Nguyen (Migration)

[2021] AATA 2147

Nguyen (Migration) [2021] AATA 2147 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Dao Nguyen

CASE NUMBER:  1919901

HOME AFFAIRS REFERENCE(S):          CLF2015/18269

MEMBER:Denis Dragovic

DATE:29 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 29 March 2021 at 7:39am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – Federal Court remittal – sponsor had passed away – sponsorship is no longer in force – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, Schedule 2, cls 836.213, 836.221, 836.227

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 and Border Protection on 26 August 2015 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 applied for the visa on 23 March 2015. 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 (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.836.221.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the sponsor has nine relatives in Australia. Living with the sponsor are her son, daughter and an adult granddaughter. The delegate found that between the three the sponsor could receive the support that is required.

4. This matter is before the Tribunal because of a Court order. A differently constituted Tribunal affirmed the delegate’s decision on 23 August 2016. The Tribunal acknowledged that the sponsor’s son had recently married a Vietnamese national who was expecting their first child and sponsored her in an application for a partner visa but found that at the time of its decision there was no evidence before it that his wife had entered Australia and as such weight was given to the ability of the sponsor’s son to contribute to the care of the sponsor. This formed part of the basis for the Tribunal rejecting the claim that the sponsor’s son could not provide his mother with assistance, including continuing to provide overnight care, as he had done before. The Tribunal found that the majority of the assistance required by the sponsor could reasonably be provided by the three relatives who lived with her in combination with assistance from Australian relatives who lived close by.

5. This decision was appealed to the Federal Circuit Court of Australia which upheld the Tribunal’s decision. The Federal Court of Australia then considered the relevant matters and ruled that the Tribunal had erred as ‘the assistance’ referred to in r.1.15AA(1)(e) must be assistance based upon a certificate that satisfies the requirements of r.1.15AA(2) which takes a forward looking needs based assessment over a specific period of time. The sponsor’s son’s recent marriage, his expecting a child, and his sponsorship of his wife to live with him in Australia were, the court found, significant factors in not being able to support the sponsor in the way required over the time period covered by the certificate.

6. The case being remitted by the Federal Court of Australia was set down to be heard at the Tribunal on the 22 February 2021. On the 8 February an email was received from the representative notifying the Tribunal that the sponsor had passed away, that the applicant waived the right to a hearing and instead would be making a submission requesting the Tribunal’s support for a request for Ministerial Intervention.

7. Correspondence from the applicant’s representative was received by the Tribunal on the 22 February 2021 that included a death certificate showing the sponsor had passed away on the 26 May 2019 along with acknowledgement that the application cannot succeed, the waiving of the right to a hearing and a request for Ministerial Intervention on the papers. A submission was made detailing the basis for the request for Ministerial Intervention on the 22 February 2021.

8. Having reviewed the documentation I am satisfied that consent has been given to proceed to a decision without a hearing.

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

   Whether the applicant is sponsored

10. It is a requirement that at the time of decision the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force (see: cl. 836.227). The sponsor for the applicant has passed away. The language of 836.213 is in the present tense requiring, for example, that the sponsor ‘is a settled Australian citizen’ and ‘is usually resident’. As the applicant’s sponsor could no longer be considered to currently be an Australian citizen, or otherwise usually resident in Australia, the Tribunal is not satisfied that the sponsorship is still force. It follows that the cl 836.227 cannot be met.

11. For this reason, 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 the prescribed criteria for the visa sought.

    DECISION

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

    Denis Dragovic
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

    (a)the applicant is a relative of the resident; and

    (b)according to a certificate that meets the requirements of subregulation (2):

    (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

    (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

    (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

    (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

    (e)the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia; and

    (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

    (2)A certificate meets the requirements of this subregulation if:

    (a)it is a certificate:

    (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

    (ii)signed by the medical adviser who carried it out; or

    (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

    (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.