MAI (Migration) - [2022] AATA 1592

MAI (Migration) [2022] AATA 1592 (2 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss TRIEU MY LINH MAI
CASE NUMBER:  1823250
HOME AFFAIRS REFERENCE(S):          CLF2017/12092
MEMBER:Helena Claringbold
DATE:2 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 116 (Carer) visa:
· cl.836.213 of Schedule 2 to the Regulations; and
· cl.836.227 of Schedule 2 to the Regulations.

Statement made on 02 March 2022 at 11:27am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor had the capacity to understand the sponsorship obligations at the time of application – the sponsorship is in force at the time of decision – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, rr 1.03, 1.05A, 1.15, 1.20, Schedule 2, cls 836.213, 836.227

CASES
Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
Lo v MICMSM [2020] FCA 895

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 24 January 2017, Miss Trieu My Linh Mai, the applicant, applied for an Other Family (Residence) (Class BU) Carer visa. The application was made on the basis of providing assistance to her grandmother, Ms Thi Lan Mai, the sponsor.
On 1 August 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the sponsorship requirements had been met. Therefore, the applicant did not meet cl. 836.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 12 August 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision. The applicant was represented in relation to the review.
At the time of visa application, 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.
On 30 March 2021, the Tribunal wrote to the applicant and invited her to a Tribunal hearing on 25 May 2021. In a separate letter the Tribunal invited the applicant to provide up to date information relating to the requirements for a Carer visa. She was advised that an example of how this information could be given would be in a current Carer Visa Assessment Certificate (CVAC). She was told that the information should be received by 13 April 2021. She was advised that if she could not provide the information by 13 April 2021, she could ask for an extension of time in which to provide the information. However, if she made such a request, it must be received by the Tribunal by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MAI (Migration) [2022] AATA 1592
Case: [2022] AATA 1592
Decision Date: 2 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa. The applicant, born in Vietnam in 1995, had her visa application refused by a delegate. The central issue before the Tribunal was whether the sponsorship requirements for the visa were met, specifically concerning the applicant's paternal grandmother, who acted as the sponsor.

The Tribunal was required to determine if the sponsor met the criteria outlined in clause 836.213 of the Regulations, which mandates sponsorship by an eligible Australian relative who is at least 18 years old. Additionally, the Tribunal had to consider clause 836.227, requiring that the sponsorship be approved by the Minister and remain in force. The delegate's initial refusal was based on doubts about the sponsor's capacity to understand her obligations and whether the sponsorship was approved and still in force.

In its reasoning, the Tribunal relied on the Full Federal Court's decision in *Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2020] FCAFC 38. The Tribunal noted that *Babar* established that for the purpose of sponsorship undertakings, an assessment of the sponsor's capacity to fulfil the undertaking is not required; the act of giving the undertaking is sufficient. Applying this principle, the Tribunal found that the sponsor had provided the necessary sponsorship form and therefore met the requirements of clause 836.213 and clause 836.227.

Consequently, the Tribunal remitted the application for the Subclass 836 Carer visa for reconsideration. The remittal was with the direction that the visa applicant met the sponsorship criteria under both clause 836.213 and clause 836.227 of Schedule 2 to the Regulations, allowing for the assessment of the remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the sponsorship requirements are met. BACKGROUND ON THE EVIDENCE The applicant was born in 1995 in Ho Chi Minh City, Vietnam. Her parents and siblings live in Vietnam. On 1 August 2018, the applicant was refused an Other Family (Residence) (Class BU) Carer (Subclass 836) visa. She provided an address of Colin Street, Lakemba. The sponsor was born in 1951 in Vietnam. The sponsor separated from her de facto partner in 1992, who later became deceased. Her estranged daughter lives in Australia and her son lives in Vietnam. Her siblings live in Vietnam, Australia and the USA. The sponsor first entered Australia on 26 June 1992 and on 1 December 1995, was granted Australian Citizenship. She provided an address of Colin Street, Lakemba. The sponsor is the paternal grandmother of the applicant. Are the sponsorship requirements met? 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. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act). Clause 836.227 requires that the sponsorship mentioned in cl. 836.213 has been approved by the Minister and is still in force. Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in sub regulation (2), which in the case of a Carer visa, are ‘to assist the visa applicant, to the extent necessary, financially and in relation to accommodation, for two years.’ At the time of visa application, the sponsor provided a Form 40 ‘Sponsorship for migration to Australia’, signed by her on 28 December 2016. The delegate was not satisfied that the sponsor had the capacity to understand her sponsorship obligations at the time of visa application or that the sponsorship has been approved and is still in force. Since the delegate’s decision, there has been relevant judicial consideration of the matter of sponsorship undertakings in a Carer visa application. In Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 (“Babar”), the Full Court of the Federal Court held at [36] that:‘In applying that requirement [to give undertakings], no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required. As already mentioned, giving the undertaking simpliciter is sufficient. [bracketed words added].

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file. ISSUE The issue in the present case is whether the sponsorship requirements are met. BACKGROUND ON THE EVIDENCE The applicant was born in 1995 in Ho Chi Minh City, Vietnam. Her parents and siblings live in Vietnam. On 1 August 2018, the applicant was refused an Other Family (Residence) (Class BU) Carer (Subclass 836) visa. She provided an address of Colin Street, Lakemba. The sponsor was born in 1951 in Vietnam. The sponsor separated from her de facto partner in 1992, who later became deceased. Her estranged daughter lives in Australia and her son lives in Vietnam. Her siblings live in Vietnam, Australia and the USA. The sponsor first entered Australia on 26 June 1992 and on 1 December 1995, was granted Australian Citizenship. She provided an address of Colin Street, Lakemba. The sponsor is the paternal grandmother of the applicant. Are the sponsorship requirements met? 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. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act). Clause 836.227 requires that the sponsorship mentioned in cl. 836.213 has been approved by the Minister and is still in force. Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in sub regulation (2), which in the case of a Carer visa, are ‘to assist the visa applicant, to the extent necessary, financially and in relation to accommodation, for two years.’ At the time of visa application, the sponsor provided a Form 40 ‘Sponsorship for migration to Australia’, signed by her on 28 December 2016. The delegate was not satisfied that the sponsor had the capacity to understand her sponsorship obligations at the time of visa application or that the sponsorship has been approved and is still in force. Since the delegate’s decision, there has been relevant judicial consideration of the matter of sponsorship undertakings in a Carer visa application. In Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 (“Babar”), the Full Court of the Federal Court held at [36] that:‘In applying that requirement [to give undertakings], no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required. As already mentioned, giving the undertaking simpliciter is sufficient. [bracketed words added].

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 Carer visa.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 116 (Carer) visa:·cl.836.213 of Schedule 2 to the Regulations; and·cl.836.227 of Schedule 2 to the Regulations. Helena ClaringboldMember

Ratio Decidendi

Legal Principle Established

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