1515647 (Migration)

[2016] AATA 4793

1515647 (Migration) [2016] AATA 4793 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ngoc Dung Nguyen

CASE NUMBER:  1515647

DIBP REFERENCE(S):  BCC2009/526862

MEMBER:Alison Mercer

DATE:13 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 13 December 2016 at 5:03pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) – Subclass 886 – Sponsored by specified relative – Sponsorship withdrawn ­

LEGISLATION

Migration Act 1958, s 65, s 351

Migration Regulations 1994, Schedule 2, cl 886.222

CASES

Huo v Minister for Immigration and Multicultural Affairs, [2002] FCA 617

Manna v Minister for Immigration and Citizenship, [2012] FMCA 28

Minister for Immigration and Citizenship v Li, [2013] HCA 18 (8 May 2013)

Minister for Immigration and Border Protection v Singh, [2014] FCAFC 1 (4 February 2014)

Kaur v Minister for Immigration and Border Protection, [2014] FCA 915 (28 August 2014)

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 6 November 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 December 2009. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.886.222(3) of Schedule 2 to the Regulations, which required that she was sponsored by a specified relative who was over 18, an Australian citizen or permanent resident or eligible New Zealand citizen and who was usually resident in Australia. The delegate noted that when the applicant made her visa application in December 2009, she was sponsored by her aunt, Thi Tuyet Hong Dao, an Australian citizen then aged 47. The delegate found, however, that the sponsor had advised the Department on 3 February 2011 that she withdrew her sponsorship of the applicant. The applicant was advised of this and given an opportunity to do so. She did not provide a response. Accordingly, the delegate found that the applicant did not meet cl.886.222(3). As there was no evidence that the applicant had been nominated by a State or Territory government agency, she did not meet cl.886.222(2). As she did not meet cl.886.222 as a whole, her application was refused.

4. The Tribunal received a review application from the applicant on 16 November 2015.  It was accompanied by a copy of the delegate’s decision.  She subsequently provided a written statement (addressed to the Department) dated 15 July 2015 in which she indicated that her aunt, Thi Tuyet Hong Dao, had originally agreed to sponsor her for the subclass 886 visa but their relationship had become challenging during the processing of the subclass 886 visa application, with the result that her aunt withdrew her sponsorship, despite the applicant’s attempts to apologise and resolve the situation.  The applicant acknowledged that she had no other eligible relative in Australia who could sponsor her but noted that she had been here since September 2007, had worked and studied hard, despite being widowed, and sent money back to her family in Vietnam as well as undertaking community voluntary work in Australia.  She stated that she felt that in Australia, there were many more opportunities for her and that she wished to become a permanent resident.

5. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thanh Nguyen and Ms Thi Diem Thad Nguyen, friends of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant confirmed to the Tribunal that she had not been successful in getting her aunt to change her mind and reinstate her sponsorship.  The Tribunal indicated that without this, the applicant’s visa application could not succeed.  The applicant reiterated that she had done everything that she could to reconcile with her aunt but without success.  She further stated that she had supported herself since arriving in Australia.  Although she had other relatives in Australia who had provided her with emotional support over the years, the only relative closest enough to qualify as a sponsor was her biological aunt.  The applicant noted that she had another close friend whom she regarded as an aunt and asked if this person could lodge a sponsorship.  The Tribunal indicated that only specified relatives could sponsor an applicant for a subclass 886 visa, and a friend (however close the relationship) did not qualify.

7. The applicant reiterated that she had been in Australia for 9 years and always supported herself. Her aunt was the one to initiate the sponsorship; otherwise, the applicant felt that she could have applied for permanent residence independently and succeeded. She accepted the sponsorship offer but then was treated very badly and threatened by her aunt, ultimately resulting in her aunt withdrawing her sponsorship.  The applicant said that this had caused her great anxiety and stress, particularly because she was bereaved during this period, which was very difficult for her.

8. The applicant’s friend Ms Thi Thanh Nguyen told the Tribunal that she knew the applicant’s circumstances and that she had met the applicant’s aunt.  She asked the Tribunal to defer its decision to give more time for people to persuade the applicant’s aunt to reinstate the sponsorship.  The Tribunal noted that, given the applicant’s aunt had withdrawn her sponsorship in February 2011 and not reinstated it by October 2016 (the time of the Tribunal’s hearing) it seemed highly unlikely that providing additional time would produce a different result.  Ms Nguyen said that the applicant’s aunt is a Catholic and may well forgive the applicant.  The Tribunal reiterated that if this had not occurred in over 5 years, then there did not seem a realistic prospect that additional time would result in the sponsorship being reinstated.  It declined to defer its decision on this basis.

