Schmidt Aravena (Migration)

Schmidt Aravena (Migration) [2022] AATA 1792 (11 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Jacqueline Zoila del Pilar Schmidt Aravena
CASE NUMBER:  1909227
HOME AFFAIRS REFERENCE(S):          CLF2018/46778
MEMBER:Michael Ison
DATE:11 March 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 11 March 2022 at 7:39pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 835 (Remaining Relative visa) – applicant had a brother, half-brother and two half-sisters still living in Chile – r.1.15(1)(c) is not met– Ministerial intervention declined – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,351
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 835.212, 835.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 April 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is Miss Jacqueline Zoila del Pilar Schmidt Aravena who is a 57-year-old national of Chile. Miss Schmidt Aravena is referred to as the applicant in these reasons for decision.
The applicant was born with cerebral palsy and has been assessed by a medical officer of the Commonwealth in a March 2017 report provided to the Tribunal on behalf of the applicant as follows:
… the applicant has moderately severe functional and cognitive impairment due to cerebral palsy of unknown cause and is dependent on assistance with most activities of daily living.
The applicant first arrived in Australia on 8 June 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 3 June 2018.
On 7 May 2018 the applicant applied for an Other Family (Class BU) Remaining Relative (Subclass 835) visa while in Australia on the basis that the applicant is a remaining relative of her sponsor Ms Marcela Ines del Carmen Schmidt Aravena, who is the applicant’s sister. It is the refusal to grant the applicant that Other Family visa that is the subject of this review.
Ms Marcela Schmidt Aravena is a 60-year-old national of Australia, having acquired Australian citizenship in September 2014. Ms Schmidt Aravena is referred to as the sponsor in these reasons for decision.
At the time of applying for her Other Family visa the applicant was subsequently granted a Bridging A (Subclass 010) visa on 8 May 2018, which the applicant continues to hold at the time of this decision. The applicant’s Bridging A visa has visa condition 8101 (No Work) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached.
The visa application
The applicant applied for the visa on 7 May 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative), Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 835.212 which provides:
835.212 The applicant is a remaining relative of an Australian relative.
The primary decision of a delegate of the Minister
The sponsor provided the Tribunal with a copy of the primary decision.
The delegate refused to grant the visa on 4 May 2019 on the basis that cl 835.212 was not met because the delegate found the applicant had a brother, half-brother and two half-sisters still living in Chile and therefore the applicant is not a remaining relative of the sponsor.
Tribunal hearing
The sponsor provided translated and certified personal identification information confirming she is the biological sister of the applicant and their parents are both deceased. The sponsor told the Tribunal she does not have formal guardianship or similar care orders in place for the applicant, but is the applicant’s primary carer and provides for the applicant’s daily and longer term needs including food, accommodation, clothing and financial support. The Tribunal accepts this evidence.
The sponsor informed the Tribunal that as a result of the applicant being born with cerebral palsy the applicant has an intellectual disability and limited communication skills. The sponsor described the applicant, her younger sister, and the effects being born with cerebral palsy has had on the applicant in the following terms in a submission received by the Tribunal on 3 May 2019:
My sister Jacqueline was born with cerebral palsy (moderate), with an intellectual coefficient of a 7 year old girl. Jacqueline is a clever girl who always smiles and wants to know everything that is going on around her. She does not speak Spanish clearly but tries her best to communicate sometimes through using her eyes and body language so we understand what she wants. Really I am the only one that understands her when she speaks. Jacqueline enjoys watching TV and does other activities like loom weaving, doing jigsaw puzzles, painting, going outdoors and shopping with me and my family. She is very tidy and organizes her room and helps with folding clothes. Jacqueline does need assistance with showering and preparing meals, she eats by herself. Jacqueline uses a wheelchair for transferring herself to the toilet, seats and her bed. She gets around the house and her room using her wheelchair. She does walk but only short distances with assistance. Jacqueline’s health in general is good and she does not have any special medical treatment for her condition.
The applicant appeared before the Tribunal on 16 November 2021 by video with the sponsor and her family from their family home. The sponsor indicated to the Tribunal after a short period of time that the applicant was becoming agitated appearing by video and asked that she be excused from having to sit through the hearing. The Tribunal agreed to this request.
The Tribunal received oral evidence from the sponsor, the sponsor’s partner Mr James Hamilton-Byrne, the sponsor’s son and applicant’s nephew Mr Antonio Leiva Schmidt and from the sponsor’s daughter and the applicant’s niece Ms Katherine Leiva Schmidt, who each gave evidence by video. The Tribunal also received oral evidence from Mrs Paulina Galarce Perez, a friend from Chile who continues to live in Chile, who gave evidence by telephone.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages when Mrs Galarce Perez gave evidence. The sponsor and remaining witnesses gave their evidence in English.
