NGUYEN (Migration)

[2021] AATA 2521

NGUYEN (Migration) [2021] AATA 2521 (19 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI HOANG OANH NGUYEN

CASE NUMBER:  1834664

HOME AFFAIRS REFERENCE(S):          CLF2017/109242

MEMBER:Helen Kroger

DATE:19 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.213 of Schedule 2 to the Regulations;

Statement made on 19 May 2021 at 3:22pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – subclass 836 (Carer) – person with medical condition not the sponsor – sponsor is applicant’s brother – Australian resident – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 836.213, 836.221, r 1.15AA

CASES
Nguyen v MICMSMA [2020] FCA 1732

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 Home Affairs on 20 November 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 November 2017. At that time, 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). 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. Relevantly to this matter, the primary criteria to be met include cl 836.213, which requires that the applicant is sponsored by the Australian relative, and cl.836.221 which requires that the applicant is a carer of an Australian relative (that is referred to in cl.836.212).

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate found that the person with the medical condition is neither the resident nor a member of the family unit of the resident, and therefore the applicant did not meet the definition of carer for the requirements of r.1.15AA.

4. I have considered the information available to the Department and to the Tribunal. The Tribunal accepts there has been a change in caselaw in the interpretation of who can sponsor the visa applicant, in circumstances when the visa applicant can still meet the requirements of carer as set out in r.1.15AA, after the Department decision, and in place at the time of the Tribunal review. In these circumstances the Tribunal has decided it can make a favourable decision to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

5. The delegate’s decision is dated 20 November 2018. The Tribunal has applied the principles espoused in Nguyen v MICMSMA [2020] FCA 1732, which found that the sponsorship requirements in cl.836.213 do not expressly require that the Australian relative sponsor, and the Australian relative person with the medical condition requiring care have to be the same person. As the caselaw in relation to the interpretation of the requirements of ‘the Australian relative’ in cl.836.213 has changed since the Department decision, and this change in caselaw directly impacts the findings in the Department decision, it is appropriate that the Tribunal make a finding in relation to the sponsorship requirements in cl.836.213. I am satisfied that the sponsor is the applicant’s brother, and meets the requirements of cl.836.213, that he is an Australian resident, over the age of 18 years of age and usually resident in Australia. Therefore, the applicant meets the requirements of cl.836.213.

6. Based on the principles of Nguyen v MICMSMA, the applicant can potentially meet the requirements of carer, although the person with the medical condition is not the sponsor. I am satisfied that the person with the medical condition requiring care is the father of the sponsor and that the applicant is a relative. In these circumstances it is appropriate that this matter be remitted back to the Department for consideration as to whether the applicant meets all the requirements that the applicant is the carer of an Australian relative as set out in r.1.15AA(1)(a)-(f) and (2). The Tribunal does not make any findings in relation to cl.836.221 in this decision.

7. For the above reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   DECISION

8. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

   ·cl 836.213 of Schedule 2 to the Regulations;

   Helen Kroger
   Member