Montesclaros (Migration) - [2025] ARTA 2238

MONTESCLAROS (MIGRATION) [2025] ARTA 2238 (24 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Randolph Montesclaros
Visa Applicant:  Miss Rose Jean Montesclaros
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2117799

Tribunal:General Member J Owen
Place:Sydney
Date: 24 July 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (class BO) visa.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 24 July 2025 at 2.57pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – member of the family unit – sponsor is not the Australian relative receiving the care – remaining relative criteria – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 221; rr 1.12, 1.15
Social Security Act 1991 (Cth)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 September 2021 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) Subclass 116 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a female national of The Philippines, born 17 September 1970. The visa applicant applied for the visa on 4 June 2019. The delegate refused to grant the visa on the basis that cl 116.211 was not met because the delegate was not satisfied the visa applicant was a carer of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 4 July 2025 to give evidence and present arguments. The review applicant is the brother of the visa applicant.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
Relevant Law
At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
Clause 116.211 requires that at the time of application, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg. 1.15AA of the Regulations. Reg. 1.15AA(1)(b) relevantly requires that a Carer certificate states that the Australian relative (resident) or a member of the family unit has a medical condition.
The term ‘member of the family unit’ is defined in reg. 1.12 and includes a spouse of de facto partner of the family head, a child or step-child and a dependent child of a child.
Is the applicant a carer of an Australian relative?
The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was sponsored by her brother, Mr Randolph Montesclaros, who is an Australian citizen. The review applicant at the Tribunal’s hearing confirmed that the person with the condition, and the person in relation to whom the Carer certificate was issued, is their mother Mrs Lena Montesclaros. The delegate noted that Mrs Lena Montesclaros was not a spouse, de facto or a child of the family head, and was not a member of the family unit of the sponsor and review applicant, Mr Randolph Montesclaros.
The review applicant discussed the needs of Mrs Lena Montesclaros at the Tribunal’s hearing with the review applicant. Mrs Montesclaros, an Australian permanent resident, is currently 85 years of age and residing at a nursing home. Her CVAC has an impairment rating of 50.
The review applicant discussed the background to the Carer visa application at the Tribunal’s hearing. The review applicant stated it had been a family decision that he take on the role of sponsor of the visa application as he would be covering all the costs for the visa applicant. The review applicant explained that his elderly mother did not have the means to financially support his sister as the visa applicant, and subsequently he had taken on the role of sponsor.
The Tribunal has considered the evidence before it.
The Tribunal notes in a subclass 116 visa, the visa applicant is required to meet the requirements of both cl 116.211 and cl 116.212 at the time of application:
116.21--Criteria to be satisfied at time of application
116.211
(1)  The applicant claims to be a carer of an Australian relative of the applicant.
(2)  In this clause, Australian relative , in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
116.212
The applicant is sponsored:
(a)  by the Australian relative mentioned in clause 116.211 if that relative has turned 18; or
(b)  by the spouse or de facto partner of the Australian relative if:
(i)  the spouse or de facto partner cohabits with the relative; and
(ii)  the spouse or de facto partner is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen; and
(iii)  the spouse or de facto partner has turned 18.
116.22--Criteria to be satisfied at time of decision
116.221
The applicant is a carer of the Australian relative mentioned in clause 116.211.
In this case for the purposes of cl 116.211, the visa applicant claims to be a carer of her mother Mrs Lena Montesclaros, who the Tribunal accepts is an Australian permanent resident.
Cl 116.212 however clearly and unequivocally states that the visa applicant must be sponsored by the Australian relative mentioned in cl 116.211 (emphasis added) if that relative has turned 18, or by their spouse or de facto partner of the Australian relative.
Cl 116.212 therefore relevantly requires that the visa applicant must be sponsored by the (italics added) Australian relative mentioned in cl 116.211. This makes clear that in a subclass 116 visa, the sponsor and the Australian relative (the person receiving the care) are intended to be the same person. The Australian relative in this case mentioned in cl 116.211 is the visa applicant’s mother Mrs Lena Montesclaros. The visa applicant however was not sponsored by her mother, rather she was sponsored by her brother Mr Randolph Montesclaros who is the review applicant.
Therefore, the visa applicant does not meet the requirements of cl 116.211 and cl 116.212 at the time of application.
The Tribunal finds that the visa applicant was sponsored by her brother, the review applicant Mr Randolph Montesclaros. The Tribunal finds that the Australian relative (resident) is the visa applicant’s brother Mr Randolph Montesclaros. The Carer certificate that accompanied the visa applicant’s application however relates to Mrs Lena Montesclaros, who is the mother of the visa applicant and the review applicant/sponsor.
As the person in need of care is not the resident, she must be a member of the family unit of the resident. Reg. 1.12 defines the term ‘member of the family unit’ and that definition does not include a parent. As Mrs Lena Montesclaros is the parent of the sponsor and review applicant Mr Randolph Montesclaros, she does not meet the definition of ‘member of the family unit’ of the resident.
The Tribunal subsequently is not satisfied that it is the Australian relative (resident) or a member of the family unit that has the relevant medical certificate to which the certificate relates. The Tribunal therefore is not satisfied the visa applicant meets the requirements of reg. 1.15AA(1)(b). The visa applicant is not a ‘carer’ as defined in reg. 1.15AA for the purpose of cl. 116.211 and cl 116.221. The Tribunal is not satisfied the visa applicant meets these provisions.
For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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.
The evidence before the Tribunal is that the visa applicant was born on 17 September 1970. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa.
To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia. In oral evidence to the Tribunal, the review applicant confirmed that he and the visa applicant have a brother residing in The Philippines. The visa applicant’s application form declares her brother Ronald resides in The Philippines. The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (class BO) visa.
Date(s) of hearing: 4 July 2025
Representative for the Applicant: N/A