The Tribunal hearing was held during the COVID-19 global pandemic when extensive restrictions on the movement and gathering of people were in place in Victoria and also other States. The Tribunal determined it was reasonable to hold the hearing by video and telephone, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video and telephone. The Tribunal was satisfied the sponsor, witnesses, interpreter (during Ms Galarce Perez’s evidence) and the Tribunal could satisfactorily see, hear or just hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to have evidence and arguments presented to the Tribunal on her behalf.
At the commencement of the Tribunal hearing, the Tribunal explained to the sponsor and her family the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.
Pre-hearing submissions
The sponsor provided the Tribunal with extensive submissions prior to the Tribunal hearing. These submissions and the documents attached to them are set out in Attachment 2 to these reasons or decision.
The Tribunal also engaged in other correspondence with the sponsor on behalf of the applicant in relation to administrative matters associated with this review.
Post-hearing submissions
On 13 December 2021, after the Tribunal hearing, the Tribunal received a one-page submission, from the sponsor which requested – in the event of the Tribunal making a decision that is unfavourable to the applicant – that the Tribunal consider referring the applicant’s circumstances to the Minister for the Minister to consider exercising the Minister’s power under s 351 of the Act to substitute the Tribunal’s decision with a decision that is more favourable to the applicant.
Tribunal’s decision
The Tribunal has had regard to the oral evidence of the sponsor and witnesses, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Remaining Relative visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of the sponsor, who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).
In this case Ms Marcela Schmidt Aravena is the applicant’s sister and acquired Australian citizenship on 6 September 2014. A copy of the sponsor’s certificate of Australian Citizenship is on the Department file. Therefore, the sponsor is an Australian relative for these purposes.
Is the applicant a remaining relative of an Australian relative?
To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl 835.212 and cl 835.221. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision.
Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.
The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.
The requirement to be a parent or sibling: reg 1.15(1)(a)
As the Australian relative in this case is the sister of the applicant, reg 1.15(1)(a) is met.
Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)
The sponsor’s evidence is that she has resided in Australia since 2005 and lives in a suburb of Melbourne with her partner, Mr Hamilton-Byrne. The Tribunal accepts this evidence. As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.
No near relatives: reg 1.15(1)(c)
Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.
‘Near relative’ for these purposes is defined in reg 1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.
The Department file includes a copy of the applicant’s application for the Remaining Relative visa. In Part G (Details of other family members) of her application for the visa, the applicant declared that she has the following family members:
·Mr Roberto Schmidt Pinto, father, deceased;
·Ms Julia Aravena Uidal, mother, deceased;
·Mr Edmundo Schmidt Aravena, brother, aged 62, lives in Chile;
·Ms Marcela Schmidt Aravena, sister, aged 61, lives in Australia (the sponsor)
·Mr Jorge Schmidt Bosne, half-brother, aged 87, lives in Chile;
·Ms Clara Schmidt Bosne, half-sister, aged 82, lives in Chile;
·Ms Edith Schmidt Bosne, half-sister, aged 80, lives in Chile;
·Ms Isabel Schmidt Bosne, deceased.
The sponsor explained to the Tribunal that she shares common parents with the applicant, but their father had an earlier relationship prior to marrying their mother that produced four children being Jorge, Clara, Edith and Isabel. The Tribunal accepts this evidence.
On the evidence before the Tribunal, the Tribunal finds that the applicant has four ‘near relatives’, as that term is defined in reg 1.15(2) of the Regulations, who are not usually resident in Australia and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens. These near relatives are the applicant’s brother, half-brother and two half-sisters.
The evidence of the sponsor is that each of the applicant’s near relatives apart from the sponsor, live in Chile. Each of these near relatives provided a statement to the Tribunal confirming this to be the case. The Tribunal accepts this evidence.
Based on the evidence before the Tribunal, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is not met.
For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application for the Remaining Relative visa and at the time of this decision for the purposes of cl 835.212 and cl 835.221 respectively.
Conclusion
The Tribunal finds that the applicant does not meet the criteria for a Subclass 835 visa.
At that time the applicant applied for the Subclass 835 visa, Class BU contained two other subclasses: Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). The applicant does not claim to meet the requirements for either a Subclass 836 visa or a Subclass 838 visa.
