Mohammadi (Migration)

[2023] AATA 2802

Mohammadi (Migration) [2023] AATA 2802 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navid Mohammadi

CASE NUMBER:  2108501

HOME AFFAIRS REFERENCE(S):          CLF2019/7885

MEMBER:Moira Brophy

DATE:22 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 August 2023 at 11:36am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – applicant willing and able to provide care and assistance available from service providers – sponsorship still in force – sponsor departed to country of original and died there – applicant ineligible for other subclasses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15A, Schedule 2, cls 836.111, 836.213, 836.227, 836.312

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 14 June 2021 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 19 February 2019. 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 (Cth) (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 836.227.

3. The delegate refused to grant the visa on the basis that cl 836.213 and cl 836.312 were not met because the applicant had not provided evidence as to whether he was willing and able to provide the care required by the resident and no evidence had been provided as to what assistance was available to the resident from community health services and hospital and nursing services in Australia, or from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

4. The applicant appeared before the Tribunal on 16 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Marjan Dein. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   Background

6. The applicant was born in January 1970 in Iran. He was granted German citizenship on 15 April 1990. His father, Mr Hossein Mohammadi was born in August 1940 and is the sponsor named in the application. His father was an Australian citizen.

7. At the time of application, the applicant stated his mother Maryam Jafari lived in Sydney. She was separated from the sponsor.  The applicant had a sister who was deceased, and two brothers presently living in Iran. His partner was residing in Sweden and his son was residing in Germany. They were listed as non-migrating family members.

8. The applicant entered Australia on 7 April 2006 as the holder of an Electronic Travel Authority (Subclass 976) visa and he departed Australia on 18 April 2006.

9. The applicant entered Australia on 6 August 2012 as the holder of an Electronic Travel Authority (Subclass 976) visa which ceased on 6 November 2012. On 17 June 2013, the applicant applied for a Combined Partner UK-820/BS-801 visa which was refused by the Department on 11 November 2013. On 26 November 2013, the applicant sought review of that decision at the Migration Review Tribunal (MRT). The decision was affirmed by the MRT on 12 March 2015. On 7 April 2015, the applicant departed Australia as the holder of a Bridging visa C.

10. The applicant applied for a Visitor (Subclass 600) visa on 29 September 2015 which was refused by the Department on 20 October 2015 on the basis that he was found to be not a genuine temporary entrant.

11. The applicant entered Australia on 20 October 2015 as the holder of an Electronic Travel Authority (Subclass 601) visa which was cancelled upon entry and he departed Australia on 21 October 2015.

12. The applicant entered Australia on 28 November 2018 as the holder of an Electronic Travel Authority (Subclass 601) visa and departed Australia on 23 February 2019. He last entered Australia on 26 February 2019 as the holder of an Electronic Travel Authority (Subclass 601) visa which ceased on 26 May 2019 and he has been granted a succession of Bridging A (Subclass 010) visas since 6 March 2019.

13. On 19 February 2019, the applicant applied for a Carer (Subclass 836) visa which was refused by the Department on 14 June 2021. On 30 June 2021, the applicant sought review of that decision at the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant seeks 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. The primary criteria include cl 836.213 and cl.836.227.

15. 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. ‘Spouse’ is defined in reg 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.

16. The term ‘Australian relative’ is defined for the purpose of the Part in cl 836.111. The term ‘settled’ is defined in reg 1.03.

17. The Tribunal is satisfied that at the time of application, the applicant was sponsored by an Australian relative who had turned 18 and was an Australian citizen who was settled in Australia and was therefore able to satisfy cl 836.213.

18. Clause 836.227 is a time of decision criterion and provides:

    The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

19. The issue for determination in this review is whether, at the time of this decision, the applicant meets cl 836.227.

20. At the hearing, the applicant conceded that he did not meet cl 836.227 because his father, the sponsor, had departed Australia on 23 May 2023 to go to Iran and he had died there a short time later. The applicant was not able to recall the date of his father’s death but he thought it was 5 June 2023. He has applied for a death certificate but it has not as yet been issued.

21. The Tribunal discussed with the applicant the sponsorship requirements as set out in cl 836.227

22. The Tribunal notes that the Department’s Procedures Advice Manual (PAM3), which guides decision makers, outlines the purpose of sponsorship in the following way.

23. ‘Sponsorship’ is a fundamental concept underpinning Family Migration. The sponsor undertakes to ensure that their family member is supported during their initial settlement in Australia and hence does not become a charge on the wider Australian community.

24. The terms of cl 836.227 appear clear: at the time of decision, the sponsorship mentioned in cl 836.213 must have been approved by the Minister and must still be in force. As was explained to the applicant at the time of hearing, for this subclass, there is no provision for an applicant with an unfinished visa application to change their sponsor. Rather, it seems clear that the death of the sponsor means that the applicant will be unable to meet the time of decision criterion in cl 836.227.

25. From the evidence before it, the Tribunal is satisfied that the sponsor in this case, Mr Hossein Mohammadi, died in Iran on or around 5 June 2023.

26. Therefore, at the time of decision, the applicant is not sponsored as required and does not satisfy cl 836.227.

27. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

28. The Tribunal is required to assess the applicant against all the subclasses in the Class BU class of visa. Accordingly, the Tribunal must also make findings as to whether the applicant satisfies the criteria for an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa.

    Aged Dependent Relative (Subclass 838) visa

29. The evidence before the Tribunal is that the applicant was born on a specific date in January 1970. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991.

30. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purpose of cl 838.212 of Schedule 2 to the Regulations.

    Remaining Relative (Subclass 835) visa

31. The Tribunal notes that for this subclass of visa, at the time of decision, the sponsorship must be approved by the Minister and be in force, although the sponsor need not be the same sponsor as at the time of application: cl 835.227.

32. The Tribunal finds that, at the time of this decision, the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa because the sponsorship of Mr Hossein Mohammadi is not in force and no alternate eligible sponsorship has been provided. As such, the applicant is unable to meet cl 835.227

    DECISION

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

    Moira Brophy
    Member