Jimenez (Migration)

[2023] AATA 3450

Jimenez (Migration) [2023] AATA 3450 (10 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonn Cyrus Manantan Jimenez

REPRESENTATIVE:  Mr Charlie Bulos, IM & EM Lawyers & Consultants Pty Ltd

CASE NUMBER:  2001789

HOME AFFAIRS REFERENCE(S):          CLF2019/35993 CLF2015/65770

MEMBER:Michael Ison

DATE:10 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 10 October 2023 at 5:00pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – secondary applicant member of family unit aged over 18 years – dependency – primary visa  holder mother granted citizenship without knowledge of applicant and representative and no longer holds visa – applicant cannot meet secondary or primary criteria and not eligible for other visa subclasses – possibility of applying for other visa classes – request for referral for ministerial consideration not granted – applicant can apply directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359AA
Migration Regulations 1994 (Cth), rr 1.12, Schedule 2, cl 836.321

CASE
Davis v MICMSMA [2023] HCA 10

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 23 January 2020 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr Jonn Cyrus Manantan Jimenez who is 26 years of age and is a national of the Philippines. Mr Jimenez is referred to as the applicant or the dependent visa applicant in these reasons for decision.

3. The applicant first arrived in Australia on 21 June 2015 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 21 September 2015.

4. On 17 September 2015 the applicant applied for an onshore Subclass 600 visa, and it was granted on 28 September 2015. The applicant’s second Subclass 600 visa was valid to 21 March 2016.

5. On 22 October 2015 the mother of the applicant Ms Charito Elma Manantan Jimenez, who at the time was also a national of the Philippines, applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) Carer visa while in Australia on the basis Ms Jimenez is a relative of her sponsor Ms Milagros Reyes, who is her sister and the aunt of the applicant. The applicant was also included in this Other Family (Residence) (Class BU) (Subclass 836) Carer visa application as a secondary or dependent applicant as a member of the family unit of the primary visa applicant, his mother Ms Jiminez.

6. Ms Jimenez is referred to as the primary visa applicant or the mother of the applicant in these reasons for decision.

7. The person who required assistance in relation to the Subclass 836 Carer visa application lodged by the primary visa applicant is Ms Rosalina Manantan who had Australian citizenship conferred on 16 December 2002 and is 100 years old. Ms Manantan is the mother of both the primary visa applicant and the sponsor.

8. The applicant was also granted a Bridging A visa at the time the applications for Subclass 836 Carer visas were lodged in October 2015. The applicant’s Bridging A visa had condition 8101 (No Work) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.

9. The applicant departed Australia on 18 November 2015 and returned to Australia on 9 March 2016 as the holder of a Subclass 600 visa.

10. On 28 July 2016 the applicant was granted a second Bridging A visa which had no conditions from Schedule 8 to the Regulations attached.

11. On 18 November 2016 the applicant was granted a Bridging B (Subclass 020) visa, which the applicant continues to hold at the time of this decision. The applicant’s Bridging B visa has no conditions from Schedule 8 of the Regulations attached.

12. On 4 December 2016 the applicant departed Australia, returning on 4 June 2017. The applicant held the Bridging B visa granted on 18 November 2016 when departing and returning to Australia. The applicant has not departed Australia since 4 June 2017.

13. The dependent Subclass 836 visa application of the applicant was refused on 23 January 2020.

14. On 12 March 2020 the applicant’s mother, being the primary visa applicant Ms Jimenez, was granted a Subclass 836 Carer visa.

    The Primary decision of a delegate of the Minister

15. The applicant provided the Tribunal with a copy of the primary decision.

16. The applicant applied for the visa on 22 October 2015. The delegate refused to grant the visa on 23 January 2020 on the basis that the applicant did not satisfy the requirements of cl 836.321 of Schedule 2 to the Regulations. Clause 836.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant (his mother) at the time of decision. The delegate found the applicant did not demonstrate he continues to meet the definition of being a ‘member of the family unit’ of the primary visa applicant, his mother, as defined in reg. 1.12 and related provisions of the Regulations and therefore the delegate was not satisfied the applicant meets cl 836.321 of Schedule 2 of the Regulations.  It is the refusal to grant the applicant a Carer visa as the dependant visa applicant that is the subject of this review. 