In respect of Subclass 836, it is clear on the evidence before the Tribunal that the applicant is not seeking and is not in a position to provide care to an Australian relative and therefore cannot meet the requirements of cl 836.212 of Schedule 2 to the Regulations which requires the applicant to be the carer of an Australian relative.
In respect of Subclass 838, cl 838.212 of Schedule 2 to the Regulations requires an applicant for the Subclass 838 visa to be the aged dependent relative of an Australian relative. The term ‘aged dependent relative’ is defined in reg 1.03 to mean a relative who, amongst other things, “is old enough to be granted an age pension under the Social Security Act 1991”. The Social Security Act 1991 (Cth) sets out the “pension age” for men and women, which is dependent in part on the period of time during which someone seeking payment of the pension was born. Section 23(5D) of the Social Security Act 1991 (Cth) provides that for a woman born on or after 1 January 1957 the pension age is 67 years. The evidence before the Tribunal, which it accepts, is the applicant was born on 5 June 1964 and is presently aged 57 years. This means the applicant is not an ‘aged dependent relative’ as defined in the Regulations and therefore does not meet the requirement in cl 838.212 of Schedule 2 to the Regulations which requires an applicant for the Subclass 838 visa to be the aged dependent relative of an Australian relative.
Request for Ministerial Intervention
On 13 December 2021 the sponsor wrote to the Tribunal requesting – in the event of the Tribunal making a decision that is unfavourable to the applicant – that the Tribunal consider referring the applicant’s circumstances to the Minister for the Minister to consider exercising the Minister’s power under s 351 of the Act to substitute the Tribunal’s decision with a decision that is more favourable to the applicant.
Section 351 of the Act states:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The power under s 351 of the Act is a personal power that can only be exercised by the Minister and the Minister has no statutory or other obligation to do so. The Minister has issued guidelines, recorded in the Department’s Policy Advice Manual, setting out in what circumstances the Minister will consider the exercise of the Minister’s power under s 351 of the Act.
As the Minister’s power under s 351 is personal and discretionary it follows that there is no statutory or other power for the Tribunal to refer an applicant’s case to the Minister to consider the exercise of the Minister’s power under s 351. What has emerged over time is a practice of the Tribunal, through its written decisions, informing the Department that where the Tribunal conducts a review and the circumstances of the visa applicant are consistent with the Minister’s guidelines, the Tribunal considers that the visa applicant’s circumstances should be brought to the Minister’s attention by the Department. This practice has become known as the Tribunal referring a matter to the Minister.
If the Tribunal refers a matter to the Minister with a recommendation that the Minister consider exercising the Minister’s power under s 351 of the Act, the Minister is not obliged to consider the Tribunal’s recommendation.
Applicants can also directly seek that the Minister exercise the Minister’s powers under s 351 even if the Tribunal refers a matter to the Minister (usually providing additional information when they do so) or more commonly, when the Tribunal decides not to refer a matter to the Minister.
The guidelines on when the Department will refer a matter to the Minister to consider the exercise of the Minister’s power under s 351 of the Act state:
3. Ministerial intervention principles
The following principles apply to the intervention powers covered by these guidelines:
·it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia
·consideration of a case for intervention is at my discretion and is not an extension of the visa process
·if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene
…
CASES THAT SHOULD BE BROUGHT TO MY ATTENTION
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
·…
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
·the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country …
5. Other relevant information
5. Other relevant information
For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:
·circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
·circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme …
7. Inappropriate to consider
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing: …
·the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department …

In this section of the Tribunal’s decision the Tribunal refers to the applicant, the sponsor and the witnesses by their first names only.
