Panditharathna (Migration)

[2022] AATA 1389

Panditharathna (Migration) [2022] AATA 1389 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sujeewa Sampath Panditharathna

REPRESENTATIVE:  Mrs Madhu Warnakulasuriya (MARN: 1068979)

CASE NUMBER:  1837664

HOME AFFAIRS REFERENCE(S):          CLF2018/360327

MEMBER:M. Edgoose

DATE:10 May 2022

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 May 2022 at 10:23am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – relative requiring care held bridging visa at time of application – substantive visa granted later – not ‘Australian relative’ as defined at time of application – applicant departed Australia, bridging visa ceased and no visa to return – 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

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 19 December 2018 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 14 November 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 (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 836.212.

3. The delegate refused to grant the visa on the basis that cl 836.212 was not met.

4. The applicant appeared before the Tribunal on 10 May 2022 to give evidence and present arguments. The Tribunal notes that Dana Manel Senevirathne, the sponsor and Mr Sanjeewa Panitharathine the brother of the applicant also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

5. The applicant was represented in relation to the review however the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant has claimed to be the ‘carer’

7. 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 the applicant’s mother.

8. 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 reg 1.03 of the Regulations.

9. At the time the visa application was lodged the person requiring care, Dana Manel Senevirathne was the holder of a Bridging Visa B and was not the holder of a substantive permanent resident visa. Therefore, Dana Manel Senevirathne did not meet the definition of Australian relative at time of application.

10. On 10 December 2021, Dana Manel Senevirathne was granted a Subclass 804 Aged Parent visa that is valid until 10 December 2026.

11. Although Dana Manel Senevirathne maybe have been granted a Subclass 804 Aged Parent visa the Tribunal is not satisfied that the applicant in this matter was a carer of an Australian relative at time of application on 14 November 2018.

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

13. At hearing the applicant confirmed that he departed Australia on 16 January 2020 on a Bridging Visa B.  The Bridging Visa B ceased on 8 May 2020. Therefore, the applicant does not have a visa to return to Australia on at time of this decision.

14. At hearing the applicant confirmed that the sponsor did not hold the relevant visa at time of application.

15. 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.

    DECISION

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

    M. Edgoose
    Member