Lu (Migration)

[2021] AATA 4550

Lu (Migration) [2021] AATA 4550 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Liping Lu

CASE NUMBER:  2009568

HOME AFFAIRS REFERENCE(S):          CLF2018/192348

MEMBER:Kira Raif

DATE:19 November 2021

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 836.212 of Schedule 2 to the Regulations; and

·cl 836.213 of Schedule 2 to the Regulations

Statement made on 19 November 2021 at 6:52pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsored by sister, with mother requiring care – sponsor not required to be relative requiring care – decision without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA(1)(b), Schedule 2, cls 836.212, 836.213

CASE
Nguyen v MICMSMA [2020] FCA 1732

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 28 May 2020 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 applied for the visa on 21 August 2018. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant was a carer of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant was represented in relation to the review by her registered migration agent. 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). 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.

   Are the sponsorship requirements met?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored for the visa by her sister, Ms Lu and the person with a medical condition is their mother, Ms Zhang.

7. The delegate refused to grant the visa on the basis that cl.836.221 was not met because it requires, at the time of decision, that the applicant is the carer of an Australian relative, and the delegate found the applicant did not meet the criteria for carer as set out in r.1.15AA. In this case, the delegate found, for the purpose of assessing the application, that the 'resident' is the sponsor Ms Lu. The delegate was satisfied of the sibling relationship between the applicant and sponsor. The delegate found, based on the Carer Visa Assessment Certificate (CVAC), that the person with the medical condition is the mother of the applicant and the sponsor, Ms Zhang. The requirement of r.1.15AA(1)(b) is that the resident, or a member of the family unit of the resident, must be the person with the medical condition. The delegate found that the person with the medical condition is not the resident, and is not a member of the family unit of the resident within the meaning of r.1.12 (which is limited to spouses and children). Therefore, as the delegate had found that the person with the medical condition was not the resident, or a member of the family unit of the resident, the delegate concluded that the applicant did not meet the requirements of r.1.15AA to be the carer of an Australian relative.

8. In the written submission to the Tribunal of 20 July 2021 the representative argues that the delegate had misconstrued the sponsorship and resident requirements, although no basis for that assertion has been offered. The Tribunal notes that the primary decision was made before the Federal Circuit Court handed down its decision in Nguyen v MICMSMA [2020] FCA 1732. In that case, the court found that the sponsorship requirements in cl.836.213 do not expressly require that the Australian relative sponsor, and the Australian relative person with the medical condition requiring care, have to be the same person. Having regard to the reasoning in Nguyen, the Tribunal has formed the view that the finding made in the present case that the ‘resident’ is the sponsor is incorrect.

9. The Tribunal is satisfied that the sponsor is the sister / relative of the applicant and that the sponsor was over the age of 18 when the sponsorship was made. The Tribunal is satisfied the sponsor is an Australian citizen and is usually resident in Australia. Following the principles espoused in Nguyen, this is sufficient for the applicant to meet the requirements of cl.836.212 and cl. 836.213.

10. The Tribunal is mindful that no assessment has been made in relation to other aspects of the definition of ‘carer’ for the purpose of cl. 836.221. As such, the Tribunal has not assessed that criterion and makes no findings on whether the applicant is a carer.

    Conclusion

11. 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

12. 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 836.212 of Schedule 2 to the Regulations; and

    ·cl.836.213 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member