    Tribunal hearing

17. The applicant appeared before the Tribunal on 3 October 2023 to give evidence and present arguments, in person.

18. The Tribunal also received oral evidence from the primary visa applicant, Ms Jimenez, in person. The sponsor, Ms Reyes, participated in the hearing by telephone but was not required to give evidence.

19. The applicant was represented in relation to the review by a migration lawyer, Mr Charlie Bulos of IM & EM Lawyers & Consultants Pty Ltd. Mr Bulos is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing in person.

20. At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing.

    Pre-hearing submissions

21. The Tribunal received the following submissions on behalf of the applicant’s representative prior to the Tribunal hearing, with the main, but not necessarily all, documents attached to each submission noted:

    13 September 2023

    ·a two-page statutory declaration declared by the applicant on 13 September 2023 with seven documents attached, being;

    ·a copy of page 8 from the Form 47A ‘Details of child or other dependent family member aged 18 years or over’ which includes the answer to question 26 ‘Give details of the dependent’s main source of financial support where the primary visa applicant states her sister Ms Reyes has been the applicant’s main source of financial support, providing food, rental assistance and giving him AUD150 per week since 20 June 2015; and on the same page where the primary visa applicant also states other sources of financial support for the dependant applicant are bank deposits of one million Philippine Pesos (P1,000,000) and USD6,000;

    ·a Deed of Sale of real estate in the Philippines certifying the applicant’s parents sold the property for four million and five hundred fifty thousand Philippine Pesos (P4,550,000), and a Transfer Certificate of Title, dated 7 October 2014;   

    ·a bank account passbook in the name of the primary visa applicant Ms Jimenez from the Bank of the Philippine Islands, showing her bank transactions, for the periods of 3 November 2014, 31 December 2014 and from March to June 2015;

    ·a letter dated 7 July 2021 from William Angliss Institute of TAFE (William Angliss) certifying the applicant was enrolled as a full-time international student in a Bachelor of Tourism and Hospitality Management that commenced on 2 August 2017 and was completed on 1 July 2021;

    ·a course completion certificate for a Bachelor of Tourism and Hospitality Management issued to the applicant from William Angliss dated 10 August 2021;

    ·a receipt issued to the applicant from William Angliss dated 4 November 2019, in the amount of AUD9,180.00 for “Fees”; and

    ·an international student tuition fee invoice issued to the applicant, from William Angliss for Semester One (February to June) 2019, in the amount of AUD2,175.00, invoice date 23 November 2018.

    23 September 2023

    ·a six-page written statement from the representative, dated 23 September 2023; and

    ·a one-page statutory declaration declared by Ms Reyes on 22 September 2023.

22. At the commencement of the Tribunal hearing the representative handed the Tribunal two documents being tuition fee invoices from William Angliss for Semester Two of 2018 in the amount of AUD2,300 and for Semester One of 2019 in the amount of AUD2,175.

23. The Tribunal confirmed with the applicant’s representative at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.  

24. The Tribunal also engaged in other correspondence with the applicant and the representative in relation to administrative matters associated with this review.

    Tribunal’s decision

25. The Tribunal has had regard to the oral evidence of the applicant and the primary visa applicant, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Other Family (Residence) (Class BU) (Subclass 836) visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issue in this review in the primary decision was whether the applicant is a member of the family unit of the primary visa applicant by being dependent upon her at the time of the Tribunal’s decision thereby satisfying cl 836.321 of Schedule 2 to the Regulations.

28. During her evidence to the Tribunal the primary visa applicant told the Tribunal that she applied for Australian citizenship in 2022 and was granted Australian citizenship in March 2023. The Tribunal accepts this evidence.

29. The applicant told the Tribunal he was not aware of his mother being granted Australian citizenship.

30. The representative told the Tribunal he was not aware of the primary visa applicant having been granted Australian citizenship.

31. The Tribunal explained to the applicant that his mother’s evidence of being granted Australian citizenship in March 2023 changed the determinative issue in his review from whether he is a member of the family unit of his mother (as the former primary visa holder) based on the dependency criteria in the Regulations to whether applicant continues to be the member of the family unit of anyone who holds a Subclass 836 Carer visa at the time of the Tribunal’s decision.

