Poculan (Migration)

[2023] AATA 4033

Poculan (Migration) [2023] AATA 4033 (24 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Ian V Elic Poculan

REPRESENTATIVE:  Mr Jesus Icao (MARN: 9367993)

CASE NUMBER:  2104173

HOME AFFAIRS REFERENCE(S):          CLF2016/33707; and CLF2020/80980

MEMBER:Deputy President Justin Owen

DATE:24 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.212 of Schedule 2 to the Regulations; and

·cl 836.213 of Schedule 2 to the Regulations.

Statement made on 24 November 2023 at 10:10am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of the family unit – sponsored by the Australian relative – usually resident in the family’s household – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.213, 836.221; rr 1.03, 1.12, 1.15

CASES

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1732

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 23 March 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 2 June 2016. 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 836.213.

3. The delegate refused to grant the visa on the basis that cl 836.221 was purportedly not met.  The delegate reached this conclusion as they determined that both the applicant and the person with a medical condition (PWMC), Ms Riza Mason did not reside at the same address as the sponsor Ms Ooqueah Nikita Poculan Martz, and therefore the PWMC was not a member of the family unit of the sponsor.  Subsequently, the delegate found the requirements of reg 1.12(1)(e)(ii) were not met.  As the delegate found the sponsor did not meet reg 1.12(1)(e)(ii), the delegate found the applicant did not satisfy cl 836.221

4. The applicant was represented in relation to the review.

5. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the sponsorship requirements for the visa application are met.  

   Are the sponsorship requirements met?

8. 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).

9. In the circumstances of this case, the sponsor is Ms Ooqueah Nikita Poculan Martz, the sister of the applicant. The PWMC is the applicant’s mother, Ms Riza Mason who is an Australian citizen requiring continuing and substantial assistance.

10. As explained in the forms and statutory declarations the applicant submitted as part of his application, the sponsor lives with her husband and two children. The PWMC however was living at a nearby separate address in the same suburb of Wallsend where it was submitted, she lives with the applicant.  

11. On the basis of this information, the delegate found the applicant did not meet cl 836.213 as they were not satisfied the sponsor, the applicant’s sister, was not usually resident in the Australian resident mother’s (the PWMC) household. This was based on the finding that the definition of a Member of the Family Unit as defined by reg 1.12(1)(e)(ii) being a person that was “usually resident in the family’s household”.

12. The applicant in their submissions to the Tribunal has submitted that the delegate in fact erred in finding that the sponsor did not satisfy the requirements of reg 1.12(1)(e)(ii), and subsequently failed to meet cl 836.221 for the grant of the visa. 

13. The applicant has drawn the Tribunal’s attention to the Federal Court’s decision of Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1732 (Nguyen) where the Federal Court found there is no express requirement in cl 836.2 that the sponsor Australian relative (in this case, the applicant’s sister) in cl 836.213 and the care recipient Australian relative (in this case, the applicant’s mother) in cl 836.212 have to be the same person.  

14. The currently constituted Tribunal is particularly familiar with the case, having heard the matter in 2021 when it was remitted from the Federal Court.  

15. The Federal Court found in Nguyen that the definite article "the" in cl 836.213 refers to the Australian relative as defined in cl 836.111, not to the "an Australian relative" referred to in cl 836.212. The word “resident” in reg 1.15AA does not refer to the sponsor of the applicant carer. The definitions in regs 1.15AA and 1.12 therefore do not apply to prescribe criteria with respect to the sponsor of an applicant carer.

16. The Federal Court found that it therefore followed that the sponsor met the criteria for sponsorship of the appellant as prescribed in cl 836.213 and the related definition of ‘Australian relative’ in cl 836.111. These were the only criteria for sponsorship that the applicant as the appellant had to meet.

17. On the basis of the Federal Court’s decision, the ‘Australian relative’ in cls 836.212 and 836.213 does not need to be the same person. It is appeal level authority that the sponsor for a Subclass 836 Carer visa needs to be the visa applicant’s Australian relative (or their relative’s partner) but does not need to be the person claimed as the Australian relative requiring care: Nguyen.

18. As His Honour has pointed out in Nguyen at 43:

    I do not consider subreg (1)(b)(i) of the definition of the expression “carer” in reg 1.15AA, or subreg (1)(e)(ii) of the definition of “member of the family unit” in reg 1.12, had any application. There was, therefore, no requirement that Ms Huyen (the sponsor/resident) had to be “usually resident” in the same household as her sister, Ms Ve, or as her mother, Ms Hoa. The only residency criteria for her sponsorship of Ms Ve were those prescribed by cl 836.213.

19. The only requirements for the applicant to be sponsored, as prescribed in cl 836.213, are that that the sponsorship must be:

    (a)by the Australian relative, if the Australian relative:

    (i)has turned 18; and

    (ii)is a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen; and

    (iii)is usually resident in Australia.

20. The Tribunal has noted the copies of the sponsor’s Australian passport and her NSW Drivers Licence that have been provided by the applicant.  On the facts before the Tribunal, the sponsor of the applicant, the applicant’s sister, is over 18 years of age; is a settled Australian citizen and is usually resident in Australia.  The applicant therefore meets cl 836.213. 

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

22. At the time of application, the applicant claimed to be the carer of an Australian relative, being her mother.  As per Nguyen, there is no requirement that the sponsor and the person the applicant is caring for are the same person.  On the evidence the Tribunal is satisfied that the applicant claimed to be the carer of his mother, the PWMC, at the time of application.  The applicant therefore also meets cl 836.212. 

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

24. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.212 of Schedule 2 to the Regulations; and

    ·cl 836.213 of Schedule 2 to the Regulations.

    Justin Owen
    Deputy President