KAILAHI (Migration)

[2018] AATA 2695

KAILAHI (Migration) [2018] AATA 2695 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tamasi Kailahi
Mrs Halangingie Kailahi

CASE NUMBER:  1702661

DIBP REFERENCE(S):  CLF2016/37442

MEMBER:David Barker

DATE:13 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2018 at 8:55am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Relative an Australian relative – Not usually a member of the family unit – Residing at a different addresses – Sponsor’s employment – Bupa Medical Visa Services Certificate – Availability of other support – Ministerial Intervention requested – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth) 1994, rr 1.12, 1.15AA, Schedule 2 cls 836.212, 836.213, 836.221, 836.321

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 1 February 2017 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 visa applicant (the applicant) and second visa named applicant applied for the visa on 21 June 2016. 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.836.212, cl.836.213 and 836.221.

3. The delegate refused to grant the visas on the basis that cl.836.212, cl.836.213 and 836.221 were not met because they were not satisfied that the evidence demonstrated the applicant was a relative of an Australian relative, or that he was sponsored by an Australian relative, or that the person requiring care could be regarded as a member of the family unit of the sponsor.   

4. The applicants appeared before the Tribunal on 4 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s aunt, Ms Nandi Kailahi.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.

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

   BACKGROUND

6. The applicant is a national of Tonga and is 36 years old. At the time of the visa application he was residing in rental accommodation in [Riverwood], NSW.  He continues to reside at this location. The second named visa applicant is his spouse, who resides at the same residential address.

7. The applicants reside in the home of Mrs Latu Kailahi, who is the person identified as requiring care as a result of her medical conditions and related infirmities. Mrs Kailahi was born in Tonga and is 83 years old. She had eight children, two of whom are now deceased. Of her surviving children, four reside in Australia.  It is claimed that the applicant is the child of one of her children who is now deceased.

8. The sponsor in relation to the Carer visa applications is Ms Nandi Kailahi, who claims to be one of the daughters of Mrs Luti Kailahi, who was born in Tonga and is now an Australian citizen.  She is 52 years old and resides in rental accommodation [in] Lakemba, NSW.

9. On 19 May 2016, Dr Moreena Kwa, of Bupa Medical Visa Services found that Mrs Lutu Kailahi suffers from: Type 2 diabetes mellitus, renal impairment, gouty arthritis, hypertension and forgetfulness.  Dr Kwa assigned a 40 point impairment rating.

10. The delegate’s decision record, a copy of which was provided with the review application, indicates the delegate was not satisfied that the documents provided with the visa application demonstrated the applicant was the nephew of the sponsor.  The delegate was also not satisfied the evidence demonstrated a familial connection between the sponsor and Mrs Lutu Kailahi. 

11. The delegate did note that a certificate which met the requirements of Regulation 1.15AA(2) was provided. For the purposes of this application the person with the medical condition was identified as Latu Kailahi.  The delegate’s decision explains that  for the purpose of sponsoring an applicant for a carer visa, Regulation 1.15AA (1)(b)(i) requires that the person to whom the certificate relates must either be the resident or a member of the family unit of the resident. The delegate noted that documents provided to the Department indicate that Mrs Latu Kailahi resides in [Riverwood], NSW and Ms Nandi Kailahi resides in [Lakemba], NSW and that this resulted in a finding that Mrs Latu Kailahi is not usually resident in Nandi Kailahi's household and therefore does not meet the definition of a member of the family unit of the resident as prescribed in Regulation 1.12 (e).

12. Prior to the hearing the Tribunal received various documents, including birth certificates (with translations) for the sponsor, applicant and the applicant’s deceased father.  The Tribunal also received written statements from the applicant, the caree, the sponsor, Ms Ufitonga Williams (daughter of Mrs Lutu Kailahi), Mr Ilaisa Kailahi (son of Mrs Lutu Kailahi) and Ms Elaona Kailahi (daughter Mrs Lutu Kailahi), as well as a further copy of a family tree diagram, medical evidence regarding the caree and a copy of a support letter from Rev. Alimoni T. Taumoepeau.

    THE HEARING

13. The applicant gave evidence his parents separated when he was three years of age and that his mother subsequently moved to New Zealand.  He said his grandmother, Mrs Lutu Kailahi, looked after him in her home after his parents separated until she came to Australia in 1999.  He said he and his spouse came to Australia in 2011 and since then have resided with his grandmother, initially in privately rented accommodation in Ashfield, NSW and since 2014, in a home provided to Mrs Lutu Kailahi by NSW Housing in Riverwood, NSW.  He said his aunt, Ms Nandi Kailahi resides in Lakemba with her youngest son.  The applicant gave evidence his grandmother receives income support from Centrelink.

14. Ms Nandi Kailahi gave evidence she was very involved in looking after the applicant, in the home of her mother, until she came to Australia in 1984.  She said her mother, Mrs Lutu Kailahi and her father came to Australia in 1999 and resided with her and her children and grandchildren.  She said her father has passed away since then. She said the applicants also moved into her home, which resulted in significant overcrowding.  She said her landlord said too many people were staying in her home and at that point her mother and the applicants moved into separate rental accommodation until her mother was granted public housing in Riverwood, NSW.

15. Ms Nandi Kailahi said her mother needs some one to look after her on a daily basis because of her age and the cumulative impacts of her health problems.  She said she is unable to look after Mrs Lutu Kailahi because of her employment in Qantas catering.  She said other family members either have parenting responsibilities or live too far away from Mrs Lutu Kailahi to look after her.  She said her mother is dependent on the care provided by the applicant and his wife. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The Tribunal has before it the Department’s file relating to the visa application and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the oral evidence provided by the applicant and witnesses during the hearing.

