Nguyen (Migration)

[2021] AATA 3210

Nguyen (Migration) [2021] AATA 3210 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ha Dan Thanh Nguyen
Miss Thanh Quynh Huong Do

CASE NUMBER:  2018217

HOME AFFAIRS REFERENCE(S):          CLF2017/108241

MEMBER:Justine Clarke

DATE:2 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2021 at 10:20am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –sponsor had passed away – sponsorship is no longer in force – applicant is not sponsored as required –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 376

Migration Regulations 1994, r 1.03, Schedule 2, cls 836.213, 836.221, 836.227, 836.321

CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 11 December 2020 by a delegate of the Minister for Home Affairs to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. On 13 November 2017, the applicants applied for the visas. At the time of this decision, the first-named applicant is a 37-year-old national of Vietnam. It is claimed that the second-named applicant is a member of the family unit of the applicant, being her 9-year-old daughter. Hereafter, the first-named applicant is referred to as the applicant and the second-named applicant is referred to as the secondary visa applicant.

3. The Department’s file contains a copy of the completed:

   ·Form 47OF—Application for migration to Australia by other family members in which the applicant provides details of the claimed Australian relative requiring care, being her step-father Mr Asitha Dushanth Gurusinghe; and

   ·Form 40—Sponsorship for migration to Australia that was signed by the sponsor, Mr Asitha Dushanth Gurusinghe, on 7 November 2017.

4. At the time of 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 Migration Regulations 1994 (Cth) (the Regulations).

5. The applicants seek 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. The primary criteria include cl.836.213 and cl.836.227. The secondary criteria include cl.836.321.

6. Clause 836.213 is a time of application criterion and provides:

   The applicant is sponsored

   (a)  by the Australian relative, if the Australian relative:

   (i)has turned 18; and

   (ii)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (iii)is usually resident in Australia;

   (b)  by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:

   (i)has turned 18; and

   (ii)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (iii)is usually resident in Australia; and

   (iv)cohabits with the Australian relative.

7. The term ‘Australian relative’ is defined for the purpose of the Part in cl.836.111. The term ‘settled’ is defined in r.1.03.

8. Clause 836.227 is a time of decision criterion and provides:

   The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

9. Clause 836.321 is a time of decision criterion and provides:

   The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

10. The applicant provided the Tribunal with a copy of the primary decision. The delegate was not satisfied that, at the time of decision, the applicant met cl.836.227 because Mr Asitha Dushanth Gurusinghe died on 29 April 2020. The delegate refused to grant the visa to the applicant on this basis. The delegate also refused to grant the visa to the secondary visa applicant on the basis that she did not satisfy cl.836.321 because ‘the primary visa applicant did not satisfy the criteria for the grant of a subclass 836 visa’ and ‘[n]o claims have been made and there is no evidence that the secondary applicant is able to meet the primary criteria for the grant of a Subclass 836 - Carer (Residence) visa’.

11. On 21 December 2020, the applicants applied to the Tribunal for review of the primary decision. The applicants were represented in relation to the review by their registered migration agent.

12. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 30 July 2021, the applicant appeared, by video, before the Tribunal to give evidence and present arguments. The secondary visa applicant as well as Ms Thi Kim Thoa Ha (the applicant’s mother) and Mr Hemal Gurusinghe (the applicant’s step-uncle) were said to be waiting in the room outside the room where the applicant gave her oral evidence. While Ms Ha and Mr Gurusinghe had been listed as witnesses in the response to the hearing invitation, the Tribunal elected not to receive oral evidence from Ms Ha and Mr Gurusinghe, considering that neither were in a position to provide oral evidence to assist the Tribunal to determine whether the applicant meets cl.836.227 and whether the secondary visa applicant meets cl.836.321 and/or whether either applicant met the requirements for a Subclass 838 or Subclass 835 visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing. The applicant and the representative attended the hearing from the same location. The interpreter attended by video from a different location.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The purported non-disclosure certificate

14. As discussed with the applicant at the hearing, the Department’s file contains a non-disclosure certificate said to have been made pursuant to s.376.

15. This certificate relevantly states:

    Public Interest folios

    I notify the Administrative Appeals Tribunal that s376 applies to the document(s)/information contained in file number CLF2017/108241, and certify that disclosure of this material would be contrary to the public interest because:

    (a)  Folio(s) 178: disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods[.]

16. The Tribunal must:

    ·assess the validity of the certificate;

    ·accord procedural fairness, including disclosing the existence of the certificate to the applicants and providing the applicants with a copy of the certificate; and

    ·comply with the procedural code, including inviting the applicants to seek a favourable exercise of the discretion in s.376(3)(b) and complying with s.359A or s.359AA, that is, giving the applicants clear particulars of information that is adverse to their case and inviting them to comment on or respond to the information.

17. The day before the hearing, on 29 July 2021, the Tribunal wrote to the applicants, by way of their representative, and provided them with a copy of the certificate (the name of the delegate and signature were redacted for privacy reasons). The letter explained that, at the hearing, the Member would discuss the certificate with them and provide them with an opportunity to make submissions regarding the certificate and its validity.

18. At the hearing, the Tribunal explained that it held the view that the certificate was not validly made. While the certificate is dated and signed by a delegate, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840, the Tribunal considers that the certificate was not validly made pursuant to s.376(1)(a) of the Act. The Tribunal considers that the reason given for non-disclosure does not properly identify a public interest ground for non-disclosure as it does not sufficiently specify how disclosure could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.

19. The Tribunal explained that it had reviewed the material sought to be protected from disclosure and the Tribunal considered that it was not relevant to the issue for determination in the review. The Tribunal informed the applicant that it would have no regard to the information in making its decision.

20. The representative told the Tribunal that he was ‘fine’ with the Tribunal’s assessment that the certificate was not validly made. The representative did not seek the disclosure of the information.

21. The Tribunal considers that it has complied with any obligations it may have with respect to the certificate and the material sought to be protected from disclosure.

    Carer (Subclass 836) visa

22. The issue for determination in this review is whether, at the time of this decision, the applicant meets cl.836.227 and whether the secondary visa applicant meets cl.836.321.

23. At the hearing, the applicant conceded that she did not meet cl.836.227.

24. When the Tribunal stated that it appeared that the secondary visa applicant also could not meet the requirements—either because she could not meet the secondary criteria as the applicant could not meet cl.836.227 or because the secondary visa applicant could not meet the primary criteria because she could not meet cl.836.227—the applicant did not dispute this.

25. The Tribunal notes that the Department’s Procedures Advice Manual (PAM3), which guides decision makers, outlines the purpose of sponsorship in the following way.

    ‘Sponsorship’ is a fundamental concept underpinning Family Migration. The sponsor undertakes to ensure that their family member is supported during their initial settlement in Australia and hence does not become a charge on the wider Australian community.

26. The terms of cl.836.227 appear clear: at the time of decision, the sponsorship mentioned in cl.836.213 must have been approved by the Minister and must still be in force. As noted in the primary decision, for this subclass, there is no provision for an applicant with an unfinished visa application to change their sponsor. Rather, it seems clear that the death of the sponsor means that the applicant will be unable to meet the time of decision criterion in cl.836.227.

27. From the evidence before it, the Tribunal is satisfied that the sponsor in this case, Mr Asitha Dushanth Gurusinghe, died on 29 April 2020. Therefore, at the time of decision, the applicant is not sponsored as required and does not satisfy cl.836.227. For these reasons, the applicant does not meet the criteria for a Subclass 836 visa.

28. The Tribunal finds that, because the applicant does not meet cl.836.227, the secondary visa applicant cannot meet the criteria for a Subclass 836 visa as a member of the family unit of a person who has satisfied the primary criteria. Accordingly, at the time of this decision, the secondary visa applicant does not meet cl.836.321.

29. In addition, the Tribunal notes that no evidence has been provided that the secondary visa applicant meets the primary criteria for the grant of a Subclass 836 visa and, accordingly, finds that the secondary visa applicant does not meet the primary criteria for a Subclass 836 visa.

30. The Tribunal is required to assess the applicants against all the subclasses in the Class BU class of visa. Accordingly, the Tribunal must also make findings as to whether the applicants satisfy the criteria for an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa.

31. At the hearing, the Tribunal asked the applicant whether she was making any claims that she and/or the secondary visa applicant met the criteria for a Subclass 838 or a Subclass 835 visa. At first, she replied that she thought that her daughter met the criteria but then the representative interrupted and said that he had not discussed these issues with the applicant. He asked for a short adjournment so that he could speak with his client.

32. After a short adjournment, the applicant told the Tribunal that she conceded that neither she nor her daughter met the requirements of a Subclass 838 or Subclass 835 visa.

    Aged Dependent Relative (Subclass 838) visa

33. The evidence before the Tribunal is that the applicant was born on a specific date in November 1983. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purpose of cl.838.212 of Schedule 2 to the Regulations.

34. The Tribunal finds that, because the applicant does not meet cl.838.212, the secondary visa applicant cannot meet the criteria for a Subclass 838 visa as a member of the family unit of a person who has satisfied the primary criteria. Accordingly, at the time of this decision, the secondary visa applicant does not meet cl.838.321.

35. In addition, the Tribunal notes that the secondary visa was born on a specific date in December 2011. The Tribunal finds that the secondary visa applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa because she is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the secondary visa applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purpose of cl.838.212 of Schedule 2 to the Regulations.

    Remaining Relative (Subclass 835) visa

36. The Tribunal notes that for this subclass of visa, at the time of decision, the sponsorship must be approved by the Minister and be in force, although the sponsor need not be the same sponsor as at the time of application: cl.835.227.

37. The Tribunal finds that, at the time of this decision, the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa because the sponsorship of Mr Asitha Dushanth Gurusinghe is not in force and no alternate sponsorship has been provided. As such, the applicant is unable to meet cl.835.227.

38. The Tribunal finds that, because the applicant does not meet cl.835.227, the secondary visa applicant cannot meet the criteria for a Subclass 835 visa as a member of the family unit of a person who has satisfied the primary criteria. Accordingly, at the time of this decision, the secondary visa applicant does not meet cl.835.321.

39. In addition, the Tribunal notes that there is no evidence that the secondary visa applicant meets the primary criteria for the grant of Subclass 835 visa.

    DECISION

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

    Justine Clarke
    Member