Prakash (Migration)

[2020] AATA 3865

Prakash (Migration) [2020] AATA 3865 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Padma Prakash

CASE NUMBER:  1731380

HOME AFFAIRS REFERENCE(S):          CLF2017/10609

MEMBER:Kira Raif

DATE:16 September 2020

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 16 September 2020 at 1:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – person to be cared for must be sponsor or sponsor’s partner or child – mother to be cared for, but sister sponsored application – mother not partner or child of sister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 836.212, 836.213, 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 Immigration and Border Protection on 27 November 2017 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 19 January 2017. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 16 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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.

6. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations.

   Whether the applicant is a carer

7. The applicant stated on the application form that she is a carer for her mother Arokiamary Muthu and her sister Lourdes Chandra Shome. The applicant was sponsored by her sister Ms Shome. The Tribunal is of the view that if the applicant claims to be a carer of a person for the purpose of cl. 836.212, it is that person who must be the sponsor for the purpose 836.213. Thus, cl. 836.212 requires that the applicant claims to be a carer of a relative and cl. 836.213 refers to ‘the’ relative. In the Tribunal’s view, it must be the same relative. It must also be the same person (‘the resident’) referred to in r.1.15AA. As it is Ms Shome who sponsored the applicant, the Tribunal finds that the applicant claimed to be a carer of Ms Shome when making the application. The Tribunal finds that Ms Shome is the ‘resident’ for the purpose of r.1.15AA(1)(b).

8. The person in need of assistance is Ms Arokiamary Muthu and the Carer Certificate relates to Ms Muthu. The delegate found that since Ms Muthu was not a spouse or a dependent child of the sponsor, she was unable to meet the definition of ‘member of the family unit’ as required by r. 1.15AA(1)(b). Subparagraph 1.15AA(1)(b)(i) relevantly provides that a resident or a member of the family unit of the resident has a medical condition. In this case, the person in need of care is the mother of the resident. However, members of the family unit, as defined in r. 1.12(2), are limited to partners and children. While other paragraphs of that definition have a broader list of relatives, these are not relevant to the present visa category.

9. The applicant and the sponsor explained to the Tribunal that the did not obtain professional advice when making the application and believed that it would be sufficient for the sister to sponsor the applicant to provide help in caring for their mother. The Tribunal accepts that evidence. However, as Ms Muthu is not a spouse or child of the sponsor, she cannot meet the definition in r. 1.12 and is not a member of the family unit of Ms Shome. The Tribunal is not satisfied the applicant meets r.1.15AA(1)(b). She is not a carer and does not meet cl. 836.221.

10. For the sake of completeness, the Tribunal finds that if the applicant claimed to be a carer of her mother at the time of the application, the Tribunal would find that  cl. 836.212 and 836.213 were not met because as noted above, the Tribunal is of the view that the applicant must be sponsored by the same person with respect to whom she claimed to be a carer. In this case, if the applicant claimed to be a carer of her mother but was sponsored by her sister, the Tribunal does not consider that these provisions would be met.

11. The applicant was under the age of 65 when the application was made. She was not old enough to be granted an aged pension under the Social Security Act. She does not meet the requirements for the grant of an aged dependent relative visa. The applicant stated on the application form that her sibling and adult children were resident in India. The Tribunal finds they are ‘near relatives’. The Tribunal finds that the applicant has near relatives who are not resident in Australia and she does not meet the definition of the term ‘near relative’. She is not entitled to the grant of that visa.

    Conclusion

12. 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

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

    Kira Raif
    Senior Member