17. The Tribunal has considered all the information and evidence before it, including the oral evidence provided during the hearing and the documentary evidence as to the identity and connections between family members and statements by family members. The Tribunal accepts that Ms Nandi Kailahi is the biological child of Mrs Lutu Kailahi.  The Tribunal accepts the applicant is the biological child of Mr Toni Kailahi, who was in turn the biological child of Mrs Latu Kailahi. Nevertheless, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Are the sponsorship requirements met?

18. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. On the basis of the oral evidence provided during the hearing and the visa application form submitted to the Department, the Tribunal finds that the visa application was made on the basis that the applicant claimed to be the carer of his grandmother, Mrs Lutu Kailahi, who is an Australian permanent resident.

19. Clause 836.221 requires that at the time of decision the applicant is the carer of the Australian relative mentioned in clause 836.212.

20. Regulation 1.15AA defines the term “carer”. It provides that the applicant is a carer of an Australian permanent resident, usually resident in Australia (the resident) if, amongst other things, the applicant is a relative of the resident and a person (being the resident or a member of the family unit of the resident) has, according to a certificate, a medical condition causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life: r.1.15AA(1)(b).

21. At the hearing the Tribunal raised the issue noted in the decision record, that the regulations require the person with the medical condition to be either the resident or a member of the family unit of the resident: r.1.15AA(1)(b)(i). The effect of cl.836.212 and cl.836.213 and r.1.15AA(1) means in the circumstances of this matter, the resident referred to in r.1.15AA(1)(b)(i) is the sponsor of the applicant.

22. The Tribunal notes the Sponsorship Form 40 provided to the Department is completed in Ms Ms Nandi Kailahi’s name, with her personal information and her signature. There is nothing on the form to indicate it was completed on behalf of Mrs Lutu Kailahi. The Tribunal notes the form includes a sponsorship undertaking signed by Ms Nandi Kailahi. Regulation 1.20(1) states that a sponsor of an applicant for a visa is a person who undertakes the obligations stated in subregulation (2) in relation to the applicant. The Tribunal finds the undertaking signed by Ms Nandi Kailahi on the Sponsorship Form 40 complies with r.1.20(2). On the evidence before it the Tribunal finds that Ms Nandi Kailahi is the sponsor of the applicant in this matter.

23. On the basis of the oral evidence of the applicant and Ms Nandi Kailahi, and the information provided to the Department, the Tribunal finds that Mrs Lutu Kailahi is the person with the medical condition referred to in the Bupa Medical Visa Services certificate provided to the Department.

24. As the person with the medical condition is not the sponsor, the Tribunal has considered whether the person with the medical condition is a member of the family unit of the sponsor. Regulation 1.12(e)(ii) requires that in order to be considered a member of the family unit of the family head (in this instance, the sponsor), unless the person is the spouse or de facto partner, the dependent child or the dependent child of the dependent child of the family head, the person must be a relative who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

25. The Tribunal finds that the sponsor in this matter, Ms Nandi Kailahi, resides in [Lakemba] NSW. The Tribunal accepts as evidence of this the oral evidence of the applicant and Ms Nandi Kailahi and notes this is consistent with the information provided to the Department.

26. The Tribunal finds that the person with the medical condition in this matter, Mrs Lutu Kailahi, resides in [Riverwood], NSW. The Tribunal accepts as evidence of this the oral evidence of the applicant and Ms Nandi Kailahi and notes this is consistent with the information provided to the Department.

27. As the person with a medical condition, Mrs Lutu Kailahi, resides at a different address to the sponsor, the Tribunal finds she is not usually resident in the sponsor’s household. As Mrs Lutu Kailahi is not usually resident in the sponsor’s household, she is not a member of the family unit of the sponsor as defined in r.1.12, and consequently the provisions of r.1.15AA(1)(b)(i) are not met and the applicant is not a carer for the purposes of cl.836.221.

28. For the reasons above, the applicant does 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 applicant meets prescribed criteria for the visa sought. Specifically, the applicant cannot meet the definition of aged dependent relative on account of his age and is unable to meet the definition of remaining relative on account of his mother who is residing overseas.

    The second named visa applicant

29. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

30. The Tribunal is satisfied that the evidence demonstrates the second named visa applicant is the spouse of the first named visa applicant, however as the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant, Ms Halangingie Kailahi is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.836.321.

31. For these reasons, the decision under review must be affirmed.

    REFERAL TO MINISTER FOR INTERVENTION

32. The applicant has requested that the Tribunal refer the case for consideration by the Minister pursuant to s.351 which gives the minister a discretion to substitute for a decision of the Tribunal another decision more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. For the following reasons, having regard to the particular circumstances arising in the present case, the Tribunal is of the view that there are strong compassionate circumstances such that failure to recognise them would result in an adverse impact upon Mrs Latu Kailahi, an Australian permanent resident.

33. Mrs Latu Kailahi is an 83 year old frail elderly woman with multiple health problems.  She is presently supported in the community through the care provided to her by the first and second named visa applicants.  If she did not have access to the extent of familial support she is currently receiving it is likely she would need to move into a nursing home or similar aged are setting.  This would provide her with less culturally appropriate care and also result in a cost to the Australian community through the increased expense of residentially provided aged care and a reduction in access to residential care of other elderly Australian citizens.

34. In response to a request from the applicant and having considered the ministerial guidelines relating to the Minister's discretionary power under s.351, set out in PAM3 'Minister's guidelines on ministerial powers the Tribunal considers this case should be referred to the Department to be brought to the Minister's attention.

    DECISION

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

    David Barker
    Member