Background to Jacqueline’s circumstances
Based on all the information before it, the Tribunal summarises Jacqueline’s circumstances as follows:
·Jacqueline was born in 1964 as the second daughter of her parents, Roberto and Julia, a sister to Marcela and their older brother Edmundo;
·Jacqueline’s father had four children from an earlier relationship, three of whom are alive today and who are 23, 25 and 30 years respectively older than Jacqueline;
·Jacqueline was born with cerebral palsy, causing physical disabilities including with mobility and speech and an intellectual deficit, as Jacqueline is intellectually the age of a seven year old;
·Cerebral palsy is a non-progressive condition so Jacqueline’s condition will not deteriorate but after early treatment and intervention, will also not significantly improve;
·Jacqueline grew up with her parents and siblings and when her parents passed away her primary carer became Marcela, who by that time was married and had two children of her own, Antonio and Katherine;
·Edmundo was estranged from the family and did not have very much to do with Jacqueline or her care at all. Edmundo continues to live in Chile but is not in a position to care for Jacqueline if she returns to Chile as he is not able to communicate effectively with Jacqueline and does not understand Jacqueline’s care needs;
·Jacqueline’s half-siblings are now each in their 80’s and each continues to live in Chile. If Jacqueline returns to Chile her half-siblings are not in a position to care for her because of their advanced ages, each have medical conditions of varying severity and impact, and they are not able to communicate effectively with Jacqueline and do not understand Jacqueline’s care needs;
·Marcela met James, an Australian citizen in Chile and in 2005 they emigrated to Australia with Marcela becoming an Australian citizen in September 2014;
·Antonio and Katherine completed their studies in Chile and then moved to Australia and both are now married, have children of their own and are in steady employment;
·When Marcela and James moved to Australia, Marcela arranged to provide money to her friend and former work colleague, Mrs Galarce Perez, to pay for Jacqueline’s care. Marcela and Mrs Galarce Perez spoke weekly while Jacqueline remained in Chile;
·Between 2005 and 2017 Marcela’s evidence is that she returned to Chile four times to check on Jacqueline;
·On 24 May 2017 Jacqueline was granted a Visitor visa that was valid until 3 June 2018 and arrived in Australia on 8 June 2017;
·Jacqueline departed Australia for two-day trips to Chile in September 2017, December 2017 and March 2018 before applying for the Remaining Relative visa in May 2018;
·Marcela and Mrs Galarce Perez told the Tribunal that despite their best efforts Jacqueline did not always receive the care and support they paid for while Jacqueline remained in Chile and they could tell Jacqueline was unhappy and her general health was declining;
·Jacqueline’s brother and half-siblings provided letters to the Tribunal confirming their circumstances in Chile and their individual and collective inability to provide any support to or care for Jacqueline;
·Marcela, James, Antonio and Katherine each gave evidence to the Tribunal of the important role that Jacqueline plays in their lives and the life of their extended family including Jacqueline’s nephews and nieces, their individual and collective love for Jacqueline, how Jacqueline has thrived in Australia since being reunited with Marcela and her family and the ongoing care and support they provide for Jacqueline and Jacqueline’s quality of life with her family in Australia compared to what she has and would experience if she had to return to Chile, particularly keeping in mind that Jacqueline has the cognitive functioning of a seven year-old and how traumatic being separated from her family again would be for her given her limited ability to comprehend or understand the reasons for such separation;
·Marcela provided extensive photos of Jacqueline in social settings with the family to support her evidence that Jacqueline is a much loved member of their family who is happy, thriving and engaged in the life she leads with them in Australia;
·Marcela provided financial information to support her and James’ evidence that they can financially meet Jacqueline’s needs such that Jacqueline will not be a burden on the Australian community;
·Marcela, Antonio and Katherine each gave evidence of the emotional distress Jacqueline returning to Chile would cause them and Jacqueline’s nephews and nieces;
·Marcela has concerns for Jacqueline’s physical and mental health if Jacqueline has to return to Chile and is concerned about finding appropriate accommodation and care for Jacqueline without which both her physical health and psychological state could be significantly and irreversibly harmed.
It was a privilege for the Tribunal to be given an insight into Jacqueline’s life in Australia and to hear about the love, care and support Marcela and her family have and provide to Jacqueline, the love Jacqueline has for them and the pleasure they derive from having Jacqueline in their lives. The two letters that Marcela wrote to the Tribunal and the detailed letters that Antonio and Katherine each wrote to the Tribunal about Jacqueline were beautifully written and very moving.
The Tribunal found the evidence of each of Marcela, James, Antonio, Katherine and Mrs Galarce Perez to be open, candid, honest and credible. The Tribunal does not have any reason to disregard their evidence or any key aspects of their evidence or to not believe the overall narrative presented to the Tribunal. The Tribunal has considerable empathy for Marcela, James, Antonio and Katherine wanting Jacqueline to remain in Australia.
Regrettably for Jacqueline, the Tribunal is not going to seek that Jacqueline’s circumstances be brought to the Minister’s attention. This does not prevent Marcela or anyone else from seeking to do so on Jacqueline’s behalf.
