Tuilau-Ututaaloga (Migration)

[2018] AATA 3299

Tuilau-Ututaaloga (Migration) [2018] AATA 3299 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Silia Tuilau-Ututaaloga

CASE NUMBER:  1611924

DIBP REFERENCE(S):  CLF2015/38423

MEMBER:Kira Raif

DATE:17 July 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 17 July 2018 at 2:27pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Whether the applicant is the carer of an Australian relative – Where the sponsor has passed away – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 1, Item 1123B, Schedule 2, cls 836.213, 836.221, 836.227

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 20 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 applicant is a national of Samoa born in March 1960. She applied for the visa on 26 June 2015. 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 a carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. On 26 June 2018 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 17 July 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   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.

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.

   Whether the applicant is a carer

6. The applicant stated on the application form that she was a carer for her mother, Ms Olioli Tuilau. The applicant provided a number of documents with her application and to the Tribunal concerning the care arrangements. The applicant did not claim to be a carer for any other relative.

7. In March 2017 the applicant informed the Tribunal that Ms Olioli Tuilau had passed away on 7 March 2017. Having regard to this information, the Tribunal is not satisfied that the applicant is a carer to her mother and that the requirements of r. 1.15AA can be met at the time of this decision. The Tribunal is not satisfied the applicant is a carer of an Australian relative and she does not meet cl. 836.221.

8. Neither is the Tribunal satisfied that at the time of this decision, the applicant continues to be sponsored by an Australian relative or the spouse or de facto partner of an Australian relative as required by cl. 836.213. The Tribunal is not satisfied the applicant meets cl. 836.227.

9. The applicant is not old enough to be granted an aged pension and the Tribunal is not satisfied she is an aged dependent relative of an Australian relative. The applicant stated on the application form that she had several dependent children in Samoa. No evidence of their dependence has been presented with the application. The Tribunal finds that such relatives are ‘near relatives’ who are not resident in Australia. The Tribunal is not satisfied the applicant meets the criteria for the grant of the Remaining Relative visa.

   Conclusion

10. 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

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

    Kira Raif
    Senior Member