Sun (Migration)

[2019] AATA 2394

Sun (Migration) [2019] AATA 2394 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ting Sun

CASE NUMBER:  1707176

HOME AFFAIRS REFERENCE(S):           CLF2016/55184

MEMBER:Justin Owen

DATE:16 April 2019

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 April 2019 at 1:40pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of the Australian relative – caring for infant son – applicant separated from Australian spouse – son has no medical condition causing physical, intellectual or sensory impairment – sponsored by the Australian relative – ongoing health issues of the son – Ministerial Intervention request – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 1 Item 1123B; Schedule 2, cls 835.212, 836.111, 836.212, 836.213, 836.221, 836.227, 838.212; rr 1.03, 1.15, 2.26
Social Security Act 1991

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 16 March 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 12 September 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 (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.836.221. 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 which is set out in the attachment to this Decision.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the family member requiring care Master Eli Chen was found, as outlined in the Carer Visa Assessment Certificate dated 27 October 2016, not to have a medical condition that was causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of his daily life.  The delegate found therefore that r.1.15AA(1)(b)(ii) was not met.  The delegate also found that, as the examining doctor had found that a rating under the Impairment Tables was not applicable, r.1.15AA(1)(b)(iii) was not met.  The delegate found that r.1.15AA(1)(b) was not met.     

4. The applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s son, Master Eli Sun. 

8. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

9. The applicant claims to reside and care for her son, Master Eli Sun who was born on 6 October 2015 at the Royal Women’s Hospital, Parkville.  The applicant was sponsored for the Carer’s visa by Master Eli Sun’s father, Mr Hengli Chen.  The Tribunal accepts that Master Eli Sun is the son of the applicant.

10. 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 which is set out in the attachment to this Decision.  The Australian relative is her son, Master Eli Sun. 

11. The applicant made detailed written submissions and supplied a wide range of supporting documentation through her representative to the Tribunal concerning the status of her relationship with her son and with the sponsor.  

12. The applicant through her representative conceded in her written submissions that the applicant did not meet the requirements under clause 836.211 of the Act (T1, Folio.57-58). The applicant requested in light of this that the Tribunal refer the matter to the Minister so that he could consider intervening in this matter pursuant to s351 of the Act.

13. At the hearing in response to the Tribunal’s questions the applicant’s representative essentially conceded that the applicant was unable to meet r.1.15AA(1)(b) as the applicant’s son would not meet the requirements of r.1.15AA(2), which states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.  The applicant’s representative conceded that the applicant’s son would be unable to obtain a Carer Visa Assessment Certificate that met the relevant criteria for the grant of this visa. 

14. The Tribunal accepts that the applicant does not meet cl.836.211 and furthermore finds that the applicant does not meet the time of decision criteria: 836.221.

15. 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 r.1.03 of the Regulations. ‘Spouse’ is defined in r.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).  Clause 836.227 requires that the sponsorship has been approved by the Minister and is still in force at the time of decision. 

16. The Tribunal notes the significant evidence that the applicant provided concerning her relationship with the sponsor.  The applicant in her statutory declaration writes that she stayed in a relationship with the sponsor until March 2017 ‘when the last incident of family violence occurred.’ (T1, Folio.64)   The Tribunal notes the Intervention Order for twelve months that the Magistrates Court imposed against the sponsor on 6 March 2017 (T1, Folio.40) and the Victoria Police correspondence concerning a family violence incident dated 8 February 2016.  The applicant at the hearing confirmed that the relationship with the sponsor is over and said that she and her son had last seen the sponsor at her son’s second birthday which was in October 2017.  The applicant has made a successful application to the Child Support Agency (CSA) seeking financial support from the sponsor for the care of her son (T1, Folio. 32-34): regrettably on the evidence of the applicant, these payments remain unpaid.  The Tribunal on the basis of the oral testimony of the applicant and her statutory declaration and supporting evidence to the Tribunal is satisfied that at the time of decision the applicant is no longer in a relationship with the sponsor. 

17. On the evidence before it the relationship between the applicant and sponsor ended in March 2017.  The Tribunal therefore is not satisfied that the applicant remains sponsored by the sponsor at the time of decision.  The Tribunal is not satisfied that the sponsorship at the time of application remains ‘in force’ at the time of decision.  The applicant does not satisfy cl.836.227.

18. Therefore, at the time of decision, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.227.

19. 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..

20. The evidence before the Tribunal is that the applicant was born on 22 April 1980.  The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

21. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant has stated the rest of her family beyond one cousin reside permanently offshore.  As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

22. 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.

23. The Tribunal notes that the applicant through her representative wrote to the Minister on 4 April 2019 requesting Ministerial Intervention pursuant to s351 of the Migration Act (T1, Folio. 51-56).  The applicant requested that the Minister exercise his discretion and grant the applicant a visa on the basis of exceptional and compelling circumstances which both justified his intervention and satisfied the public interest requirement.

24. In the applicant’s submission to the Tribunal of 4 April 2019 the applicant has submitted that this matter warrants the Tribunal’s referral to the Minister for ministerial intervention as there exists compelling and compassionate circumstances (T1, Folio.57-58).    

25. The applicant through her representative provided a wide range of supporting documentation including the applicant’s statutory declaration, medical records pertaining to her son and various letters of support.  Whilst it is not necessary for the Tribunal to go through the detail of the submissions in this decision record, the Tribunal does wish to record its appreciation for the excellent detailed and informative written submissions that have been made by the applicant’s representative Miss Khawaja.   

26. At the hearing the applicant spoke about the challenges she faces raising her three year old son (who attended the hearing) without the support of the child’s father, the sponsor.  The Tribunal found the applicant to be an extremely articulate and impressive witness who spoke with candour and, the Tribunal considers, honesty in relation to the difficulties she faces given she is unable to meet the criteria for a Carer visa.  The Tribunal notes the corroborative evidence she supplied concerning incidents of family violence, her financial difficulties (including her recent eviction T1, Folio.31) and the ongoing health issues of her son.  The Tribunal is mindful of the fact that the applicant’s son is an Australian citizen who is three and a half years old and is totally reliant on his mother for care and support.  The Tribunal recognises the correspondence from individuals supporting the considerable responsibilities the applicant has taken on without the support of her child’s father and without the support of virtually any family in Australia (T1, Folio.26-30).        

27. The Tribunal agrees with the applicant’s submission that there are strong compassionate circumstances as such that failure to recognise them may result in harm and hardship to an Australian citizen – the applicant’s son, Master Eli Sun – that, in the Tribunal’s opinion, warrant this case being referred to the Department for the Minister’s attention. 

    DECISION

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

29. Having regard to the applicant’s circumstances, in particular the applicant’s three-year old son who is an Australian citizen entirely reliant upon his mother the applicant for care and support, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    Justin Owen
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

    (a)the applicant is a relative of the resident; and

    (b)according to a certificate that meets the requirements of subregulation (2):

    (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

    (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

    (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

    (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

    (e)the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia; and

    (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

    (2)A certificate meets the requirements of this subregulation if:

    (a)it is a certificate:

    (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

    (ii)signed by the medical adviser who carried it out; or

    (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

    (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.