The reasons the Tribunal is not going to refer Jacqueline’s circumstances to the Minister are:
·Jacqueline travelled to Australia on a short-term visa and represented to the Government when she did so that she would return to Chile before that visa expired;
·It is not an unintended outcome of the primary visa, being a Visitor visa, that Jacqueline held that Jacqueline is required to return to Chile;
·In representing that she would return to Chile, Jacqueline was not prevented from pursuing lawful pathways to remain in Australia for longer or permanently;
·It is not an unintended outcome that Jacqueline is not eligible for the Remaining Relative visa that Jacqueline applied for, even though the Tribunal accepts that none of Jacqueline’s relatives outside of Australia are in a position to provide appropriate care and support for Jacqueline, let alone provide care and support in the manner that Marcela and her family provide to Jacqueline;
·Jacqueline lived in Chile between 2005 and 2017 without Marcela being present, except during four visits. The Tribunal accepts that during this time Jacqueline did not have the quality of life she now has living with Marcela and her family, who the Tribunal also accepts are best placed to provide high quality care, love and support for Jacqueline. However, it is not clear to the Tribunal that Jacqueline could not have a quality of life in Chile that does not cause her irreversible harm and ongoing hardship if Jacqueline was required to return to Chile. For clarity, the Tribunal does not seek to minimise or disregard the emotional and potential psychological trauma that a return to Chile could cause for Jacqueline, Marcela and Marcela’s family. It is also clear to the Tribunal that if Jacqueline does return to Chile, she will not receive the love, care and support she receives from Marcela and her family in Australia. The Tribunal’s point here is that it has not been demonstrated to the Tribunal’s satisfaction that care arrangements could not be made in Chile for Jacqueline that would preserve Jacqueline’s dignity and avoid serious, ongoing and irreversible harm and continuing hardship being visited upon Jacqueline; and
·The Tribunal is concerned about the potential public policy implications for Australia’s migration program in Jacqueline’s circumstances. To explain these concerns:
oA visa applicant with significant care needs uses the Visitor visa program to come to Australia when there is no obvious pathway for them to migrate here;
oThe Visitor visa holder applies for a substantive visa when they are in Australia;
oThe Visitor visa holder’s potential eligibility for the visa they apply for is at best unclear or realistically they do not meet the requirements to be granted the substantive visa;
oThe Visitor visa holder then uses the appeal rights associated with an application for a substantive visa made in Australia to elongate their stay in Australia, potentially for years, making their probable eventual return to their home country more traumatic for them and for their family members who remain in Australia.
The Tribunal is not and does not suggest the concerns set out in the last main dot point and sub-points above are what occurred in Jacqueline’s application for the Remaining Relative visa. Jacqueline and Marcela were not represented or assisted by an immigration lawyer or migration agent at any stage of the application or review process to the Tribunal’s knowledge. In the Tribunal’s view Marcela applied for the Remaining Relative visa on Jacqueline’s behalf in good faith and with an, overly optimistic as it turned out, expectation that if Jacqueline’s relatives who were outside Australia (i.e. in Chile) could not provide the support and care Jacqueline needs then this could be taken into account when considering Jacqueline’s application for the Remaining Relative visa.
However, the Tribunal’s point is that cases similar to Jacqueline’s are unfortunately not isolated and those responsible for the policy settings of, and administering, Australia’s migration program are keenly aware of the potential implications of creating new pathways to permanent residency or citizenship in Australia.
One public policy implication that the Tribunal can foresee is that fewer applicants in similar situations to Jacqueline could end up being granted Visitor visas if a pattern emerged of Visitor visas frequently being used by applicants with significant disabilities or care needs to come to Australia to apply for a substantive visa. This is problematic in the Tribunal’s view because people with disabilities or care needs who can travel should have equal access to the Visitor visa program to visit and spend time with relatives in Australia as those who do not have a disability or care needs. Immigration decisions that may lead to that principle being undermined should be made with great care.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Michael Ison
Senior Member

Attachment 1 - Extracts from the Migration Regulations 1994
1.15 Remaining relative
(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and
(b)the other person is usually resident in Australia; and
(c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:
(i)usually resident in Australia; and
(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and
(d)if the applicant is a child who:
(i) has not turned 18; and
(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:
at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2)In this regulation:
near relative, in relation to an applicant, means a person who is:
(a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or
(b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:
(i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or
(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).
Attachment 2 – Pre-hearing submissions to the Tribunal on behalf of the applicant
The submissions the Tribunal received from the applicant prior to the Tribunal hearing, with the main, but not necessarily all, documents attached to each submission were:
Submission received 3 May 2019
·two-page written statement, undated, from the sponsor Ms Marcela Schmidt Aravena.
