Pfaerhoever (Migration)

[2018] AATA 1017

Pfaerhoever (Migration) [2018] AATA 1017 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sophie Catherine Vanessa Pfaerhoever

CASE NUMBER:  1619604

DIBP REFERENCE(S):  CLF2013/26826

MEMBER:Kira Raif

DATE:8 March 2018

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 08 March 2018 at 11:11am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Relative of an Australian resident – Brother-in-law of resident – Ministerial intervention request

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 1 item 1123B; Schedule 2 cl 826.212, 836.212, 836.213, 836.221, rr 1.03, 1.12, 1.15

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 Immigration on 16 November 2016 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 is a national of France, born in 1970. She made the application on 7 February 2013. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate found the applicant was not a relative of the resident. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from other witnesses nominated by the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. Relevantly to this matter, the primary criteria to be met include cl. 836.212 and cl.836.221. Clause 826.212 requires the applicant to claim to be a carer of an Australian relative. Clause 836.221 requires the applicant to be the carer of that person. The term ‘carer’ is defined in r. 1.15AA. The term ‘member of the family unit’ is defined in r. 1.12.

   Is the applicant a carer of an Australian relative?

6. When making the application, the applicant stated on the application form 47OF that she was the carer of Mr James Behrendorff. Mr Behrendorff is the spouse of the applicant’s sister, that is, the brother in law of the applicant and is not a ‘relative’ within the meaning of r. 1.03. The Tribunal finds that the applicant did not claim to be a carer of an Australian relative, for the purpose of cl. 836.212 because the person she claimed to be a carer of was not her relative. The Tribunal is not satisfied the applicant meets cl. 836.212.

7. The applicant explained to the Tribunal that it was Mr Behrendorff who was in need of care and also because he had income, they thought it would be better to put his name on the form. The Tribunal accepts that evidence.

8. The applicant provided to the Tribunal a statement from Mr Behrendorff concerning his medical condition and the support provided by the applicant. There are several statements in support of the application and medical evidence. The Tribunal acknowledges that evidence and accepts that the sponsor is in need of care. The Tribunal is prepared to accept, for the purpose of this application, that such care is provided, at least in part, by the applicant. However, the issue here is not the sponsor’s need for assistance, nor the applicant’s willingness to provide such assistance. The issue here is the relationship between the applicant and the sponsor. The Tribunal is not satisfied that the sponsor is a relative of the applicant.

9. The applicant also refers to another Tribunal decision 1407093 [2014] MRTA 1925, however, the Tribunal notes that in that case, the applicant was sponsored by a son and a relative, so the circumstances of that case were quite different to the issues that arise in the present review.

10. In oral evidence the parties claim that the sponsorship can be done by a relative or a spouse of the relative and that is the information on the Department’s website. The Tribunal accepts that this is the case, but there are other provisions that are relevant here, including cl. 836.212 and the definition of Carer in r. 1.15AA(1)(a) which requires the applicant to be a relative of the resident. The sponsorship provisions in cl. 836.213, which allow sponsorship by a spouse of a relative, cannot be considered in isolation. 

11. The parties submit that they spoke to a migration consultant and relied on the information on the Department’s website and they and received wrong advice on which they acted. The Tribunal accepts that the mistake was unintentional but the Tribunal has no discretion with respect to the matter. Having found that the applicant does not meet cl. 836.212, the Tribunal must affirm the decision under review.

12. The applicant is not old enough to be granted the aged pension and she is not an Aged Dependent Relative of an Australian relative. The applicant stated on the form that she has several siblings residing in France and the Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.

13. Having regard to the applicant’s circumstances, in particular the apparent need for a carer by the sponsor, the genuine mistake made by the unrepresented applicant in completing the forms and her reliance on advice which she believed to be correct, the Tribunal has formed the view that there are compassionate circumstances in this case. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    Conclusion

14. 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

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

    Kira Raif
    Senior Member