Nguyen (Migration)

[2020] AATA 3858

Nguyen (Migration) [2020] AATA 3858 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Le Mai Trang Nguyen

CASE NUMBER:  1718081

HOME AFFAIRS REFERENCE(S):          CLF2017/53850

MEMBER:Kira Raif

DATE:16 September 2020

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 16 September 2020 at 11:06am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – application made more than 12 months after last substantive visa held – previous carer visa application deemed invalid – bridging visas and period as unlawful non-citizen – separated but not divorced from sponsor – no spousal relationship – Australian citizen child severely disabled – need for carer – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 836.211, 836.213; Schedule 3, Criterion 3002

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 9 August 2017 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 20 July 2017. 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 delegate also found that the applicant did not meet Item 3002 of Schedule 3 to the Regulations. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 16 September 2020 to give evidence and present arguments. 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 her 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. Relevantly to this matter, the primary criteria to be met include cl.836.213. Clause 826.213 requires the applicant to be sponsored by the Australian relative or a spouse of an Australian relative.

7. Another requirement that is relevant in this case is Item 3002. It is a requirement of cl. 836.211 that the applicant must be a holder of a substantive visa or not a holder of a substantive and to have satisfied Schedule 3 criterion 3002.

   Are the requirements of Item 3002 met?

8. The applicant provided to the Tribunal a copy of the primary decision record which sets out her immigration history. It indicates that the applicant entered Australia as a holder of a Student visa, which was valid until 15 March 2016. On that day the applicant made an application for a Carer visa, which was deemed to be invalid as it was not accompanied by evidence that the Carer Visa Assessment Certificate was being sought. The applicant was granted a Bridging visa, which expired on 29 April 2016 and she then became an unlawful non-citizen until 20 July 2017 when the applicant was granted several bridging visas. The applicant made the present application on 20 July 2017.

9. In oral evidence the applicant told the Tribunal that the Department did not warn her about the Schedule 3 requirement. However, whether or not the applicant was aware of this requirement, she must meet all the statutory criteria for visa grant. The applicant also told the Tribunal that she did not receive advice from the Department concerning the refusal of her visa but was granted access to Medicare so she assumed ‘everything was going smoothly’. The representative explained that they made an earlier application which was deemed invalid and they had to wait for the refund before making another application. It is not in dispute that the applicant did not hold a substantive visa after March 2016.

10. The Tribunal finds that the last substantive visa held by the applicant was a Student visa, which expired on 15 March 2016. Since that time the applicant remained in Australia either as an unlawful non-citizen or as a holder of Bridging visas. The applicant was not a holder of a substantive visa at the time she made the present application in July 2017. The applicant does not meet cl. 836.211(a).

11. The applicant was not the holder of a Transit visa before her substantive visa ceased. Clause 836.211(b)(iii) requires the applicant to satisfy Criterion 3002.

12. There is no evidence that the applicant held an entry permit that was valid up to and including 31 August 1994. There is no evidence that the applicant became an illegal entrant before 1 September 1994. There is no evidence that the applicant’s last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision. The Tribunal finds that the relevant day, within the meaning of subclause 3001(2), is the last day when the applicant held a substantive visa, which is 15 March 2016. As the present application was made in July 2017, it was not made within 12 months after the relevant day. The Tribunal is not satisfied the applicant meets Criterion 3002 and cl. 836.211.

13. In her written submission to the Tribunal as well as oral evidence, the applicant requests a waiver of this provision on the basis of compelling circumstances. The Tribunal considers this request from the applicant’s representative – who is a registered migration agent – to be odd as there is nothing in the legislation that allows for the waiver of the schedule 3 requirements. As the applicant does not meet PIC 3002, she does not meet cl. 836.211. On that basis, the application must be affirmed.

    Is the applicant sponsored by an Australian relative?

14. Having found that the applicant does not meet Item 3002 and cl. 836.211, it is not necessary to consider the remaining requirements. However, the Tribunal has also considered whether the applicant was sponsored by a relative, as required by cl. 838.213.

15. The applicant provided to the Tribunal a copy of the primary decision record. The applicant claimed to be a carer for her daughter, Anh Mai Tran, born in July 2014. The Tribunal is satisfied that, for the purpose of cl. 838.212, the applicant claimed to be a carer of an Australian relative. Clause 838.213 requires the applicant to be sponsored by a relative.

