Toscano (Migration)

[2023] AATA 3513

Toscano (Migration) [2023] AATA 3513 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daniele Toscano
Mrs Ana Filipa Cardoso Infante

REPRESENTATIVE:  Ms Pina Careri, migration agent

CASE NUMBER:  1922394

HOME AFFAIRS REFERENCE(S):          CLF2018/194816

MEMBER:Michael Ison

DATE:13 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2023 at 3:34pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor withdrew his sponsorship of the applicants – applicants have left Australia and at the time of this decision have not returned –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.213, 836.227, 836.411

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 31 July 2019 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The first named applicant in this review is Mr Daniele Toscano who is 42 years of age and is a national of Italy. Mr Toscano is referred to as the applicant or the first named applicant in these reasons for decision.

3. The applicant first arrived in Australia on 31 January 2017 as the holder of an E-Visitor (Class TV) (Subclass 651) visa that was valid to 24 February 2017.

4. On 24 February 2017 the applicant was granted a Student (Class TU) (Subclass 500) visa that was valid to 8 September 2018.

5. On 6 September 2018 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) Carer visa while in Australia on the basis the applicant is a relative of his sponsor, Mr Girolamo Toscano, who is the applicant’s father. Mrs Ana Filipa Cardoso Infante was included in this Subclass 836 Carer visa application as a member of the family unit of the applicant.

6. Mrs Cardoso Infante is referred to as the second named applicant or the secondary applicant in these reasons for decision.

7. Mr Girolamo Toscano is 70 years old and had Australian citizenship conferred on 1 June 2011. Mr Girolamo Toscano is referred to as the sponsor in these reasons for decision.

8. At the time of applying for the Subclass 836 Carer visa on 6 September 2018 the applicant was also granted a Bridging A (Class WA) (Subclass 010) visa that was valid to 28 November 2018.

9. On 28 November 2018 the applicant was granted a second Bridging A visa. On 3 September 2019 the applicant departed Australia and his Bridging A visa ceased upon his departure.

   The primary decision of a delegate of the Minister

10. The applicant provided the Tribunal with a copy of the primary decision. The applicants applied for the visas on 6 September 2018. 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.

11. Clause 836.213 of Schedule 2 to the Regulations relevantly requires for present purposes that the primary visa applicant, in this case the first named applicant, is sponsored by an Australian relative who has turned 18, is a settled Australian citizen and is usually resident in Australia.

12. Clause 836.227 requires that the sponsorship mentioned in cl 836.213 has been approved by the Minister and is still in force.

13. The delegate refused to grant the visas on the basis that cl 836.227 was not met because the delegate was not satisfied at the time of their decision that the first named applicant was sponsored by his father Mr Girolamo Toscano as the first named applicant’s Australian relative. The Department had received correspondence from Mr Girolamo Toscano advising he withdrew his sponsorship of the applicants visa applications and wanted to have nothing to do with the first named visa applicant, his son.

    The Tribunal hearing

14. The applicant and the second named applicant were invited to appear before the Tribunal on 13 September 2023 to give evidence and present arguments, by video.

15. The applicants were represented in relation to the review by their migration agent, Ms Pina Careri. Ms Careri is referred to in these reasons as the applicants’ representative or the representative.

16. On 21 August 2023 the representative sent the Tribunal a completed ‘Response to hearing invitation form’ that stated the applicants and the representative would attend the hearing by video and provided contact telephone numbers for the applicants.

17. On the time and date of the hearing a Tribunal officer attempted to contact the applicants on multiple occasions before and after the scheduled start time of the hearing. Neither applicant answered their telephones. The representative also did not answer the first attempts to contact her before and after the scheduled commencement time of the hearing.

18. At 1.42pm Australian Eastern Standard Time the representative answered the Tribunal officer’s telephone call and advised that the applicants had left Australia after the delegate’s decision to refuse their visa applications and had ceased all contact with the representative since their departures.

    Tribunal decision

19. The Tribunal has had regard to all of the information in the written submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicants applications for the Subclass 836 Carer visas, the documents provided to the Department in support of those applications and copies of communications between the Department and the applicants. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether at the time of the Tribunal’s decision the applicants are sponsored by Mr Girolamo Toscano as required by cl 836.227 of Schedule 2 to the Regulations.

    Are the sponsorship requirements met at time of application?

