Geromiano (Migration) - [2025] ARTA 1503

GEROMIANO (MIGRATION) [2025] ARTA 1503 (15 JULY 2025)
Applicant:Ms Shirley Unay Geromiano
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2207195
Tribunal:Senior Member M Sripathy
Place:Sydney
Date:15 July 2025

CORRIGENDUM
Date of Corrigendum: 20 August 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the decision:
The reference to “Subclass 836 (Remaining Relative) visa” on the front page of the decision record is altered to read “Subclass 836 (Carer) visa” as follows:
Decision:   The Tribunal sets aside the decision under review
and remits the application for an Other Family
(Residence) (Class BU) visa for reconsideration,
with the order that the first named applicant
meets the following criteria for a Subclass 836
(Carer) visa:
·     cl 836.213 of Schedule 2 to the Regulations;
and
·     cl 836.221 of Schedule 2 to the Regulations.

Statement made on 20 August 2025 at 5:05pm
DECISION AND
REASONS FOR DECISION
Applicant:Ms Shirley Unay Geromiano
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2207195

Tribunal:Senior Member M Sripathy
Place:Sydney
Date:  15 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the order that the first named applicant meets the following criteria for a Subclass 836 (Remaining Relative) visa:
·     cl 836.213 of Schedule 2 to the Regulations; and
·     cl 836.221 of Schedule 2 to the Regulations.

Statement made on 15 July 2025 at 3:01pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer for de facto partner – relationship, sponsorship and assistance cannot reasonably be provided by other relative or obtained from provider – two previous partner visa applications – inception and development of relationship – medical conditions and care required – three children live too far away, one’s part-time work and another’s own health – no obligation for adult children to provide care – home care package not fully utilised, but even full utilisation would not provide level of care required – spontaneous and credible evidence, documentary evidence and supporting statements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulation 1994 (Cth), rr 1.03, 1.09A(3), 1.15A, 1.15AA(1)(e), (f), Schedule 2, cls 836.213, 836.221
CASES
MIBP v Angkawijaya [2016] FCAFC 5
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
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 13 May 2022 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 836 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 22 May 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Geromiano (Migration)

Details

AGLC: Geromiano (Migration) [2025] ARTA 1503
Case: [2025] ARTA 1503
Decision Date: 15 July 2025

CaseChat Overview and Summary

The applicant, a 35-year-old national of the Philippines, challenged the Department's decision to deny her a Subclass 836 (Carer) visa. The visa application was based on her role as the carer for her de facto partner, Arthur Heron, an 88-year-old Australian citizen with multiple health conditions requiring daily assistance. The case was heard by the Migration Review Tribunal, which had the authority to review the decision and provide a ruling.

The primary legal issues for the Tribunal to decide were whether the applicant had provided sufficient evidence to meet the criteria for a Subclass 836 visa, particularly the requirements that the carer relationship is genuine, the assistance cannot reasonably be provided by another relative or obtained from a provider, and the applicant can provide the required assistance. The Tribunal also needed to assess whether the evidence submitted by the applicant was credible and sufficient to support her claims.

The Tribunal found that the Department had not properly considered the substantial volume of evidence submitted by the applicant, which included statutory declarations, medical reports, bank statements, and other documents that demonstrated the genuineness of the relationship and the necessity for the applicant's care. The Tribunal concluded that the evidence was credible and sufficient to establish that the applicant met the criteria for the visa. The Tribunal set aside the Department's decision and remitted the application for reconsideration, directing that the remaining criteria for a Subclass 836 visa be considered.

The Tribunal's decision was made on 10 July 2025, and the representative for the applicant was Mr Arthur James Heron. The Tribunal directed that the application for an Other Family (Residence) (Class BU) visa should be reconsidered with the criteria for a Subclass 836 (Carer) visa being met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department The applicant is 35 years old, and a national of the Philippines. She applied for the visa on the basis of being the Carer for her de facto partner Arthur Heron, 88 years old, who she claimed has multiple health conditions and requires daily assistance. The application is sponsored by Mr Heron, an Australian born citizen, born in 1937. He provided a sponsorship form signed on 21 May 2019, in which he indicated his relationship status as de facto, naming the applicant as his partner and provides the same residential address as the applicant. He stated that he lives in a one-bedroom retirement unit which he owns. On 20 February 2020 the following material was submitted: Carer visa Assessment Certificate dated 11 February 2020; applicant’s Visitor visa grant notice; copy of sponsor’s Divorce order dissolving the marriage with Larrie Ann Heron; applicant and sponsor’s birth certificates; applicant’s certificate of good moral character; photos of applicant and sponsor together as a couple. On 11 October 2021, the Department requested further information including: evidence of Enduring power of attorney and letter of support for sponsorship; evidence about why the required assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia; Evidence the applicant is willing and able to provide the assistance required; Declaration of all adult relatives in Australia of Arthur James; evidence why any other relative in Australia cannot reasonably provide assistance; and evidence of the applicant’s relationship with her de facto partner Arthur James Heron. The delegate’s decision record refers to requests for extension to provide the information, which was provided to 16 December 2021. As at the date the decision was made, 13 May 2022, the delegate stated no documentary evidence as requested was received. The decision was made on the basis that insufficient evidence was provided to satisfy the delegate that the criteria for the visa are met. Evidence before the Tribunal In correspondence to the Tribunal in June 2022 the sponsor, who was appointed as the review applicant’s representative, advised that contrary to what was stated in the delegate’s decision a substantial volume of evidence was submitted by the applicant in support of the application, and he was concerned that this was not received or lost by the Department. On 30 June and 13 July 2022, the representative (sponsor) forwarded a redacted copy of the Department file obtained under FOI, which contained the submissions and evidence sent by the applicant in December 2021. This included the following:·Form 54 Family Composition form – setting out sponsor’s children and sibling·Part G Q 58 & 59 Details of applicant and sponsor’s family ·Form 80 completed for applicant ·Cover letter setting out attached evidence and addressing circumstances of the relationship ·Statutory Declaration by applicant dated 25 November 2021·Statutory Declaration by sponsor dated 25 November 2021·Statutory Declaration by Larrie Ann Heron dated 25 November 2021·Statutory Declaration by Roger Lucky dated 30 November 2021·My Aged Care My Support Plan (generated 30/8/2017)– referring to ACAT Assessment conducted 29 August 2017 – approvals for Level 4 Home Care Package, Residential permanent care and Residential respite high care·Enduring Power of Attorney to Larrie Ann Herron signed 18 April 2018 and Lee William Herron (secondary) signed 16 August 2018. ·Various Medical reports and letters relating to the sponsor ·Will of sponsor dated 24 August 2021·Applicant’s Suncorp bank statements March -June 2021·Suncorp bank statements for a joint account – December 2019-January 2020, October -November 2020·Sponsor’s Suncorp Growth Saver bank statement showing balance of $95,563 at October 2021·Letter relating to lease renewal for an address in Zillmere, addressed to applicant and sponsor dated 1 September 2020·Australian Seniors Insurance Policy in sponsor’s name, nominating applicant as 100% beneficiary

Decision

Reasons for decision

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 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; and·cl 836.221 of Schedule 2 to the Regulations.Date(s) of hearing: 10 July 2025Representative for the Applicant: Mr Arthur James Heron

Ratio Decidendi

Legal Principle Established

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