Submission received 3 November 2019
·two-page untranslated joint written statement from Mr Jorge Schmidt Bosne, Ms Edith Schmidt Bosne and Ms Clara Schmidt Bosne;
·translated disability report for Ms Edith Schmidt Bosne, dated 1 September 2016;
·translated medical certificate for Ms Clara Schmidt Bosne, dated March 2019;
·two-page translated joint written statement from Mr Jorge Schmidt Bosne, Ms Edith Schmidt Bosne and Ms Clara Schmidt Bosne, dated May 2019; and
·translated and copy of original birth certificate of Ms Schmidt Aravena (the sponsor) dated 30 April 2019.
Submission received 26 September 2021
·support letter from a friend of the sponsor, Ms Rosa Hormazabal Bravo, dated 8 May 2019.
Submission received 3 October 2021
·overseas health visitor’s health cover for the applicant issued by Allianz Care Australia, dated 27 September 2021;
·support letter from a friend of the sponsor, Mr Eduardo Correa Tapia, dated 12 May 2019; and
·support letter, undated, from a friend of the applicant and the sponsor, Ms Paulina Galarce Perez.
Submission received 19 October 2021
·translated two-page joint written statement from Mr Jorge Schmidt Bosne, Ms Edith Schmidt Bosne and Ms Clara Schmidt Bosne, dated May 2019;
·translated and copy of original disability certificate for the applicant, dated 6 July 2016;
·translated and copy of original birth certificate of the applicant, dated 5 October 2021;
·untranslated medical document for the applicant; and
·opinion of a Medical Officer of the Commonwealth from Bupa dated 14 March 2017 using Form 884 and indicating the applicant does not meet the health requirement for the grant of a Visitor (Subclass 600) visa.
Submission received 20 October 2021
·current Australian passport of the sponsor Ms Schmidt Aravena;
·current Australian passport of Mr Hamilton-Byrne (the sponsor’s husband and applicant’s brother-in-law);
·photos showing the social gatherings and activities of the applicant and the sponsor’s family in Australia;
·translated and copy of original death certificate for the mother of the applicant and sponsor, dated 8 March 2014;
·translated and copy of original death certificate for the father of the applicant and sponsor, dated 8 March 2014; and
·a further two-page written statement undated from the sponsor Ms Schmidt Aravena.
Attachment 2 – submissions to the Tribunal on behalf of the applicant (continued)
Submission received 21 October 2021
·translated and copy of original written statement from the applicant’s brother Mr Edmundo Schmidt Aravena, dated 1 October 2021;
·Certificate III in Aged Care Work issued to the sponsor Ms Schmidt Aravena from Phillips Institute, dated 6 February 2007;
·translated and copy of original birth certificate of Mr Schmidt Bosne, dated 6 October 2021;
·translated and copy of original birth certificate of Ms Clara Schmidt Bosne, dated 5 October 2021; and
·translated and copy of original birth certificate of Ms Edith Schmidt Bosne, dated 2 October 2021.
Submission received 25 October 2021
·translated and copy of original medical certificate for Ms Clara Schmidt Bosne, dated March 2019;
·translated and copy of original disability report for Ms Edith Schmidt Bosne, dated 1 September 2016;
·translated and copy of original Social Security Benefit – Payment slip of the visa applicant, from 1 June 2020 to 30 June 2020; and
·translated and copy of original birth certificate for the brother of the applicant and sponsor, Mr Edmundo Schmidt Aravena, dated 5 October 2021.
Submission received 5 November 2021
·photos showing the social gatherings and activities of the applicant and the sponsor’s family in Australia;
·one-page written statement from Ms Katherine Leiva Schmidt, the niece of the applicant and daughter of the sponsor, dated 3 November 2021;
·Notice of income tax assessment – year ended 30 June 2021 issued to the sponsor, Ms Schmidt Aravena; and
·Notice of income tax assessment – year ended 30 June 2021 issued to Mr Hamilton-Byrne.
Submissions received 7 November 2021 and 9 November 2021 (some in duplicate)
·support letter from Ms Mariluz Tapia and Mr Gonzalo Tapia, dated 10 October 2021;
·bank statements showing the international transfer of funds from the sponsor to Chile to support the applicant, from November 2014 to May 2017;
·photos showing the social gatherings and activities of the applicant and the sponsor’s family in Australia;
·one-page written statement from Mr Antonio Leiva Schmidt, the nephew of the applicant and son of the sponsor, dated 30 October 2021; and
·contact details for the witnesses Mrs Paulina Galarce Perez and Ms Katherine Leiva Schmidt.

[2022] AATA 1792

11 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice