Villarobe (Migration)

[2019] AATA 1377

Villarobe (Migration) [2019] AATA 1377 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Evangeline Villarobe

CASE NUMBER:  1622581

DIBP REFERENCE(S):  CLF2016/4060

MEMBER:Kira Raif

DATE:2 January 2019

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 02 January 2019 at 10:27am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of the Australian relative – relative of an Australian resident – applicant left the sponsor’s family unit – applicant’s ongoing relationship with another person – no further joint residence – separated finances – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1 Item 1123B; Schedule 2 cls 836.221; r 1.15

CASES

Xiang v MIMIA [2004] FCAFC 64

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 12 December 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 visa applicant is a national of the Philippines, born in February 1979. She applied for the visa on 18 January 2016. 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 the Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and friends. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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. 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.

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. The issue in the present case is whether the applicant is a carer of the Australian relative.

   Whether the applicant is a carer

6. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

7. The primary decision record indicates that on 6 December 2016 the Department received advice from the sponsor that the applicant left the family unit and no longer resided with the sponsor. The delegate wrote to the applicant seeking her comments on that information. The applicant replied by provided an affidavit in which she stated that she and her husband had separated in 2015 but had been living under one roof. She states that from 2016 she had left the family home because she had experienced abuse and threats from the sponsor and believed him to be dangerous. The applicant states that she had to leave the sponsor and had approached the police Family Violence Unit for help. The applicant stated that she was seeking an Intervention Order from the court. The delegate concluded that the applicant was not able to meet r. 1.15AA(f).

8. On 20 December 2018 the applicant provided to the Tribunal  a declaration from a friend who refers to the applicant having an ongoing relationship with another person from 2016, a letter from the real estate confirming cohabitation with Mr Raymond Abas from December 2016 and the applicant’s superannuation form nominating Mr Abas as a beneficiary. Neither the applicant nor her migration agent presented any written arguments or submissions to explain the relevance of the presented evidence.

9. When making the application, the applicant stated on the application form that she was the carer of Mr Brian Nicholls. The Tribunal finds that the applicant claimed to be the carer of Mr Nicholls. There is a copy of the marriage certificate and the Tribunal finds that at the time of the application, Mr Nicholls was the husband, and a relative of the applicant. However, the applicant’s evidence is that at the time of this decision, she is no longer in a relationship with Mr Nicholls. Her evidence is that she has not had a relationship with the sponsor since 2015 and they had not lived together since 2016. The applicant’s evidence to the delegate is that since at least 2016 she and Mr Nicholls had separated their finances and had not maintained a joint household and she also informed others about the relationship breakdown. The Tribunal finds that at the time of this decision, none of the indicia of a genuine relationship set out in r. 1.15A are met. The applicant’s evidence to the Tribunal is that she is in another relationship, so that any relationship between the applicant and Mr Nicholls would not be to the exclusion of all others. The applicant confirmed in oral evidence to the Tribunal that she is no longer in a relationship with Mr Nicholls. The Tribunal finds that at the time of this decision, the applicant is no longer the spouse of Mr Nicholls. There is no suggestion that she is otherwise a relative of the sponsor. The Tribunal is not satisfied that at the time of this decision, the applicant is a relative of the resident. The Tribunal is not satisfied the applicant meets r. 1.15AA(1)(a).

10. The applicant told the Tribunal in oral evidence that she used to help Mr Nicholls in the past but they have now separated. She said she could not provide care to the sponsor because the sponsor was abusive and there was an Intervention Order in place. The applicant agreed that she was no longer willing and able to provide assistance to the sponsor as she is now in a new relationship. The Tribunal is not satisfied that at the time of this decision, the applicant is willing and able to provide the requisite care. The applicant does not meet r. 1.15AA(1)(f).

11. The Tribunal is not satisfied that at the time of this decision, the applicant is a carer of another person. She does not meet cl. 836.221.

12. The applicant is not old enough to be granted the aged pension and she is not an Aged Dependent Relative of an Australian relative. The applicant stated on the form that her parents and one sibling reside in the Philippines. The Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.

    Conclusion

13. 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

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

    Kira Raif
    Senior Member