22. 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. The term ‘Australian relative’ is defined in cl 836.111 as meaning a relative of the primary applicant who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

23. On the evidence before the Tribunal, the Tribunal finds that at the time the applicants applied for the Subclass 836 visas the first named applicant’s father, Mr Girolamo Toscano, had sponsored their applications for the Subclass 836 Carer visas.

24. The Tribunal further finds, based on information provided in support of the visa applications, that at the time of application for the visas Mr Girolamo Toscano was:

    ·an Australian citizen;

    ·the father of the first named applicant;

    ·an ‘Australian relative’ of the first named visa applicant;

    ·over 18 years of age;

    ·a settled Australian citizen;

    ·usually resident in Australia.

25. This means that at the time of application for the Subclass 836 Carers visas the applicant was sponsored by an adult Australian relative and met the requirements of cl 836.213(a) of Schedule 2 to the Regulations.

    Are the sponsorship requirements met at the time of this decision?

26. As noted above, cl 836.227 requires the sponsorship of the first named applicant to still be in force at the time of the Tribunal’s decision on the visa application. The primary decision records that Mr Girolamo Toscano withdrew his sponsorship of the applicant’s application for the Subclass 836 Carer visa on 13 May 2019.

27. There is a detailed and complex interpersonal history between the applicant and the sponsor which the Tribunal does not need to reproduce in these reasons. The applicant has not contested that his father, the sponsor, has withdrawn his sponsorship of the applicant’s Subclass 836 Carer visa application. The Tribunal finds that the sponsor, being the applicant’s father Mr Girolamo Toscano, withdrew his sponsorship of the applicants’ visa applications on 13 May 2019.

28. There is no evidence before the Tribunal that the sponsor has changed his mind since withdrawing his sponsorship and has since then agreed to sponsor the applicants visa applications again. There is no information before the Tribunal that any other Australian relative has agreed to sponsor the applicants’ applications for the Carer visas. The Tribunal finds that at the time of this decision the applicants’ applications for the Subclass 836 visas are not sponsored as required by clause 836.227 of Schedule 2 to the Regulations.

    Conclusion – first named applicant Mr Daniele Toscano

29. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 836 visa.

    CONCLUSION SECONDARY APPLICANT – MRS ANA FILIPA CARDOSO INFANTE

30. As the first named applicant does not meet the primary criteria for the grant of a Subclass 836 Carer visa this means the second named applicant does not meet the secondary criteria in cl 836.321 for the grant of a secondary (or dependent) Subclass 836 Carer visa. This is because at the time of this decision the second named applicant is not the member of the family unit of a person, being the first named applicant, who satisfies the primary criteria for the grant of a Subclass 836 visa.

31. There is no information before the Tribunal that the second named applicant seeks to be granted a Subclass 836 Carer visa as a primary applicant or that she can meet the criteria for the grant of a Subclass 835 Remaining Relative visa or a Subclass 838 Aged Dependent Relative visa either as a primary or secondary applicant.

32. For the reasons above, the Tribunal finds that the second named applicant does not meet the primary or secondary criteria for the grant of a Subclass 836 visa.

    Other visa subclasses

33. Visa class BU also contains two other subclasses of visa in addition to Subclass 836: Subclass 835 Remaining Relative visa and Subclass 838 Aged Dependent Relative visa.

34. 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 reg 1.15(2), reside in the same country as the applicant. The applicant’s application for the Carer visa states that the applicant’s 69-year-old mother and his 48-year-old sister remain resident in Italy. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet the requirements of cl 835.212 of Schedule 2 to the Regulations.

35. The evidence before the Tribunal is that the applicant was born on [day deleted] of February 1981 and is 42 years of age. 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 (Cth). Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.

    Other matters

36. The applicant’s representative has advised the Tribunal that the applicants have left Australia and at the time of this decision have not returned. The Tribunal accepts this submission.

37. Clause 836.411 of Schedule 2 to the Regulations provides that it is a requirement for the grant of a Subclass 836 Carer visa that the applicant must be in Australia when the visa is granted. While the applicants’ absence from Australia was not a, or the, determinative issue in the delegate’s primary decision or in this decision of the Tribunal, their absence from Australia means that even if the sponsor had agreed to resume sponsorship of their applications for the Carer visas the applicants’ could not be granted those visa until and unless they returned to Australia.

    DECISION

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

    Michael Ison
    Senior Member