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Bivolaru, Gheorghe [2001] MRTA  1692  (26 April 2001)

Last Updated: 14 June 2001

 [2001] MRTA 1692 

CATCHWORDS: Review of visa refusal - Subclass 806 - inability to provide Assurance of support.

VISA APPLICANT: Gheorghe Bivolaru

REVIEW APPLICANT: As above

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Janis Butt

MRT FILE NUMBER: 0006065

DIMA FILE NUMBER: Q98/3034

DATE OF DECISION: 26 April 2001

AT: Canberra

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa.

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 Multicultural Affairs (the delegate). Mr Gheorghe Bivolaru (the visa applicant), a national of Romania, born on 29 May 1958, applied for a Change in Circumstance (Residence) (Class AG) visa on 12 October 1999 (D1, f. 54-55). The delegate's decision to refuse to grant the visa was made on 23 October 2000 (D1, f. 117-121).

JURISDICTION AND STANDING

2. The visa applicant lodged an application for review to the Tribunal on 14 November 2000 (T1, f. 50-54). The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to DIMA for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria, policy and other materials immediately relevant to this review are:

Legislation:

Clause 806.212 of Schedule 2 to the Regulations

Regulation 1.15AA - Interpretation - Carer

Division 2.7 - Assurances of support

Policy:

Procedures Advice Manual 3: Generic Guidelines A - (All visas)

Procedures Advice Manual 3: Subclass 806 (Commentary on prescribed criteria).

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

EVIDENCE

7. The Tribunal has the following documents:

T1 - MRT case file A00/06065, folio numbered 1-91.

D1 - DIMA file Q98/3034, folio numbered 1- 127.

8. The visa applicant entered Australia on a subclass 673 Close Family (Short Stay) visa 17 September 1992. On 5 November 1993 the visa applicant was granted a further subclass 673 Close Family (Short Stay) visa. On 31 December 1996 the visa applicant was granted a subclass 676 Tourist (Short Stay) visa and on 7 April 1997 the visa applicant was granted a subclass 686 Tourist (Long Stay) visa. On 29 July 1997 the visa applicant was granted a further subclass 686 Tourist (Long Stay) (T1, f. 92-99).

9. The visa applicant was granted another subclass 676 Tourist (Short Stay) visa on 6 April 1999 and on 12 July 1999 the visa applicant was granted a subclass 686 Tourist (Long Stay) visa. On 12 July 1999 and 12 October 1999, the visa applicant was granted Bridging A visas. On 10 January 2000, the visa applicant was granted a Bridging B visa (T1, f. 92-99).

10. Around 1998, the visa applicant applied to the Australian Embassy in Bonn for a subclass 309 Spouse visa on the basis of his marriage on 3 October 1997 to an Australian citizen, Mrs Anne Cervo, a resident of Brisbane. The visa applicant arrived in Australia on 11 April 1999 on a subclass 676 visitor visa with the intention of visiting his wife who was terminally ill with cancer. However, when he arrived in Australia, he found that his Australian citizen mother was in poor health and he began to care for her as well as visit his wife in hospital. On 7 September 1999, the visa applicant's wife died.

11. Currently the visa applicant is seeking to remain permanently in Australia to care for his ill mother. A medical report on file indicates that he "has proven himself able and willing to provide the 24 hour care his mother needs" (T1, f.47). The visa applicant applied for a Change in Circumstance (Residence) (Class AG) visa on 12 October 1999. The visa applicant has two brothers in Australia but they have demonstrated that they are unable to care for their mother. One went to gaol in 1998 and the other has proven to be an ineffective carer (T1, f.47).

12. A letter from the Ascot Clinic dated 15 September 1999 states:

Mrs Bivolaru has been [sic] my patient since January 1997. She has insulin dependent diabetes and multi-infarct dementia secondary to cerebrovascular disease. The diabetes has resulted in diabetic nephropathy with protienuria and a mild sensory neuropathy. She also has some diabetic retinopathy and cataracts and as a result she is blind in her right eye and has poor vision in her left eye (D1, f. 41).

13. The delegate stated that the particular visa sought by the visa applicant, the Subclass 806 visa, was not granted on the basis that:

Requirement 806.222 must be met for all categories of Family subclass. The applicant's migration agent sent a letter to the Department (folio 115) informing that the applicant is unable to provide the required Assurance of Support. Therefore applicant can not satisfy criterion 806.222 and subsequently criteria for grant of any component of Family subclass (D1, f. 117).

14. The visa applicant stated when lodging the application for review in a submission from his agent that:

Mr Bivolaru has no income. He has survived since April 1999 on a pension ... that has just ceased ... He now lives off the pension of his mother...This is their only income...He cannot work as he is a full-time carer.

Mr Bivolaru acknowledges that he cannot meet prescribed criteria for the grant of a Carer visa....The criteria that could not be met at the primary stage was the provision of a Required Assurance of Support. It remains the case that a Required Assurance of Support cannot be provided, and thus a visa cannot be granted by the MRT...(T1, f. 91).

It was our intention to seek the exercise of Ministerial discretion under s351 of the Migration Act in this case. Mr Bivolaru has apparently met all criteria except the required AOS and he has strong support for his application to the Minister. He is suffering extreme financial hardship as he provides almost total care to his elderly mother.... we therefore request that the MRT bypass its usual processes and provide a decision as quickly as possible so that we may proceed with the application for Ministerial discretion...(T1, f. 90-91).

FINDINGS AND REASONS

15. Particulars of the application for the Subclass 806 visa by the applicant together with all supporting documents may be found in the Department file that was submitted to the Tribunal pursuant to section 352 of the Act. In coming to its decision the Tribunal has had regard to the contents of the files and to the documents lodged in the course of this review. As the visa applicant has given his consent to his application being decided without a hearing, the Tribunal is able to make a decision on the papers under s. 360(2)(b) of the Act.

16. At the time the visa application was lodged, Class AG contained the following subclasses: Subclass 802 (Child), Subclass 804 (Aged parent), Subclass 806 (Family) and Subclass 833 (Certain unlawful non-citizens). The only subclass in respect of which any claims have been advanced is Subclass 806. There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.

17. One criterion for the grant of a Subclass 806 visa is clause 806.222 that provides:

806.222 An assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

18. The visa applicant must meet this criterion to be granted a Subclass 806 visa. The Tribunal finds that, on the basis of the material before it, that the visa applicant cannot supply an assurance of support and that he is, therefore, unable to meet clause 806.222.

DECISION

19. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa.