See (Migration)

[2021] AATA 2049

See (Migration) [2021] AATA 2049 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Siew Lin See

VISA APPLICANTS:  Miss Meow Choo Liew
Mr Yong Kong Liew

CASE NUMBER:  2006269

HOME AFFAIRS REFERENCE(S):          OSF2017/021483

MEMBER:Helena Claringbold

DATE:8 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 08 June 2021 at 8:07am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsored by another sibling, not the Australian relative needing care, because of that sibling’s better financial position – new sponsorship application by relative needing care made after delegate’s decision – no discretion to waive time-of-application requirements – member of family unit – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cls 116.212(b), 116.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 December 2017, Ms Meow Choo Liew, the primary visa applicant, applied for an Other Family (Migrant) (Class BO) Carer visa. The application was made based on her providing assistance to Ms Miow Chin Liew also known as Jamie Liew, her sister. Mrs Siew Lin See is nominated as the sponsor and is the review applicant. Mr Yong Kong Liew is the secondary visa applicant and brother of Ms Meow Chin Liew.

2. At the time of application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa.

3. On 20 March 2020, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the sponsorship requirements were met. Therefore, the primary visa applicant did not meet cl.116.212 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act). This resulted in the secondary visa applicant not meeting cl.116.321 of Schedule 2 of the Regulations. On 28 March 2020, the sponsor applied for review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 2 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jamie Liew, which was given in the English language. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant confirmed that she understood the interpreter clearly.

5. For the following reasons, the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file. 

   ISSUE

7. The issue in the present case is whether, at the time of application, the sponsorship requirements are met.

   BACKGROUND ON THE EVIDENCE

8. Ms Meow Choo Liew (Ms Meow), was born in 1971 in Melaka Malaysia.  Her parents are deceased. She has four siblings living in Vietnam and two siblings living in Australia. She did not declare any previous relationships. On 20 March 2020, the applicant was refused an Other Family (Migrant) (Class BO) Carer visa.

9. Mr Yong Kong Liew (Mr Liew), was born in 1957 in Melaka, Malaysia. His parents are deceased. He has the same sibling composition as Ms Meow.

10. Mrs Siew Lin See (Mrs See), was born in 1959 in Jasin, Melaka, Malaysia. Her parents are deceased. She has the same sibling composition as Ms Meow.  In 2003, Mrs See married Mr S. On 14 November 1987 she entered Australia. On 2 December 2003, she became an Australian citizen by grant.

11. Ms Miow Chin Liew (Ms Miow), the person needing the care, was born in 1969 in Melaka, Malaysia. Information has been provided to support that she suffers from multiple medical issues.

    Are the sponsorship requirements met?

    Time of application requirements

12. Clause 116.211 of Schedule 2 to the Regulations, requires that, the visa applicant claims to be a carer of an Australian relative of the visa applicant.

13. Clause 116.212 requires, that the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18.

14. 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).

    Was the visa applicant sponsored by the ‘Australian relative’?

15. On the visa application form signed and dated 1 December 2017, Ms Meow, declared the relative in Australia who needs her care to be Ms Miow, her sister. 

16. On the sponsorship form signed and dated 7 November 2017, Mrs See declared that she is the sponsor in the visa application. She stated that the visa applicants, will live with her sister in her home and she provided the residential details for Ms Miow. Mrs See is an Australian citizen.

17. In a letter dated 7 November 2017, Mrs See declared the following. She has suffered from work related injuries and medical conditions since 2013. Without the help of her family she would not have survived. She is unable to care for her sister (Ms Miow) because of her own health issues. Therefore, she is sponsoring Ms Meow, her sister, to care for Ms Miow, her sister in Australia. She provided the following information:

    ·A certificate of capacity issued by the Transport Accident Commission dated 19 September 2013 for Mrs See.  It recorded Mrs See’s medical conditions and that she had no capacity for employment from 6 October 2017 to 5 January 2018.

    ·Birth certificates for Ms Meow, Ms Miow, Mrs See and Mr Liew, support that their biological parents are Mr Liew Yun Chai and Ms Lee Kiyau Moy.

    The Tribunal has been provided information including the following:

18. A letter dated 25 March 2020, addressed to the Department in which Ms Meow stated the following. Because of the reasons for the visa refusals and the uncertainty resulting from the Corona Pandemic, she would like to revise and resubmit a ‘Sponsorship for migration to Australia’ form. Without understanding the requirement of cl.116.212, Mrs See was declared as the sponsor because she was better qualified financially. Mrs See is dealing with her own health issues and is incapable of providing any care or assistance to Ms Miow. Having referenced the sponsorship form at page three, she notes that a sponsor cannot usually change once the sponsorship form is lodged. However, she requests an exemption in her case. She is amazed that Mrs See is not able to sponsor her to care for Ms Miow. She is not being sponsored to provide Mrs See with care. She seeks advice as to whether she should withdraw the application and make a new application with Ms Miow as the sponsor. Are there any forms Mrs See should provide? Is there another separate form 40 for another dependent family member? The following was also provided:

    ·Information from medical professional and other information detailing the medical conditions that Ms Miow suffers from and other information about her circumstances.

