Tiko (Migration) - [2025] ARTA 426

TIKO (MIGRATION) [2025] ARTA 426 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Kalisi Nuse Ledua Rachel Tiko
Mr Nacanieli Lutu Tiko
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2104374

Tribunal:General Member J Clarke
Place:Melbourne
Date: 3 March 2025
Decision:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 03 March 2025 at 11:01am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor not an Australian citizen – unlawful residence – adequately determined – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, ss 22, 106, 348
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 835.212, 835.213, 836.213, 836.321; rr 1.03, 1.15
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 18 March 2021 by a delegate of the Minister for Home Affairs to refuse to grant the applicants Other Family (Residence) (Class BU) Subclass 836 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 21 December 2020, the applicants applied for the visa. The first-named applicant (‘the applicant’) is the primary applicant, and the second-named applicant (‘the secondary applicant’) was included as a secondary applicant based on being a claimed member of the family unit of the primary applicant (her partner). Both visa applicants are nationals of Fiji.
At the time of application for the visas, 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 applicants are seeking to satisfy the criteria for the grant of Subclass 836 visas. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant. The primary criteria include cl 836.213, which is a time of application requirement. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The secondary criteria include cl 836.321, which is a time of decision requirement. The text of both provisions was extracted in the delegate’s refusal decision.
The applicants provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision).
The delegate refused to grant the visa to the applicant on the basis that she did not satisfy cl 836.213 of Schedule 2 to the Regulations. The delegate explained:
As the sponsor, Pita Ledua Kwock LEE is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen at time of lodgement, or at time of this decision the applicant does not meet clause 836.213.
The delegate explained further:
The Department undertook system checks on the eligibility of the sponsor and it was found that the sponsor was unlawful in Australia on the date the application was lodged.
The sponsor had previously held a Resident Return visa (subclass 155), which has a travel facility valid until 18 December 2013. The sponsor departed Australia on 18 February 2014 ceasing his permanent residency. The sponsor re-entered Australia on 6 March 2014 and was granted a Border visa (Subclass 773) on his arrival. The Border visa (subclass 773) was valid for temporary lawful stay for a period of 30 days. The Border visa (subclass 773) expired on 5 April 2014. The sponsor became an unlawful non citizen on the expiry of the Border visa (subclass 77) on 6 April 2014.
As Pita Ledua Kwock LEE departed Australia after the travel facility of his permanent resident visa had expired his permanent residency in Australia ceased. To date he has not applied to re-instate his permanent resident status in Australia.
The delegate refused to grant the visa to the secondary applicant because the delegate found that there was no evidence that he met the primary criteria and because the delegate found that he did not satisfy cl 836.321, which requires that, at the time of decision, he ‘continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa’.
In April 2021, the applicants applied to the Administrative Appeals Tribunal (AAT) for the review of the delegate’s refusal decision. The applicants were represented in relation to the review.
On 13 October 2024, the AAT was abolished. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 26 November 2024, the Tribunal invited the applicants to a video hearing to be held on 17 December 2024.
On 2 December 2024, Mr Ben Vevers, from the same firm as the applicants’ representative at the time, submitted the completed Response to Hearing notice. In this response, the boxes were ticked to indicate that both the applicant and the secondary applicant would attend the hearing and that they intended to rely upon unspecified documents at the hearing.
On 10 December 2024, Mr Ben Vevers wrote again to the Tribunal relevantly stating:
We are instructed by the review applicant that she does not wish to attend the hearing scheduled before the Tribunal on 17 December 2024.
We are further instructed that the review applicant seeks for the Tribunal to make a decision in this matter on the papers before it.
Subsequently, the hearing that had been scheduled was cancelled.
Later in the day on 10 December 2024, following direction from the presiding Member, the Tribunal wrote to the representative on the record stating:
The Tribunal has accepted your request for a decision on the papers. Accordingly, the hearing has been cancelled. The Member welcomes you to submit any submissions and evidence at any point until the Tribunal makes a decision.
On 17 February 2025, the Tribunal wrote to the then representative on the record requesting him to confirm the accuracy of the communication from Mr Vevers on 10 December 2024 and/or arrange for a change of representative form to be filed with the Tribunal if Mr Vevers is to be the representative on the record. The correspondence also stated that the Tribunal seeks clarification as to whether the secondary applicant has also requested the Tribunal to make a decision in this matter on the papers before it.
On 19 February 2025, the requisite paperwork was sent to the Tribunal informing the Tribunal that Mr Vevers had been appointed the representative and the authorised recipient in the matter.
On 25 February 2025, the Tribunal wrote to the representative (Mr Vevers) to note and thank him for the new Form MR5 that had been filed and to request clarification as to whether both the primary visa applicant and the secondary applicant have requested the Tribunal to make a decision ‘on the papers’ in this matter, that is, without a hearing.
Later that same day, the representative relevantly wrote to the Tribunal that, ‘[w]e have been instructed that a decision can be made on this matter (on the papers) for BOTH applicants’.
As at the date of this decision, the Tribunal has received no further submissions or evidence about the substantive matter.
The first issue for determination in this review is whether the Tribunal should proceed to decide the matter without holding a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances in which the Tribunal may reach its decision without a hearing. Section 106(3) states:
This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i)the decision is wholly in favour of the applicant; or
(ii)the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
Section 22 of the ART Act sets out the parties to a proceeding for review. For present purposes these are the applicant for the review and the decision-maker. Section 348A(1) of the Act provides, ‘[t]he Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act’.[1] Accordingly, the Tribunal is satisfied that s 106(3)(a) of the ART Act is met.
