Manz (Migration)

[2020] AATA 382

Manz (Migration) [2020] AATA 382 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jacqueline Ann Manz
Mr Willi Peter Manz

CASE NUMBER:  1808606

HOME AFFAIRS REFERENCE(S):          CLF2015/25435

MEMBER:Christine Kannis

DATE:21 February 2020

PLACE OF DECISION:  Perth     

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

Statement made on 21 February 2020 at 6:09am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor deceased – applicants have no home or assets in any other country – no  provision to grant visa when no sponsorship in place – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 836.213, 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 Home Affairs on 13 March 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 28 April 2015. The application includes her husband (secondary applicant). 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 include cl.836.227.

3. The delegate refused to grant the visas on the basis that cl.836.227 was not met because the Australian relative who had sponsored the applicant is now deceased.

4. The applicants appeared before the Tribunal on 17 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an Auslan interpreter (by video).

5. Prior to the hearing the Tribunal received a written submission from the applicants’ representative and several character references from friends and neighbours attesting to the good characters of the applicants.

6. The applicants were represented in relation to the review by Mr John Hegarty.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The Tribunal discussed with the review applicant the requirements in relation to sponsorship arrangements.

10. At the time of application the applicant was sponsored by her father, the Australian relative.

11. On 12 March 2018 the Department was notified that the sponsor had passed away on 29 July 2017. A Death Certificate has been provided.

12. The applicant told the Tribunal that she has loved Australia since she first visited as a 15 year old. She said loves it here and wants to stay.

13. The secondary applicant told the Tribunal that he and the applicant have no home in any other country. He said the German government told them to come to Australia. They disposed of all their assets in Germany and it would be a waste of time to return there.

14. The applicants said that at the time the sponsor passed away they were not told that they should apply for another visa. They asked the Tribunal questions regarding their migration pathway options and in particular asked about a working visa. The Tribunal advised, however, that it was not in a position to provide migration advice and that they should obtain such advice from a migration specialist or alternatively obtain information from the Department.

15. Mr Hegarty submitted that the applicants’ former migration agent advised them that there was a five year waiting period for a Carer visa and in those circumstances the agent should have assisted them to apply for another class of visa. He said they had not engaged a migration agent for the hearing because of the expense and likely unfavourable outcome.

16. Mr Hegarty asked the Tribunal to consider humanitarian grounds and said the applicants are well established in Australia and they have a dog. He said they have no home to return to in Germany.

17. The Tribunal informed Mr Hegarty that there is provision in the legislation for the Minister to intervene if the Minister thinks that it is in the public interest to do so, and that the Minister may substitute for a decision of the Tribunal 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. Mr Hegarty did not ask the Tribunal to refer the matter for possible Ministerial intervention and on the evidence the Tribunal does not consider that there is any basis to do so. The Tribunal notes that it remains open to the applicants to make a relevant application for Ministerial consideration through the Department directly.

18. The Tribunal accepts the evidence of the applicants’ friends and neighbours contained in the character references provided. The Tribunal accepts that the applicants are well liked and valued members of their community.

19. The Tribunal is sympathetic to the applicants in all the circumstances. However, as discussed at hearing, there is no provision or discretion to grant a Carer visa where there is no sponsorship in place.

20. The tribunal finds the Australian relative sponsor is now deceased. 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 sponsor.

21. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 836 visa.

22. In respect of the other visa subclasses there is no material which would permit a finding that the applicants meet prescribed criteria for the visa sought.  There is no evidence before the Tribunal that the applicants meet the criteria for an Aged Dependant Relative or a Remaining Relative or any other subclass.

    DECISION

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

    Christine Kannis
    Member