SENIMOLI (Migration)

[2023] AATA 3512

SENIMOLI (Migration) [2023] AATA 3512 (11 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kelera Adi SENIMOLI

REPRESENTATIVE:  Mr Greg Newton (MARN: 1173844)

CASE NUMBER:  1925539

HOME AFFAIRS REFERENCE(S):          CLF2015/33252

MEMBER:Michael Cooke

DATE:11 September 2023

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 11 September 2023 at 1:06pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant’s sponsor had demised – applicant has requested that the Tribunal refer the case to the Minister for Intervention – Tribunal has decided to refer the case to the Department –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15, Schedule 2, cls 836.213, 836.227

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 27 August 2019 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 3 June 2015. 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 836.227.

3. The delegate refused to grant the visa on the basis that cl 836.227 was not met because the applicant’s sponsor had demised.

4. The applicant was represented in relation to the review by Greg Newton who sent the following correspondence to the Tribunal:

   Dear Registrar,

   Thank you for the notice regarding the tribunal video testing session today. Please note that we will not be attending video testing session today nor the hearing based on the current legislation eligibility to grant a carer family Class BU visa as the sponsor has passed away therefore there are no grounds to be granted this visa under clause 836.227

   However, what we request is that a decision to be made on the papers without a hearing and the case be recommended to the minister for intervention based on compelling and compassionate reasons as follows:

   The applicant has been travelling to Australian since 2012 and from 2015 has been living in Australia permanently therefore for over 10 years the applicant calls Australia home. Ms Senimoli cares for her sister here in Australia and has limited ties to her home country furthermore being forced to leave Australia would significantly impact her sister who is an Australian citizen.

   Please act on the necessary so we can open up the pathway for MI.

   Thank you

   Greg Newton

   MARN#1173844

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant was the subject of sponsorship at time of decision.

   SPONSORSHIP

   Are the sponsorship requirements met?

7. 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).

8. Documents supplied with this application establish that the applicant's sponsor, Fulori Rokodrausa WAIBUTA was her mother.

9. On 3 January 2017 the applicant was assessed as meeting the requirements for a subclass 836 visa and was accordingly assigned a queue date of 3 January 2017.

10. On 22 July 2019 the Department received a letter from the applicant informing the Department that the sponsor (her mother) had passed away. The applicant provided a copy of her mother’s death certificate, in which the date of death was informed as 27 April 2017.

11. On 22 July 2019 the applicant was notified via email that the passing of her mother meant that she no longer met clause 836.227 of the Regulations which requires that the sponsorship at time of application remains in force at time of decision.

12. Therefore, at the time of application, the Tribunal finds that the applicant was sponsored as required by the legislation and satisfied cl 836.213. However, following the demise of her sponsor she no longer meets clause 836.227 of the Regulations.

13. 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.

14. The applicant has requested that the Tribunal refer the case to the Minister for Intervention based on ‘compelling and compassionate reasons’ as follows:

    The applicant has been travelling to Australian since 2012 and from 2015 has been living in Australia permanently therefore for over 10 years the applicant calls Australia home. Ms Senimoli cares for her sister here in Australia and has limited ties to her home country furthermore being forced to leave Australia would significantly impact her sister whom is an Australian citizen.

15. The Tribunal has decided to refer the case to the Department on the basis that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

    DECISION

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

    Michael Cooke
    Senior Member