Mullins (Migration)

[2021] AATA 647

Mullins (Migration) [2021] AATA 647 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leonard George Antony Mullins

CASE NUMBER:  1830873

HOME AFFAIRS REFERENCE(S):          CLF2017/48301

MEMBER:David Crawshay

DATE:10 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2021 at 3:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 536 (Carer) – assistance provided by other relatives or obtained from relevant service providers – other relatives have own families – sponsor has since died and sponsorship no longer in force – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 5 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 11 July 2017. 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.836.227, which relates to sponsorship of the applicant by an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate found that the applicant was not the carer of his aunt, who was the Australian relative and sponsor, at the time of decision. The delegate was not satisfied that the assistance required by the Australian relative cannot reasonably be provided by the relevant relatives or cannot reasonably be obtained from the relevant services in Australia. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. The applicant appeared before the Tribunal on 10 March 2021 to give evidence and present arguments.

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

   EVIDENCE AT HEARING

6. The Tribunal began by putting to the applicant its preliminary view that, as the applicant’s aunt (who was the sponsor and “Australian relative”) had died in March 2020, there is now no sponsor and the sponsorship is no longer in force. The applicant agreed with this view.

7. The applicant told the Tribunal that he did not consider the delegate’s decision to be fair. He pointed out that all of his relatives had claimed they were unable to care for the Australian relative. He said that there was no intent on their part to care for her so the option fell to him. He said that he cared for the Australian relative and she felt this was the best option for her. He said that the Department considered that other relatives could care for the Australian relative in combination, but he said that this was not what she required. He said that her requirement was for full-time care and especially at night. He said that his other relatives all had their own families to look after.

8. Regarding the issue of relevant services within Australia, the applicant told the Tribunal that the Australian relative was not very comfortable with being put into a facility, and thought that her condition would decline if she were to do so. He said that she had seen other people including friends “go down” in that way, so she was sceptical about going into such a facility. He said that the Australian relative was comfortable in her own place. He said that she had tried calling some facilities but did not get any favourable response.

9. The applicant said that he felt the delegate’s decision was a way to put his claim aside, and considered that the delegate was being rigid in applying the rules.

10. The Tribunal informed the applicant that it felt there was not a lot it could do in his situation. It told him that it noted his submissions as to the unfairness of the decision made by the delegate. It pointed out that the course of action after a such visa refusal included merits review of which he had availed himself. It told him that a Tribunal in such a situation would look at his matter with fresh eyes, with the benefit of new evidence and with the chance to hear the applicant in person. It told him that, in these circumstances, it was unfortunate that the Australian relative had died in the intervening period, but reiterated its preliminary view that the sponsorship was no longer in force and he would not be able to satisfy cl.836.227.

11. The applicant told the Tribunal that it had been an unfortunate situation for him in that he had put in so much time without receiving any benefits from the Australian government. He said that his purpose had only been to do good and that he had adjusted to the Australian lifestyle and was having difficulties readjusting to the lifestyle in India. He said that his mother had passed away in 2018 when he was over in Australia and that he had been unable to travel to Ireland where she had been living for the funeral.

12. For completeness, the Tribunal informed the applicant of the option of applying for ministerial intervention. He told it that he had spoken to someone from the Department who told him that he could not apply while the matter was before the Tribunal. He said that he may wait until the matter is over before applying.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the sponsorship of the applicant by the Australian relative is still in force. The Tribunal acknowledges that this is a different issue from that contained within the delegate’s decision but notes that it is not limited to the circumstances in front of the delegate at the time of the delegate’s decision. It also considers that the applicant had been on notice of this issue at hearing if not prior.

    Are the sponsorship requirements met?

14. 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. For these purposes, “relative”, “Australian permanent resident” and “eligible New Zealand citizen” are defined in r.1.03 of the Regulations.

15. At the time of application, the applicant was sponsored by Ms Audrey Antoinette Homan, the Australian relative, whom he claims to be his aunt. The Tribunal is satisfied that the Australian relative was a relative of the applicant, had turned 18, was a settled Australian citizen and was usually resident in Australia at the time of application.

16. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfied cl.836.213.

17. 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.

18. On 2 May 2020, the applicant sent an email to the Tribunal to inform it that the Australian relative had died. His email attached a copy of a death certificate dated 27 April 2020 in respect of the Australian relative that stated she had died on 12 March 2020, as well as a letter of support from neighbours of the applicant dated 28 March 2020.

19. The Tribunal notes the applicant’s testimony at hearing, which was honest and straightforward and was in similar terms to evidence given by him in communications to the Tribunal, including on 2 May 2020 and 16 February 2021. It considers that the applicant has conducted himself with dignity during the review process, including at hearing. It acknowledges, as it did at hearing, the unfortunate situation he finds himself in.

20. However, and in spite of this, the Tribunal considers that the terms of the legislation are clear on this point. As the Australian relative has died, the sponsorship of the applicant is no longer in force and the applicant does not meet cl.836.227 which is a requirement for the visa.

21. 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. Specifically, the fact of the death of the Australian relative means that the applicant is unable to satisfy the requirements of cl.835.227 and cl.838.227 which also relate to whether a sponsorship by an Australian relative is still in force.

    DECISION

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

    David Crawshay
    Member