Jones Pilquian (Migration)

[2018] AATA 3544

Jones Pilquian (Migration) [2018] AATA 3544 (8 August 2018)

Subject to hearing

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jocelyn Lissette Jones Pilquian
Mr Cristian Andres Castro Perez
Ms Scarleth Tais Castro Jones
Ms Renata Ignacia Castro Jones

CASE NUMBER:  1613046

DIBP REFERENCE(S):  CLF2015/38796

MEMBER:Mary Urquhart

DATE:8 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2018 at 4:21pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Whether the applicant continues to be the carer of the sponsor at the time of decision – Where the sponsor is now deceased – Decision affirmed

Migration – Request for ministerial intervention – Impact on children if required to return to home country – Children currently studying – Medical evidence of potential impact – Decision referred to the Minister

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 2, cls 836.213, 836.221, 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 Immigration on 3 August 2016 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (“the applicant”) is a Chilean national. She applied for the visa on 29 June 2015. The application includes her partner and 3 children (secondary applicants). 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 (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 include cl.836.221.

3. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was the carer of the sponsor, who is her grandmother. The applicant sought a review of the delegate’s decision.

4. The applicant and secondary appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a cousin Ms Lisa Cortes-Jones. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is a carer as defined in reg.1.15AA and continues to be the carer of the applicant's grandmother.

8. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant's grandmother.

   Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or ‘resident’).

9. At hearing it was confirmed that the applicant’s grandmother had passed away. A Death Certificate was provided which showed the sponsor had passed away ion 9 April 2018.

10. The Tribunal finds the Australian relative sponsor is now deceased. Given this finding the Tribunal concludes that at the time of decision the applicant is not a carer of the Australian relative (as defined in r.1.15AA), and therefore the applicant does not satisfy cl.836.221.

11. Further, cl. 836.227 requires that at the time of decision, the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

12. The Tribunal considers that the sponsorship requirement in cl.836.227 requires a sponsor to be a living person and it is no longer in force where the sponsor is deceased. As such, the Tribunal finds that the sponsorship is not still in force, by reason of the death of the applicant’s grandmother and sponsor.

13. On the basis of the evidence now before it the Tribunal finds that the applicant does not meet the criteria for a Subclass 836 visa. Accordingly the Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

14. The applicant sought to proceed on the basis of seeking Ministerial intervention.

    Ministerial intervention s.351

15. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act. The Minister for Home Affairs has a personal power pursuant to s.351 to intervene, after an unsuccessful review application, to nevertheless grant a visa. Guidelines in relation to the Minister's discretion are set out on the Department's website:

16. The Tribunal has considered the applicant's case and the Ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3)

17. The applicant's representative has submitted that the applicant's case raises a number of the types of 'unique or exceptional circumstances' identified in the published Ministerial Guidelines.

18. It was submitted the application was made in good faith and that the applicant had been providing care to her grandmother until her grandmother passed away. It was submitted she would have continued giving care going forward but for her grandmother’s death.

19. The applicant gave evidence that following her arrival in Australia on a student visa, together with her family, she realized her grandmother was ill and in need of care and she assumed the role of carer. She said she lodged her application some three months after her arrival. Evidence was given of the care she provided up until the death of her grandmother.

20. It was submitted that the applicant’s two children were worthy of consideration and in particular the eldest daughter who is aged 15. Ms. Scarleth Tais Castro Jones is in year 10 at Keilor Downs College. Correspondence from the Assistant Principal was submitted on behalf of Scarleth. It states that she is part way through Year 10. The letter refers to the importance of allowing her to complete year 10 before moving back to Chile. It emphasises the detrimental effect that returning to Chile at this time will have on her education.

21. As well medical evidence was submitted as a unique and exceptional circumstance regarding Scarleth’s mental health. It is in the form of a Mental Health Plan. Evidence was given of the impact of stress upon her not only in the sudden loss of her great grandmother but in the realization that her family may have to return home. She has been consulting doctors and psychologists to deal with her health and anxieties.

22. The applicant’s evidence is that in addition to the pain of the loss of her grandmother the whole family find themselves in a complicated situation with school aged daughters facing the abandonment of schools they are now well settled in with friends that they have made and teachers they “adore”. The applicant has concerns for her daughter’s future university entrance given the interruption to her secondary studies that returning home will bring about.

23. The applicant is further concerned with finding suitable schools mid-term if they return now to Chile.

24. The applicant stressed her husband has been working and supporting the family and that they have punctually paid the international school fees for their daughters.

25. The applicant spoke of having reunited with family in Australia and of the positive impact of this.

26. The Tribunal notes the family has been in Australia some 3 years and their integration into family schools and community.

27. The Tribunal has carefully considered the information and evidence provided in support of her application and the Ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3). The Tribunal formed the view that further inquiries by the Department may be warranted. However considering the matters set out cumulatively, the Tribunal considers the applicant has demonstrated exceptional circumstances. The Tribunal considers it appropriate to refer the matter to the Minister's attention for the possible exercise of his discretion as it considers that the applicants' circumstances to appear to engage a number of factors set out in the Ministerial s.351 guidelines for unique or exceptional circumstances.

    DECISION

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

    Mary Urquhart
    Member