32. Clause 836.321 of Schedule 2 to the Regulations provides:

    The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

33. The Tribunal then shared with the applicant the evidence given by his mother of having acquired Australian citizenship in accordance with the procedure set out in s 359AA of the Act. The Tribunal explained both the relevance of this information to the applicant’s review and the consequences for the applicant’s review if the Tribunal relied upon the information. At the relevant times in the hearing the applicant acknowledged to the Tribunal that he understood the relevance of the information to his review and also understood the consequences for his review if the Tribunal relied upon the information.

34. The Tribunal adjourned the hearing for a short time to allow the applicant to discuss the information the Tribunal shared with him with the representative and his mother before responding to or commenting upon that information. Upon resumption of the hearing the representative confirmed to the Tribunal that the applicant, his mother and the representative had sufficient time to discuss the information the Tribunal shared with the applicant. The Tribunal then invited the applicant to respond to or comment on the information with the applicant providing a “no comment” response.

35. As the Tribunal accepts that the primary visa holder was granted Australian citizenship in March 2023 the primary visa holder no longer holds a Subclass 836 visa (or any visa) at the time of this, the Tribunal’s decision.

36. As the primary visa holder does not hold a Subclass 836 visa at the time of the Tribunal’s decision the applicant cannot meet the requirements of cl 836.321 of being the member of the family unit of a person who is the holder of a Subclass 836 Carer visa.

37. There is no evidence before the Tribunal that the applicant is a dependent of anyone else who holds a Subclass 836 Carer visa. The applicant does not claim, nor is there any evidence before the Tribunal that he can, meet the primary criteria himself for the grant of a Subclass 836 Carer visa.

    Other visa subclasses

38. Visa Class BU also contains two other subclasses of visa in addition to Subclass 836 Carer visa: Subclass 835 Remaining Relative visa and Subclass 838 Aged Dependent Relative visa.

39. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 Remaining Relative visa as the applicant’s ‘near relative’, as that term is defined in reg 1.15(2), resides in the same country as the applicant. The applicant’s visa application reveals that the applicant has a 24-year-old sibling who remains resident in the Philippines. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.

40. The evidence before the Tribunal is that the applicant was born on [day deleted] of October 1996. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 Aged Dependent Relative visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.

    Referral for consideration of Ministerial Intervention

41. The Tribunal accepts the evidence before it that the primary visa applicant applied and was granted Australian citizenship without the advice or knowledge of the representative. It was clear to the Tribunal during the Tribunal hearing that the primary visa applicant did not know the impact her acquiring Australian citizenship would have on the secondary or dependent application of her son, the applicant, for a Subclass 836 Carer visa.

42. The Tribunal has actively considered ‘referring’ the applicant’s visa application to the Minister for consideration of the Minister exercising the Minister’s powers under s 351 of the Act. Section 351 of the Act states:

    (1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

    …

    (3)The power under subsection (1) may only be exercised by the Minister personally.

    …

    (7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

43. The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.

44. There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is actually the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not. 

45. In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be referred to the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.

46. While the administration of the Ministerial Instructions by the Department has been ruled as unlawful by the High Court, the Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.

47. The Ministerial Instructions are not a statement of law but do make it clear that Ministerial Intervention is not part of the visa process and so the Tribunal as presently constituted does not make such ‘referrals’ lightly. It is important to note again though, that even if the Tribunal does not refer a matter to the Minister to consider the exercise of the Minister’s power under s 351, an applicant can apply to the Minister directly requesting the Minister consider the exercise of the s 351 power in the applicant’s circumstances.

48. The Tribunal has considered the applicant’s circumstances and has decided not to refer his circumstances to the Minister for the Minister to consider the exercise of the Minister’s powers under s 351 of the Act because:

    ·Despite the applicant being resident in Australia since June 2015, or put another for the last over eight years of his nearly 27 years, and not having returned to the Philippines since June 2017 (when he spent six months there), the applicant has a sibling who has remained in the Philippines and according to the original visa application also three uncles and an aunt who remain in the Philippines; and

    ·The representative informed the Tribunal that the applicant has other means to potentially secure ongoing residence in Australia such as through applying for a Skilled visa.

    Conclusion

49. As the primary visa applicant does not hold a Subclass 836 Carer visa at the time of this decision, the applicant is not the dependent child of his mother, the primary visa applicant, and cl 836.321 is not met.

    DECISION

50. The Tribunal affirms the decision not to grant the applicant a Other Family (Residence) (Class BU).

    Michael Ison
    Senior Member