Madonia (Migration)

[2020] AATA 3842

Madonia (Migration) [2020] AATA 3842 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Giuseppe Madonia

CASE NUMBER:  1833289

HOME AFFAIRS REFERENCE(S):          CLF2018/16700

MEMBER:Steven Griffiths

DATE:15 September 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 15 September 2020 at 2.50pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – close relative – great-aunt not within definition – culturally referred to as aunt – sponsor now deceased – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 836.111, 836.212, 836.213, 836.221

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 25 October 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 July 2018. 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 visa on the basis that cl.836.221 was not met because the applicant and sponsor did not meet, as detailed in Regulation 1.03, the definition of close relative.

4. The applicant was assisted by his registered Migration Agent, Ms. Abby Hamdan, of Hamdan Lawyers.

5. The applicant appeared before the Tribunal on 15 September 2020 to give evidence, respond to questions and present arguments, with oral evidence also from a son of the sponsor.  

6. The registered migration agent did not take part in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs, the Tribunal file, the information provided by the applicant prior the hearing and the oral evidence from the Tribunal hearing.

   ISSUE

9. The issue in the present case is if the applicant and sponsor meet the definition of close relative for consideration of a Carer 836 Visa. 

   BACKGROUND OF THE EVIDENCE

10. Applicant Mr. Madonia was born in Palermo, Italy, in July 1987. His parents, born 1956 & 1967, and twin brother, born 1987, all live in Italy. He came to Australia on 20/2/16 on a Working Holiday Visa, granted 26/8/15 and to cease 2/11/16. He was granted another 417 Visa on 2/11/16 which was to cease 20/4/18. He was on a Bridging Visa A from 21/2/18 with the lodgement of the Carers 836 Visa and has been on a Bridging Visa B from 20/6/18. 

11. Sponsor Mrs. Cufone was born in Italy in 1932. She arrived in Australia in 1954 and became an Australian Citizen by grant in April 1960. Her husband is deceased, and she has 3 sons, all living in Australia, born 1961, 1965 & 1967. She died on 25 August 2019.

    INFORMATION TO THE TRIBUNAL

12. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Sponsor Death Certificate confirming date of death of 25/8/19

    Statement by local pharmacist confirming the applicant attended the pharmacy multiple times between 2017 and 2019 to purchase medicine and goods for the sponsor.

    Support Statement, employer of applicant Kol Shkambi, 10/9/20

    Support Statement, employer of applicant Carmelo Minutolo, 10/9/20

    Whether the applicant has claimed to be the ‘carer’

13. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of his Aunt.

14. The Tribunal accepts that the applicant claimed, at the time of application, to be the carer of the sponsor, noting the Refusal Decision of the Delegate to the Minister, made on 25/10/18, stated that as the applicant had not demonstrated he was a close relative, as defined, of the sponsor, that he did not meet the definition of carer  and that no further assessment of any of the primary criteria relevant to a Carer visa had been made.

15. The Tribunal accepts the documented evidence, provided by the applicant on 23/7/18, inclusive of a family tree, which notes the sponsor is the sister of the grandmother of the applicant, with the sponsor therefor the great aunt of the applicant.

16. The Tribunal notes the oral evidence of the applicant that in his culture family relationships decree that the term aunt and uncle is used to identify relatives from across families and that to him the sponsor was his aunt, even though she was the sister of his grandmother. The Tribunal acknowledged the evidence, while affirming to the applicant the requirement that his review application must be considered on the legislation of Australia at the time the visa application was lodged.

17. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

18. For the purposes of the Carer visa, the requirement is for the applicant to be a close relative (as defined in r.1.03 of the Regulations) being the spouse or de facto partner of the person, or a child, parent or sister of the person, or a step-child, step-brother or step-sister of the person.

19. For the purposes of the Carer Visa, the requirement extends to the applicant to be a (as defined in r.1.03 of the Regulations) grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew of the person.

20. The Tribunal accepts the documented and oral evidence of the applicant and son of the sponsor of the sponsors death on 25 August 2019.

21. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and does not satisfy the requirements of cl.836.212.

    Are the sponsorship requirements met?

22. 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 r.1.03 of the Regulations. ‘Spouse’ is defined in r.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).

23. The Tribunal accepts that the sponsor was above the age of 18 at the time of the visa application, having been born in 1932.

24. The Tribunal determines, from the documented evidence provided by the applicant on 23/7/18, the sponsor to be the great aunt of the applicant and does not meet the requirement of being a close relative, as defined, of the applicant.  

25. Therefore, at the time of application, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.213.

26. 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 as the applicant is not a close relative, as defined, of the sponsor.

    DECISION

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

    Steven Griffiths
    Member