading bad rumours about them but it was Ms Ochoa who was abusing the applicants. They made some complaints to a domestic violence service about Ms Ochoa as early as 2019. Both parties have sought to obtain a copy of Ms Ochoa’s letter withdrawing her sponsorship however they have been prevented from doing so by reason of the Privacy laws.

13. The Tribunal reminded the parties that the reason for the withdrawal was not the issue and Ms Ochoa could withdraw without declaring a reason. The Tribunal confirmed with the parties that Ms Ochoa had not reinstated the sponsorship and they told the Tribunal that they had not seen her for several years. The Tribunal put to the parties that the issue before it was that there was no current sponsorship that was approved and in place. The Tribunal had no discretion to overlook that requirement.

    Findings and reasons

14. The Tribunal acknowledges that the applicants have made some claims in relation to the family violence however the Tribunal has no role or power to take those into consideration in relation to the central question of whether or not they have a sponsor for their visa at the time of this decision.

15. Clause 836.22 sets out the criteria to be satisfied at the time of decision. In particular, cl.836.227 requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force. Clause 836.213(a) states that the applicant is sponsored by the Australian relative.

16. There is no evidence before the Tribunal at the time of this decision that the primary applicant has a sponsorship that has been approved by the Minister and is in force. Therefore she does not meet clause 836.227 of Schedule 2 of the Regulations. As she does not meet this criterion the Tribunal has not proceeded to assess the application against other criteria.

17. Therefore, at the time of decision, the applicant was not sponsored as required by the legislation and does not satisfy cl 836.227. Since the applicant does not meet the relevant criteria, it follows that the secondary applicant does not meet the secondary criteria, specifically cl 836.325 and therefore is also ineligible for the grant of a visa.

    CONCLUSION

18. For the reasons above, the applicants do 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 applicants meet prescribed criteria for the visa sought.

    DECISION

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

    Ann Duffield
    Senior Member