Bui (Migration)

[2018] AATA 3671

Bui (Migration) [2018] AATA 3671 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngoc Thanh Bui

CASE NUMBER:  1612881

DIBP REFERENCE(S):  CLF2015/39878

MEMBER:Kira Raif

DATE:30 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 30 July 2018 at 11:57am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – not sponsored by a relative who is carer – sponsored by a different relative – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 836.212, 836.213

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 4 August 2016 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in January 1975. He applied for the visa on 6 July 2016. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant provided a written submission, and a large volume of documents to the Tribunal, on the evening of 13 July, one working day before the scheduled hearing. It is quite extraordinary, in the Tribunal’s view, that the applicant or his representative chose to provide the submissions and supporting documents less than one working days before the hearing, given that this case was before the Tribunal since August 2016 for a period of close to two years and the applicant was represented by the same migration agent throughout this time. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Adewale Oaldejo of Visatec Legal.

4. The applicant appeared before the Tribunal on 16 and 23 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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 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.

6. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18.

   Are the sponsorship requirements met?

7. The applicant stated on the application form that the Australian relative who was in need of his care was his grandmother, Thi Huan Hua. The Carer certificate relates to Ms Hua and there is no Carer certificate in relation to any other person. The Tribunal finds that at the time the application was made, the applicant claimed to be a carer of Ms Hua. However, the applicant was sponsored for the visa by his father, Mr Van Danh Bui.

8. Clause 836.212 requires that the applicant claims to be a carer of an Australian relative. Clause 836.213 requires that the applicant be sponsored by the Australian relative or the spouse of the Australian relative. In the Tribunal’s view, the Australian relative referred to in cl. 836.213 is the relative mentioned in cl. 836.212. That is, the applicant must be sponsored by a relative of whom he claims to be a carer. In this case, the applicant was sponsored by his father and it would have been possible for the applicant to claim to be a carer of his father to assist his father to care for his grandmother. However, that is not what the applicant has done. The applicant claimed to be a carer of his grandmother in his application form.

9. The Tribunal finds that the applicant claimed to be a carer of his grandmother but he was sponsored by a different relative, his father.

10. The Tribunal has considered the applicant’s written submissions of 27 July 2018. These submissions address the requirements of the Carer definition and the relationship between the sponsor and the person in need of care. The Tribunal accepts the arguments put forward in this submission but the issue here is not whether the applicant it a relative of the sponsor or whether the person in need of care is a relative of the sponsor. The issue is the relationship between cl. 836.212 and cl. 836.213. As noted above, the Tribunal has formed the view that the applicant must be sponsored by the same relative in relation to whom he claims to be a carer and this has not happened in the present case. It is not necessary then to assess the remaining criteria, including whether the applicant is a carer. 

11. The applicant also provided to the Tribunal throughout the review evidence of the carer arrangements that exist in the family, as well as evidence of dependence to establish that his grandmother is a member of the family unit of his father. The applicant and his father also gave oral evidence concerning the care arrangements and the availability of care. The Tribunal acknowledges that evidence.

12. The applicant claimed to be a carer for his grandmother for the purpose of cl. 836.212. However, he was sponsored by his father for the purpose of cl. 836.213. As the applicant was not sponsored by ‘the Australian relative’ or the spouse of the relative mentioned in cl. 836.212, the Tribunal is not satisfied the applicant meets cl. 836.213.

13. The Tribunal is not satisfied that the applicants meet the requirements for the Aged Dependent Relative visa as he is not old enough to be granted an aged pension. The applicant stated on the form that he had relatives in Vietnam and the US. The Tribunal is not satisfied the applicant is a remaining relative of an Australian relative.

    Conclusion

14. For the reasons above, the 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 applicant meets prescribed criteria for the visa sought.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member