Home | Databases | WorldLII | Search | Feedback Administrative Appeals Tribunal of Australia

You are here: 

Doolan (Migration) [2024] AATA  1676  (24 April 2024)

Last Updated: 17 June 2024

Doolan (Migration)  [2024] AATA 1676  (24 April 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mrs Liana Doolan

VISA APPLICANTS: Mrs Kapiliela Maria Fiakata Tugaga
Mr Opeti Paulo Katoni
Miss Maria Elise Katoni

CASE NUMBER: 2012793

HOME AFFAIRS REFERENCE(S): OSF2018/031255

MEMBER: Kira Raif

DATE: 24 April 2024

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 24 April 2024 at 3:42pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – sponsored by visa applicant’s sister – person in need of care is their mother – member of the family unit of the resident – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cl 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 Home Affairs on 10 June 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The first named visa applicant (the visa applicant) is a national of Fiji, born in October 1975. She applied for the visa on 16 January 2018. The application includes her family. 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 a 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 24 April 2024 to give evidence and present arguments. 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 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 (Cth) (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 reg 1.15AA of the Regulations. Regulation 1.15AA(1)(b) relevantly requires that a Carer certificate states that the Australian relative (resident) or a member of the family unit has a medical condition.
6. The term ‘member of the family unit’ is defined in r. 1.12 and includes a spouse or de facto partner of the family head, a child or step-child and a dependent child of a child.

Is the applicant a carer of an Australian relative?

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was sponsored by her sister Liana Doolan, who is an Australian citizen. The visa applicant stated that the person with the condition, and a person in relation to whom the Carer certificate was issued, is their mother Ms Malina Tugaga. The delegate noted that Ms Tugaga was not a spouse or a child of the family head and was not a member of the family unit of Ms Doolan.
8. Ms Doolan provided a statement to the Tribunal dated 9 August 2020. She states that Ms Tugaga is 82 years of age and requires a full-time carer and the visa applicant wants to enter Australia to provide full-time care to Ms Tugaga while the sponsor will be covering all the costs for the visa applicant. Ms Doolan states that she is unable to provide care to her mother. The review applicant subsequently provided copies of Immigration notification in relation to another visa application made by the visa applicants.
9. In April 2024 Ms Doolan informed the Tribunal that she has become a carer for her partner. In oral evidence Ms Doolan also told the Tribunal that her mother does not want to go into a nursing home and wants to be taken care of at home and she hopes her sister can travel to Australia to look after their mother. Ms Doolan described her mother’s needs and states that the present level of care that is provided by carers is not sufficient.
10. The Tribunal finds that the visa applicant was sponsored by her sister Ms Doolan. The Tribunal finds that the Australian relative is the visa applicant’s sister. The Carer certificate which accompanied the application relates to Ms Malina Tugaga who is the mother the visa applicant and the sponsor.
11. As the person in need of care is not the resident, she must be a member of the family unit of the resident. Regulation 1.12 defines the term ‘member of the family unit’ and that definition does not include a parent. As Ms Malina Tugaga is the parent of Ms Doolan, she does not meet the definition of ‘member of the family unit’ of the resident.
12. The Tribunal is not satisfied that it is the Australian relative (resident) or a member of the family unit who has the relevant medical condition to which the certificate relates. The Tribunal is not satisfied the visa applicant meets the requirements of r. 1.15AA(1)(b). She is not a ‘carer’ as defined in r. 1.15AA for the purpose of cl. 116.221. The Tribunal is not satisfied the visa applicant meets that provision. The secondary applicants do not meet cl. 116.321.
13. The visa applicant is not old enough to be considered an Aged Dependent relative. The review applicant told the Tribunal that there are other siblings residing in Fiji and other countries. The Tribunal is not satisfied the visa applicant meets the definition of the term ‘remaining relative’.
14. The Tribunal acknowledges the review applicant’s evidence about her mother’s medical condition and incapacity and the inadequacy of paid carer services. However, having found that the visa applicant does not met one of the requirements for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

Conclusion

15. 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

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

Kira Raif
Senior Member