    ·A Carer Visa Assessment Certificate issued by Bupa Medical Visa Services on 18 May 2021. This recorded that a total rating of 30 had been assigned to Ms Miow.

    ·A certificate of capacity issued by the Transport Accident Commission dated 3 March 2021 for Ms Miow.  It recorded her conditions and that she had no capacity for employment from 4 March 2021 to 30 May 2021.

    ·A certificate of capacity issued by the Transport Accident Commission dated 13 March 2020 for Mrs See.  It recorded Mrs See’s conditions and that she had no capacity for employment from 14 March 2020 to 14 June 2020.

19. In a letter dated 16 April 2020 Mrs See provides information including the following.  She would sponsor Ms Meow and Mr Liew financially upon the approval of the visas, to enable the provision of care for Ms Miow who is suffering from physical and mental issues. She provided her sponsorship based on her financial ability to support her sibling’s application. She disagreed with the Department’s decision and hopes that her sponsorship can be considered. Ms Miow is a close relative of hers but is not staying with her.  Her application is solely for Ms Meow to provide care for Ms Miow. She provided a ‘Sponsorship for migration to Australia’ form signed and dated 25 March 2020 by Ms Miow.  In the sponsorship form Ms Miow declared that she is sponsoring Ms Meow and Mr Liew.  At part F – Your Details question 17, asks ‘Your present name’, Miow Chin Liew’ is declared.

20. In a letter dated 29 April 2021 from Ms Miow, she provided information including the following. She will sponsor her siblings and will fully support them financially during their stay in Australia. Her workers’ compensation claim is proceeding.  Her salary will continue for about 15 years. She provides details of her medical conditions. She hopes that her sponsorship claim can be considered.

21. Mrs See told the Tribunal the following.  She currently lives with her husband. At the time of application, Ms Meow claimed to be the carer of Ms Miow and Mrs See was nominated as the sponsor.  At that time, she couldn’t provide care for Ms Miow as she had health challenges of her own and needed her daughter to help her. Later she discovered that she was not eligible to be the sponsor. However, since that time, Ms Miow started her own sponsorship. Ms Miow’s health is deteriorating and needs care.  They can support the visa applicants financially.  If they needed to cover the cost of care outside of the family, it would be cost prohibitive.

22. Ms Miow told the Tribunal the following. She currently lives alone. At the time of application, they thought that Mrs See was better able to support the visa applicants financially and that is why she was put forward as the sponsor. Later the Department refused the visa applications. Over the years her medical conditions have worsened.  She needs care and assistance now and can’t wait for the outcome of another visa application, to bring the visa applicants to Australia. 

23. On 3 June 2021, Ms Miow wrote to the Tribunal and stated the following. The Tribunal’s review process guide states that the Tribunal will consider the case afresh and has the power to change the decision under review. She disagrees with the delegate’s decision. She believes that her sponsorship nomination should be considered reasonable and valid. She considers it futile for the Department to advise of a review right, if she could not be accepted as the sponsor for the visa application.  She draws attention to the time period taken for the consideration of the visa application and review.  She provided a letter that the visa applicant sent to the Department seeking advice and emails from the Department.

24. At the time of visa application Ms Meow claimed to be the carer of Ms Miow, her Australian relative.

25. At the time of visa application, Mrs See provided a sponsorship form signed and dated 7 November 2017.  She declared that she is sponsoring the visa applicants for the visas.

26. At the time of application, this resulted in Ms Meow being sponsored by Mrs See and not sponsored by Ms Miow, the Australian relative whom she claimed to be the Australian relative needing her care.

27. Therefore, the primary visa applicant does not meet cl.116.212(a) of Schedule 2 to the Regulations.

28. There is no evidence before the Tribunal that the primary visa applicant is being sponsored by the spouse or de facto partner of the Australian relative. Therefore, the primary visa applicant does not meet cl.116.212(b) of Schedule 2 to the Regulations.

29. The Tribunal has been provided a sponsorship form dated 25 March 2020, which is after the delegate’s decision on 20 March 2020.  In this form Ms Miow declared that she is the sponsor for the visa application.  As the sponsorship was provided after the time of application, the nomination for sponsorship does not meet the time of application requirements. While the Tribunal is sympathetic to the circumstances in this case, the Tribunal does not have the discretion to waive the time of application requirements.

30. Therefore, at the time of application, the visa applicant was not sponsored as required by the legislation and does not satisfy cl.116.212 of Schedule 2 to the Regulations.

31. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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.

32. As the primary visa applicant has not met the criteria for the grant of the visa, it follows that the secondary visa applicant does not meet cl.116.321 of Schedule 2 to the Regulations.

    DECISION

33. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Helena Claringbold
    Member