Teng (Migration)

[2018] AATA 1058

Teng (Migration) [2018] AATA 1058 (27 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lani Maunes Teng
Mr Eric Lim Teng

CASE NUMBER:  1608290

DIBP REFERENCE(S):  CLF2016/10327

MEMBER:Kira Raif

DATE:27 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 27 March 2018 at 12:34pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visas – Subclass 836 (Carer) – Mother in need of care – Sponsor is the sister – Sponsor and person in need of care live in the same household – Changing of sponsors not permitted once the application is made – Requirements not met for the Aged Dependent Relative visa

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 rr 1.03, 1.12, 1.15AA Schedule 1 Item 1123B Schedule 2 cls 836.213, 836.221, 836.321

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 24 May 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of the Philippines. The first named applicant (‘the applicant’) was born in December 1962. The applicants applied for the visa on 5 February 2016. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 27 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. 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.

6. The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, paragraph (e) of that definition provides that a member of the family unit includes

   a relative of the family head or of a spouse or de facto partner of the family head who:

   (i)          does not have a spouse or de facto partner; and

   (ii)         is usually resident in the family head's household; and

   (iii)         is dependent on the family head.

   Are the sponsorship requirements met?

7. The applicant was sponsored in this application by her sister, Ms Lobell Maunes Zilm. The Tribunal finds that Ms Zilm was the sponsor of the applicant for the purpose of cl. 836.213.

8. For the purpose of cl. 836.221, the Tribunal has considered whether the applicant is a carer of the Australian relative, Ms Zilm. The applicant stated on the application form that the person in need of care is her mother Elberta Maunes and the relevant Carer certificate in relation to Ms Maunes has been submitted. There is no suggestion that the person in need of care is the sponsor, Ms Zilm. The Tribunal finds that the person who has the medical condition is the applicant’s mother, Ms Maunes. To meet r. 1.15AA(1)(b)(i), she must be a member of the family unit of the sponsor within the meaning of r. 1.12.

9. The various documentation submitted with the application shows the mother resides with the sponsor at the same address and the delegate accepted that the sponsor and the person in need of care live in the same household. However, the applicant stated on the application form that both her parents reside in Australia. The applicant confirmed in oral evidence that her parents were still married. That is, the applicant’s mother has a spouse or a de facto partner. The Tribunal is not satisfied the mother meets r. 1.12(1)(e)(i).

10. The mother, who is in need of care, is not a spouse or de facto partner of the family head. She is not a dependent child or a dependent child of a dependent child of the family head. She does not meet r. 1.12(1)(a), (b) and (c). Because she has a partner, she does not meet r. 1.12(2). The Tribunal is not satisfied that the applicant’s mother, Ms Maunes meets r. 1.12 and she is not a member of the family unit of the sponsor. The Tribunal is not satisfied that the applicant meets r. 1.15AA(1)(b)(i) and she is not a carer of an Australian relative.

11. In oral evidence the review applicant told the Tribunal that they were confused and did not understand the legal requirements and made a mistake about the sponsorship. The applicant explained that because her sister was working, they thought she should act as a sponsor. The Tribunal acknowledges that evidence, however, the Tribunal notes that the sponsorship form and the application form clearly refer to the sister as the sponsor and not the applicant’s mother. The Tribunal accepts that the applicant may have been confused or lacked understanding of the legal requirements but the Tribunal does not accept that there was a typographical error or an unintentional mistake in relation to the sponsorship. There is nothing in any of the paperwork presented with the application that indicates that the parties’ intention was to nominate the mother as the sponsor. The applicant did intend for her sister to be the sponsor, as she herself explained to the Tribunal, and it was not the intention for the mother to be the sponsor. It may well be that once the application was refused, and once the applicant became more familiar with the visa requirements, the parties thought about changing the sponsors but the Tribunal does not consider that the legislation permits the changing of the sponsors once the application was made.

12. The Tribunal finds that the applicant does not meet cl. 836.221 and the secondary applicant does not meet cl. 836.321. There is nothing to suggest he meets the primary criteria for visa grant.

13. The Tribunal is not satisfied that the applicants meet the requirements for the Aged Dependent Relative visa as the applicants provided no evidence of being, and do not claim to be, dependent on the sponsor. The visa applicants were born in 1962 and are not old enough to be granted the relevant pension. They do not meet the requirements for the grant of the Aged Dependent Relative visas.

14. The applicant stated on the application form that she and her spouse have several relatives outside of Australia. The Tribunal finds that the applicants have near relatives who are not in Australia and who are not Australian citizens or permanent residents or eligible New Zealand citizens. The applicants do not meet the requirements for the grant of the Remaining Relative visa.

    Conclusion

15. 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

16. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Kira Raif
    Senior Member