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1210526 [2013] MRTA  1690  (17 July 2013)

Last Updated: 8 August 2013

1210526  [2013] MRTA 1690  (17 July 2013)

DECISION RECORD

APPLICANTS: Mr Sosefo Tomasio Sakopo
Ms Sina Muller
Master Joseph William Isitolo Sakopa

MRT CASE NUMBER: 1210526

DIAC REFERENCE(S): CLF2011/165626

TRIBUNAL MEMBER: Catherine Carney-Orsborn

DATE: 17 July 2013

PLACE OF DECISION: Sydney

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

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 Citizenship to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
2. The review applicants applied to the Department of Immigration and Citizenship for the visa on 26 September 2011. At the time the visa application was lodged, 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 review 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.836.212.
3. The delegate refused to grant the visas on 27 June 2012 on the basis that cl.836.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the review applicant (the applicant) did not provide a Carer Visa Assessment Certificate for the person with the medical condition.
4. On 18 July 2012 the applicant lodged an application for review with the Migration and Refugee Tribunal. Attached to that application was a copy of the decision made by the delegate.
5. On 24 May 2013 the Tribunal wrote to the review applicants by letter addressed to the first named visa applicant, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 10 July 2013. On 8 July 213 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from the first named visa applicant. On 9 July 2013 the second named applicant (the first named applicant’s wife) contacted the Tribunal and confirmed that she wished the Tribunal to make a decision on the papers. The third named applicant is the first and second named applicants’ infant child and the Tribunal is satisfied the first and second named applicants act on behalf of the child. This matter has therefore been determined on the evidence available to the Tribunal.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 836.212 of the Regulations requires that the review applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s uncle.
8. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.
9. The applicant needs to satisfy Reg 1.15AA. The applicant needs to provide a Carer Visa Assessment Certificate for the person needing his care. At the time of application no Certificate was provided. The Department sent two letters requesting the applicant provide a Carer Visa Assessment Certificate before making a decision.
10. No Carer Visa Assessment Certificate was provided to the Tribunal.
11. On 8 July 2013 the applicant wrote to the Tribunal stating that his Uncle no longer lives with him and he is not caring for him.
12. On the above evidence the Tribunal finds that at the time of application the review applicant claimed to be the carer of an Australian relative and therefore does not satisfy the requirements of cl.836.212.
13. For the reasons above, the Tribunal finds that the review 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 review applicant meets prescribed criteria for the visa sought.

DECISION

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

Catherine Carney-Orsborn 17 July 2013
Member