Ginn (Migration)

[2023] AATA 300

Ginn (Migration) [2023] AATA 300 (10 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chloe Rebecca Louise Ginn

CASE NUMBER:  1913127

HOME AFFAIRS REFERENCE(S):          CLF2018/45206

MEMBER:Kira Raif

DATE:10 February 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;

·cl. 836.227 of Schedule 2 to the Regulations.

Statement made on 10 February 2023 at 02:13pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship requirements – visa applied for to take care of grandparents – carer certificate issued for and death of grandmother does not affect sponsorship by or continuing care for grandfather – decision made without hearing necessary – decision under review remitted

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

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 3 May 2019 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).

2. The applicant is a national of the UK, born in October 1998. She made the application for the visa on 26 April 2018. The delegate refused to grant the visa on the basis that cl 836.227 was not met because the delegate did not consider the sponsorship mentioned in 836.213 was approved. The applicant seeks review of the delegate’s 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. When making the application, the applicant stated in response to Question 65 on the application form that she intended to care for her grandmother Frances Miriam Ginn and her grandfather Peter John Ginn. The application was accompanied by the sponsorship form 40 which was completed and signed by Peter John Ginn.

7. During the processing of the application the applicant informed the Department that her grandmother Frances Ginn passed away in 2018. The applicant stated that she continued to care for her grandfather. In her submission to the Tribunal the applicant also provided a statement indicating she continued to act as a carer for her grandfather.

8. The applicant provided to the Tribunal a copy of the primary decision record. The delegate found that with the passing of the applicant’s grandmother, there was no longer a sponsorship in place and hence the applicant did not meet cl. 836.227. The Tribunal does not agree with that assessment. In the Tribunal’s view, when the application was made, it was the applicant’s grandfather Peter Ginn who acted as a sponsor and not her grandmother. That is evident from the fact that it was Mr Peter Ginn who completed form 40, evidencing his intention to sponsor and to meet the sponsorship obligations. The Tribunal acknowledges that the Carer certificate was issued in relation to Ms Frances Ginn but the existence of that certificate does not affect the sponsorship process and its approval, it relates to an entirely different clause in the Regulations.

9. The Tribunal finds that it was Mr Peter Ginn who acted as a sponsor for the applicant when the application was made. He was over 18 years of age at the time of sponsorship, was an Australian relative and was usually resident in Australia. The Tribunal finds that the requirements of cl. 836.213 were met when the application was made. Mr Ginn’s statement to the Tribunal is that he continues to be the sponsor and his intention is to sponsor the applicant who is a carer for him. There is no evidence before the Tribunal to indicate that Mr Peter Ginn should for any reason be disqualified from acting as a sponsor. The Tribunal thus approves the sponsorship by Mr Ginn and is satisfied that it is still in place. The Tribunal finds that the requirements of cl. 836.227 are met.

   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;

    ·cl 836.227 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member