Wang (Migration)

[2019] AATA 3033

Wang (Migration) [2019] AATA 3033 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zhenshui Wang

VISA APPLICANTS:  Ms Baoping Huang
Mr Zhihua Huang
Mr Lichao Huang

CASE NUMBER:  1707278

HOME AFFAIRS REFERENCE(S):          2013024820

MEMBER:Kira Raif

DATE:31 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 31 May 2019 at 1:55pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – carer for brother in law – brother in law not ‘relative’ within meaning of r 1.03 – applicant not remaining relative of sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.212, 116.221

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 Immigration and Border Protection on 15 March 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (‘the visa applicant’) is a national of China, born in January 1963. She applied for the visa on 18 October 2013. The application includes her spouse and child. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant was able and willing to provide the requisite care and found that she was not the carer of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the reconsideration decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.

5. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations.

   Whether the visa applicant is a ‘carer’

6. The visa applicant claimed on the application form that she was a carer for Mr Zhenshui Wang, who was her brother in law. The visa applicant provided with her application evidence of her sibling relationship with Qing Yin Susanna Huang and a marriage certificate evidencing the marriage of Ms Huand and the sponsor, Mr Zhen Shui Wang. The Tribunal finds that the sponsor Mr Wang is the spouse of the visa applicant’s sister and is the visa applicant’s brother in law. The Tribunal finds that the applicant claimed to be the carer of Mr Wang. However, as a brother in law, the Tribunal finds that Mr Wang is not a ‘relative’ of the applicant within the meaning of r. 1.03.

7. In his submission to the Tribunal of 24 April 2019, the review applicant confirms that the primary visa applicant is the sister of his wife who is the relative of the visa applicant. The Tribunal acknowledges that the sponsor’s wife is a ‘relative’ of the visa applicant but the relationship must exist between the visa applicant and the person she claimed to be a carer of. The review applicant states that the sponsorship in the original application was a ‘co-sponsorship’ by himself and his wife. The review applicant notes that both he and his wife signed the sponsorship form 40 and his wife also provided a statutory declaration to confirm her role as a sponsor.  The review applicant repeated this claim in his submission of 31 May 2019. In the Tribunal’s view, this submission (which is relevant to cl. 116.212) does not overcome the fact that the visa applicant claimed to be a carer of a person who was not her relative (for the purpose of cl. 116.211). On the application form the visa applicant stated she was a carer for Mr Wang and there is nothing on the form allowing (nor does the legislation provide for) a claim to be a carer of multiple relatives.

8. In his submission to the Tribunal of 31 May 2019 the applicant noted that cl. 116.212 allows for a sponsorship to be done by a relative or the spouse of a relative. The review applicant claims that in this case, both he and his wife signed the forms and there was ‘joint’ sponsorship. While it is not clear that the legislation allows for a joint sponsorship, the Tribunal accepts that it does allow for the sponsorship to be done by a relative or a spouse of the relative. However, the Tribunal’s concern is with the relationship required by cl. 116.211 and not the sponsorship requirement in cl. 116.212. As noted above, cl. 116.211 requires the applicant to claim to be a carer of an Australian relative and in this case, the Tribunal is not satisfied that the applicant claimed to be a carer of an Australia relative, as required by cl. 116.211. The visa applicant does not meet that provision.

9. Further, the definition of ‘Carer’ in r. 1.15AA(1)(a) requires the applicant to be a relative of the resident. In this case, the resident has been identified as Mr Wang and the Tribunal is not satisfied that the applicant is a relative of Mr Wang. She does not meet the definition of ‘carer’ and cl. 116.221.

10. The Tribunal is not satisfied the visa applicant meets cl. 116.211 and cl. 116.221. The secondary applicants do not meet cl. 116.321.

11. The review applicant states in his submission to the Tribunal that there is a genuine need for a carer as his wife cannot care for him. The Tribunal has not considered whether the visa applicant meets the remaining criteria relevant to the definition of the term ‘carer’ because the Tribunal has formed the view that she cannot meet the requirements of cl. 116.211.

12. The visa applicant stated on the application form that her husband’s father and two siblings reside in China. The Tribunal finds that the visa applicant has near relatives other than those living in Australia. The Tribunal is not satisfied the visa applicant is a remaining relative of the sponsor. The visa applicant was born in 1963 and is not old enough to be granted the Aged Pension. She does not meet the requirements for the grant of the Aged Dependent Relative visa.

13. The applicant provided to the Tribunal his updated medical evidence and explained the need for a carer. The Tribunal accepts that evidence. The review applicant’s representative also states in his submission to the Tribunal that if the application was ineligible, it should have been assessed as invalid and the fact that it has progressed to the decision indicates that it is a valid application and met the criteria at the time of the application. With respect, the Tribunal finds that submission misguided. There is no suggestion that the application was invalid. The Tribunal acknowledges that the application was validly made. However, the validity of the application cannot in any way be considered as an indication that the applicant has met the criteria at the time of application. The representative also submits that the delegate did not raise any concerns other than the visa applicant’s capacity to undertake care (as required by r. 1.15AA(f) and the Tribunal’s consideration should be limited to that provision. The Tribunal does not accept that this is so. The Tribunal on review has all the powers of the primary decision-maker and is able to consider any provision, whether or not it formed the basis of the primary decision.

    Conclusion

14. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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

15. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member