9. The applicant’s friend Ms Thi Diem Thad Nguyen told the Tribunal that the applicant was a good person who had lived in Australia for many years, during which time, she had worked, studied, paid taxes and done volunteer work.  Ms Nguyen said that the applicant had a lot of pressure from her aunt and she tried to persuade the applicant to seek medical help for this, but the applicant wanted to try to sort it out herself.  She asked the Tribunal to take a compassionate view of the applicant’s case.

10. The applicant also provided the following documents to the Tribunal at the hearing:

    ·letter dated 20 October 2016 from Rev. Br. Stephen Tran, Manager, Open House at Sts Peter and Paul, South Melbourne, confirming that the applicant had been a regular and very conscientious volunteer with their food service to the poor in the St Kilda area in the last few years;

    ·letter dated 18 July 2015 from Fr. Leenus Neetany, Parish Priest, Holy Child Parish, Dallas, confirming the applicant had been an active member of the church community there for the last few years, including being in the choir and caring for the elderly of the parish;

    ·letter dated 19 July 2015 from Fr. Peter Hoang, Parish Priest of Our Lady of the Immaculate Conception, Sunshine, confirming that he has known the applicant since she lived with her aunt and uncle, during which time she was an active member of the St Peter’s choir and the Youth Group at the church.  He confirmed that he was aware of the disagreement between the applicant and her aunt’s family that had taken place, and that a few attempts at reconciliation had failed. He supported the applicant’s wish to stay in Australia if there was a suitable visa for which she was eligible;

    ·World Youth Day volunteer certificate issued to the applicant in August 2016;

    ·undated and unsigned statutory declaration by Thi Tuyet Hong Dao that she was willing to sponsor her niece, the applicant, for a subclass 886 visa; and

    ·Australian Federal Police clearance issued to the applicant on 26 June 2015.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl.886.222. Subclause 886.222(1) requires that she satisfies either cl.886.222(2) or (3) in order to meet cl.886.222 as a whole.

13. Subclause 886.222(2) requires that the applicant has been nominated by a State or Territory government agency. There is no evidence to indicate that this is the case, and the applicant did claim to have been so nominated. Accordingly, the Tribunal finds that the applicant does not meet cl.886.222(2).

14. As noted above, cl.886.222(3) requires that the applicant is sponsored by a specified relative who is over 18, an Australian citizen or permanent resident or eligible New Zealand citizen and who is usually resident in Australia. As noted by the delegate and acknowledged by the applicant, when the applicant made her visa application in December 2009, she was sponsored by her aunt, Thi Tuyet Hong Dao, an Australian citizen then aged 47. However, it is not disputed that the sponsor had advised the Department on 3 February 2011 that she withdrew her sponsorship of the applicant. Nor is it disputed by the applicant that she has no other relative in Australia who is eligible to sponsor her apart from her aunt Thi Tuyet Hong Dao.

15. The Tribunal acknowledges the applicant’s evidence that she tried to resolve the family rift that developed between her and her family and her aunt and her aunt’s family, but had been unable to do so. It accepts that she made sincere attempts to do so. It also acknowledges the character references provided by friends and colleagues of the applicant attesting to her time in Australia, during which she has worked, paid taxes, studied and undertaken community work. However, there is no discretion within the criteria for the subclass 886 visa to waive or overlook the requirements of cl.886.222, regardless of whether there are any compassionate or exceptional circumstances present in the case.

16. The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time to attempt further reconciliation with her aunt in the hope that the sponsorship would be reinstated.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

17. In this case, the Tribunal does not consider it reasonable to further adjourn the case in the hope that a reconciliation and reinstatement of sponsorship may occur, noting that this has not been able to be achieved to date, a period of over 5 years since the applicant’s aunt withdrew the sponsorship.  While the Tribunal has sympathy for the applicant’s position and her efforts to reconcile with her aunt, they have to date been futile and there appears no realistic prospect of this fact changing in the near future.

18. Given the above findings, the Tribunal finds that the applicant does not satisfy cl.886.222.

19. It follows that the applicant does not satisfy the criteria for the grant of a subclass 886 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

20. In closing, the Tribunal notes that s.351 of the Act enables the Minister to grant a visa to a person even if the person’s review application with the Tribunal has been unsuccessful, although this is an entirely discretionary power. It remains open to the applicant to make a request to the Minister directly herself if she is of the view that her case meets the guidelines for Ministerial intervention found on the Department’s website (at or otherwise involves unique or exceptional circumstances.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Alison Mercer
    Member