Tuqiri (Migration)

[2021] AATA 2044

Tuqiri (Migration) [2021] AATA 2044 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Adi Pei Tuqiri

CASE NUMBER:  1824591

HOME AFFAIRS REFERENCE(S):          CLF2017/33135

MEMBER:Andrew McLean Williams

DATE:8 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 08 June 2021 at 2:42pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – care provided by Australian resident relatives – no evidence provided why one relative is unable to provide care – care from service providers – care plan with service provider now in place – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(a), (e)(i), (ii), Schedule 2, cls 836.212, 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 Home Affairs on 3 August 2018, refusing to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 28 April 2017. 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’).

3. 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 836.221

4. The delegate refused to grant the visa on the basis that cl 836.221 was not met, because of each of the following:

   ·The applicant did not provide evidence to confirm her claimed status as the niece of the Australian resident Tavaita Velerau Tuqiri (‘the Australian resident’), in satisfaction of regulation 1.15AA(1)(a);

   ·The applicant did not provide satisfactory evidence from each of the Australian resident’s other relatives in Australia to show why each of them now cannot provide reasonable assistance to the Australian resident, in satisfaction of regulation 1.15AA(1)(e)(i);

   ·The applicant did not provide evidence to show why the assistance needs of the Australian resident could not reasonably be provided by welfare, hospital, nursing or community services in Australia, as required by regulation 1.15AA(1)(e)(ii);  

5. A hearing in this matter was originally scheduled by the Tribunal to be held on 15 June 2021.  On 8 June 2021 the Tribunal received correspondence from the applicant dated 7 June 2021 in which she indicated that she wished for the Tribunal to proceed and make a decision ‘on the papers’, without the need for the holding of a hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can satisfy the requirements of clause 836.221 in Schedule 2 of the Migration Regulations.

   Whether the applicant has claimed to be the ‘carer’

8. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In order to be a carer, a number of elements need to be satisfied:

9. Firstly, the applicant must be a relative of the Australian resident.  In the present case, the visa application was made on the basis that the applicant is the carer for her aunt, Ms Tavaita Velerau Tuqiri, who is an Australian resident.

10. The applicant has provided a copy of a family tree diagram, and explains that Tavaita Velerau Tuqiri was married to her late uncle, the brother of her father.  I am satisfied that this affords sufficient satisfactory evidence that the applicant is the niece by marriage of Tavaita Velerau Tuqiri, who is now the Australian resident seeking to have the applicant as her carer.

11. Therefore, at the time of application the applicant satisfies the requirements of clause 1.15AA(1)(a).

12. Next, in order to qualify as a carer, regulation 1.15AA(1)(b) & (c) must also be satisfied, in that the Australian resident must have a ‘medical condition’ that gives rise to an ‘impairment’ requiring care and assistance that will then be an ongoing requirement for at least  a further two years, which has been assessed on the impairment tables to rate at least 30.  In this case there is satisfactory evidence that Tavaita Velerau Tuqiri has a medical condition that has received a rating of 40, and that she will require ongoing assistance with the activities of daily living. 

13. Regulation 1.15AA(1)(d) is not applicable in this instance.

14. Pursuant to regulation 1.15AA(1)(e)(i), the applicant must provide evidence to show that that the care and assistance requirements of Tavaita Velerau Tuqiri are unable to be provided by any other relatives who are resident in Australia. 

15. On Form 470F the applicant has specified six (6) other relatives of Tavaita Velerau Tuqiri now resident in Australia: Josaia Tuqiri, Penaia Tuqiri, Adi Tuqiri, Tavaita Tuqiri (Jnr), Joshua Tuqiri and Dale Tuqiri. 

16. The evidence produced to the Tribunal regarding the inability of each of these other relatives in Australia to now care for Tavaita Velerau Tuqiri is as follows:

    ·Joshua Tuqiri resides at the same address as Tavaita Velerau Tuqiri.  Despite that, he says that he is working full time and cannot be available whenever his grandmother might require him;

    ·Ratu Tuqiri lives at Forest Lake and cannot be available to assist Tavaita Velerau Tuqiri in her home, which is at Runcorn;

    ·Josaia Tuqiri lives in Banksia NSW and Tavaita Velerau Tuqiri does not wish to relocate to live with him and his family in NSW.

    ·Dale Tuqiri also lives with Tavaita Velerau Tuqiri.  She claims to be unable to care for her grandmother by reason that she is a full-time student and does not have a drivers licence.

    ·Adi Tuqiri lives and works on Thursday Island, and hence cannot look after Tavaita Velerau Tuqiri.

    ·Ratu Penaia Geoffrey Tuqiri works full-time and has existing carer commitments for his in-laws;

    ·There does not appear to be any evidence before the Tribunal from Tavaita Tuqiri (Jnr), to now show why she cannot reasonably provide care assistance to Tavaita Velerau Tuqiri (Snr).

17. Given the absence of evidence as to why Tavaita Tuqiri (Jnr) is unable to provide assistance towards the care of Tavaita Velerau Tuqiri, the Tribunal cannot be satisfied in the manner required in relation to the matters specified in regulation 1.15AA(1)(e)(i) in Schedule 2 of the Regulations.

18. Regulation 1.15AA(1)(e)(ii) then requires that the assistance requirements of Tavaita Velerau Tuqiri cannot reasonably be obtained via either welfare, hospital nursing or community services, in Australia.  There are now care plans for Tavaita Velerau Tuqiri prepared by ‘KinCare’, which indicate that Tavaita Velerau Tuqiri has approval for a Level 2 Living Care package, as well as for gardening assistance.  In light of this evidence, regulation 1.15AA(1)(e)(ii) is not satisfied by the applicant.

19. 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

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

    Andrew McLean Williams
    Member