Vali (Migration)

[2018] AATA 3352

Vali (Migration) [2018] AATA 3352 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VAGI NORMAN VALI

Ms LOHIA VALI

Miss SILVIA MERCY VALI

MISS VICTORIA MAIA VALI

CASE NUMBER:  1605170

DIBP REFERENCE(S):  CLF2015/38070

MEMBER:Kira Raif

DATE:25 June 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 25 June 2018 at 9:37am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – Practice and procedure – Information not provided – No relevant carer certificate issued – Did not appear before the Tribunal – Decision made on review – Decision under review affirmed.

LEGISLATION
Migration Act 1958, ss 65, 362B, 379A
Migration Regulations1994, r 1.15AA Schedule 1 Item 1123B Schedule 2 cls 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 30 March 2016 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under 65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of the PNG. The first named applicant ('the applicant') applied for the visa on 25 June 2015. The application includes his partner and children. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the visa applicant was the carer of an Australian relative. The applicants seek review of the delegate's decision.

3. On 6 April 2018 the Tribunal wrote to the review applicants 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 applicants to give evidence and present arguments at a hearing on 24 April 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.

4. The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were 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 applicants to appear before it.

   Relevant law

5. 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.

6. 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

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the applicant provided with his application evidence of having contacted BUPA for a Carer Certificate but he failed to provide such a certificate. As a result, the delegate was not satisfied that the relevant impairment rating was assigned to the resident, the applicant's father.

8. The Tribunal wrote to the applicants in March 2018 inviting them to provide the Carer       . certificate. The applicant has not done that. The Tribunal invited the applicants to attend a hearing and the applicants did not appear. The applicants subsequently provided to the Tribunal evidence of having applied for a Carer certificate on 27 April 2018. It is inexplicable, in the Tribunal's view, that the applicants, who are represented in this review, had only made the application for the certificate at that time, given that the delegate requested the certificate

   in January 2016 and the Tribunal made the same request in March 2018 and the applicants were clearly well aware of the issues that arise on review.

9. Nevertheless, the Tribunal granted the applicants time to obtain the Carer certificate and several extensions of time have been granted. The applicants provided to the Tribunal a number of medical reports and evidence of having applied for a Carer certificate, but not the certificate itself. There is no indication before the Tribunal that the process is still ongoing or that the applicants need more time to obtain the certificate. The applicants have not sought any further extension of time to complete the process and obtain the certificate.

10. On the evidence before it, the Tribunal is not satisfied that the relevant Carer certificate has been issued. The Tribunal is not satisfied the visa applicant meets r. 1.15AA(1)(b) and (c). The Tribunal finds that the applicants do not meet cl. 836.221 and the secondary applicants do not meet cl. 836.321.

11. The visa applicants are not old enough to be granted an aged pension and they do not meet the requirements for the grant of the Aged Dependent Relative visa. The visa applicants stated on the application form that they have several relatives in the PNG and the Tribunal is not satisfied they meet the requirements for the grant of the Remaining Relative visa.

    Conclusion

12. 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

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

    Kira Raif
    Senior Member