[1] ART Act is defined in s 5(1) as meaning the Administrative Review Tribunal Act 2024 (Cth).
The Tribunal is satisfied that the written response of 25 February 2025 can properly be construed as the applicants’ request for the Tribunal to decide the matter without holding a hearing. Accordingly, the Tribunal is satisfied that s 106(3)(b)(ii) of the ART Act is met and thus s 106(3)(b) is met.
This leaves the issue of whether s 106(3)(c) is met.
The Tribunal as presently constituted concurs with the following reasoning about s 106(3)(c) articulated by Senior Member G Cullen in the Tribunal’s decision in 2017740 at [16] that:
The Tribunal is of the view that in the context of s 106 and the statutory objectives of the ART, ‘adequately determined’ means that the Tribunal may make its decision without holding a hearing in the proceeding, thereby resolving the proceeding quickly, if it also appears to the Tribunal that this can be done in a fully sufficient or suitable manner based on all the evidence before it.
The Tribunal in the present case also concurs with Senior Member Cullen’s reasoning, at [15], that ‘[t]he Tribunal does not consider that “adequately determined” means a decision favourable to the applicant, as it if did, sub-paragraph 106(3)(b)(i), which contemplates a decision being made wholly in favour of the applicant, would be superfluous’.
So, can the issue for determination in the present proceeding be adequately determined in the applicant’s absence? The issues that the Tribunal is required to determine in this review are as follows:
·whether, at the time of application on 21 December 2020, the applicant satisfied cl 836.213;
·whether, at the time of application on 21 December 2020, the secondary applicant satisfied the primary criteria such as cl 836.213; and
·whether, at the time of this decision, the secondary applicant meets cl 836.321.
The Tribunal considers that it has sufficient information to adequately determine this issue in the absence of the parties to the proceeding. The Tribunal notes that it has a copy of both the Department’s file and the Tribunal’s file.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Subclass 836 (Carer) visa
Are the sponsorship requirements met?
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, is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen and usually is resident in Australia. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
The then representative’s letter of 10 December 2020 to the Department relevantly stated that ‘the sponsor is an Australian permanent resident and holder of a Resident Return Visa, Subclass 155’.
In the accompanying completed Form 47OF—Application for migration to Australia by other family members that is also on the Department’s file, the applicants identified Pita Ledua Lee as being the applicant’s father and the relative in Australia requiring the care. At question 58, when asked, ‘[i]s this person an Australian citizen, New Zealand citizen or Australian permanent resident?’, the ‘yes’ box was ticked.
In the accompanying completed Form 40—Sponsorship for migration to Australia that is also on the Department’s file, Mr Pita Ledua Lee declared that he was sponsoring his daughter (the applicant) and her partner (the secondary applicant). He declared that he was a citizen of Fiji, had been a permanent resident in Australia since 1 January 1980 and, when asked, at question 27, ‘[c]omplete only one of the following types of identification and attach certified documentary evidence’, he selected the field for ‘Visa Evidence number (Australian permanent resident)’ and gave details of a number and provided a copy of that visa label.
As noted earlier, the applicants provided the Tribunal with a copy of the primary decision which includes the information extracted earlier about the delegate’s findings that pursuant to information obtained from system checks on the eligibility of the sponsor, at the time of application on 21 December 2020, the sponsor was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen and thus cl 836.213 was not satisfied.
The applicants have not provided the Tribunal with any evidence that, at the time of application on 21 December 2020 or any time thereafter, the sponsor was and is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Therefore, the Tribunal finds that, at the time of application, the applicants were not sponsored as required by the legislation and accordingly do not satisfy cl 836.213.
The Tribunal also finds that, at the time of this decision, the secondary applicant does not meet the secondary criterion in cl 836.321. This is because, at the time of this decision, there is no evidence before the Tribunal that the primary applicant has satisfied the primary criteria for the grant of the visa and thus the Tribunal finds that the secondary applicant cannot meet cl 836.321 which requires that he ‘continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa’.
For the reasons above, the applicants do not meet the criteria for Subclass 836 visas.
All the documents on the Department’s file indicate that the applicants applied for Subclass 836 Carer visas. Notwithstanding, as is explained below, in respect of the other visa subclasses, there is no material which would permit a finding that either applicant meets prescribed criteria for the visa sought.
Subclass 835 (Remaining Relative) visa
The Tribunal has also considered whether the applicants may meet the requirements for Subclass 835 (Remaining Relative) visas.
The Tribunal finds that neither applicant is entitled to the grant of a Subclass 835 (Remaining Relative) visa because, at the time they applied for the visas on 21 December 2020, neither would have met requisite time of application requirements in cl 835.212 and cl 835.213 as the sponsor for the visa was Mr Pita Ledua Lee and, for the reasons given above, he was not at that time ‘an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen’ (for the purposes of the definition of ‘remaining relative’, as defined in reg 1.15(1) and as required to meet cl 835.212) and thus also not ‘a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen’ (for the purposes of cl 835.213(a)(ii)).
To conclude, at the time of this decision, there is no material which would permit a finding that either or both applicants meet the prescribed criteria for Subclass 835 (Remaining Relative) visas.
Subclass 838 (Aged Dependent Relative) visa
The Tribunal finds that neither applicant is entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence that either applicant is dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in reg 1.03. Therefore, cl 838.212 is not met.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Representative for the Applicant: Mr Ben Vevers (MARN: 1067816)