Tasgul (Migration)

[2018] AATA 2329

Tasgul (Migration) [2018] AATA 2329 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zarife Tasgul

CASE NUMBER:  1611143

DIBP REFERENCE(S):  CLF2016/26505

MEMBER:Kira Raif

DATE:25 June 2018

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 25 June 2018 at 10:20am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Carer of the sponsor – No relevant impairment rating – Unable to satisfy the carer certificate – Wishes to assist daughter and grandchildren – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, r 1.15AA Schedule 1 Item 1123B Schedule 2 cl 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 on 7 July 2016 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 visa applicant is a national of Turkey, born in September 1950. She applied for the visa on 29 April 2016. 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 the carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter and son in law. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. 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

4. At the time the visa application was lodged, the Other Family (Residence) (Class BU) visa contained Subclass 835 (Remaining Relative), Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): Item 1123B of Schedule 1 to the Regulations. The only subclass in respect of which any claims have been advanced is Subclass 836 (Carer).

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

   Is the applicant the carer of the sponsor?

6. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument.

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant provided with her application a Carer certificate in relation to Isil Tilki with no impairment rating. The delegate wrote to the applicant giving her an opportunity to comment on that information. The applicant provided a new Carer Certificate which specified the impairment rating of 10. The applicant confirmed this in her oral evidence.

8. There is no evidence before the Tribunal that there exists a Carer certificate with the requisite impairment rating of 30 or above. The Tribunal is not satisfied the applicant meets r. 1.15AA(1)(c) and she is not a carer for the purpose of cl. 836.221.

9. In her written submission to the Tribunal of 19 June 2018 the applicant concedes that the visa requirements cannot be met because there is no relevant impairment rating for the purpose of the Carer certificate. The applicant requested the Tribunal to make a referral to the Minister under s. 351 of the Act. The applicant refers to the need for her to remain in Australia to monitor her daughter and an Australian child, noting that her daughter is pregnant with another child. The applicant refers to her daughter’s condition and the need for someone to care for her. The parties provided the same evidence in their oral evidence to the Tribunal. Various medical records and other materials have been submitted to the Tribunal. The Tribunal acknowledges that evidence and accepts that the applicant provides care and support to her daughter. The Tribunal accepts that some hardship may be caused to the family if the visa applicant was to leave Australia. However, the Tribunal is also mindful that there may be other visa options available to the applicant that would be appropriate in the circumstances of this case.

10. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

11. The applicant is old enough to be granted the aged pension. However, her evidence to the Tribunal is that she receives a pension from Turkey and has access to the pension, which is about $500 a month and she also has about $5000 in savings. The visa applicant said she has her own funds and her other children can also support her. The visa applicant said she relies on her own money and not on the sponsor for financial support. The Tribunal is not satisfied the visa applicant is dependent on her daughter  and she is not an Aged Dependent Relative. The visa applicant stated in oral evidence, she has two sons overseas and she stated on the application form that she has a number of siblings in Turkey. The Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative 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