16. The applicant stated on the application form that she is separated, and she provided her residential address at Sunshine West, Victoria. The sponsorship form was completed by Mr Ha Quoc Bao Tran who gave his address at Deer Park, Victoria. Mr Tran stated on the form that if the visa is approved, the applicant would have her own house to reside in.

17. The delegate found that the applicant and Mr Tran had been separated and therefore Mr Tran was not a relative of the applicant. The delegate was not satisfied the applicant met r. 1.15AA(1)(a). However, another issue in this case is the sponsorship requirement. As noted above, cl. 836.213, the applicant must be sponsored by an Australian relative or a spouse or de facto partner of an Australian relative.

18. In her written submission to the Tribunal of 10 September 2020 the applicant addressed the statutory criteria and the family circumstances. The applicant claims that the delegate erred in relation to the findings concerning her relationship with the sponsor. With respect to that relationship, the applicant claims that at the time the application was made, she was the spouse of the sponsor. The applicant states that given her husband’s addiction and her own safety, she and the sponsor separated but had not legally divorced and she was advised to live away from him for the safety of their child. She hoped they would reconcile but she is now unaware of his whereabouts.

19. The Tribunal notes that the applicant stated on the application form that she is separated from Mr Tran. Mr Tran also stated on the sponsorship form that he and the applicant would not be living together, if the visas are granted. They did not appear to be living together when the application was made. The Tribunal accepts that the applicant and Mr Tran had not formally divorced. However, the absence of a formal divorce does not establish the existence of a spousal relationship. The applicant’s own evidence is that they had separated and were living in different households. While the Tribunal accepts that the applicant and Mr Tran maintained a legal marriage when the application was made, the Tribunal is not satisfied that at that time the applicant and Mr Tran had a joint household or shared their finances or represented themselves to others as being in a spousal relationship or undertook joint social activities. It is not apparent that they shared any responsibilities for the care of their child. At best, the applicant’s evidence to the Tribunal is that Mr Tran visited his daughter occasionally.

20. In oral evidence and her written submission, the applicant explained that her husband was involved with drugs and Child Protection suggested that it would not be safe for the child to live in the same household with her father. The applicant states that if they had not separated, her daughter would be taken away from her and her daughter was her first priority. The applicant explained that she is still hopeful that Mr Tran would resolve his addiction. The Tribunal accepts that there were good reasons for the separation, but finds that  the separation of the parties, coupled with the absence of other indicia of the relationship, offer a strong indication that they were not in a genuine and committed spousal relationship.

21. The fact that the applicant indicated on the form that she was separated also suggested that the applicant did not consider herself to be in a spousal relationship with Mr Tran. Indeed, other than the formal marriage, the applicant and Mr Tran did not appear to have maintained any indicia of marriage. Importantly, there is no evidence before the Tribunal from Mr Tran concerning the relationship and no claim that he believed to be in a spousal relationship with the applicant when the application was made. There is no evidence that when the application was made, there was a mutual commitment to the relationship to the exclusion of all others and it is not sufficient for the applicant to claim that such relationship existed as the Tribunal cannot be satisfied that Mr Tran also held that  belief.

22. The applicant told the Tribunal that she and Mr Tran were still in communication (while also claiming she is not aware of Mr Tran’s whereabouts) but even if that was the case, communication alone is not sufficient to establish the existence of a spousal relationship. The applicant also claims she hoped to reconcile but that appears to have been purely aspirational and does not represent a spousal relationship. At best, it may suggest a hope for a future spousal relationship, but the Tribunal is not satisfied the spousal relationship had been in existence when the application was made. The Tribunal is not satisfied that the applicant and Mr Tran maintained a mutual commitment to a life together as husband and wife to the exclusion of all others at the time the application was made, despite the formal marriage. In reaching this conclusion, the Tribunal accepts the applicant’s explanation for the reasons why they separated.

23. The Tribunal is not satisfied that when the application was made, Mr Tran was the spouse of the applicant. The Tribunal is not satisfied he was a ‘relative’ of the applicant when the application was made. The Tribunal is not satisfied the applicant was sponsored by a relative when the application was made. The Tribunal is not satisfied the applicant meets cl. 836.213. For that reason also, the applicant does not meet the requirements for the grant of a Carer visa.

24. The applicant stated that her parents and two siblings reside in Vietnam. The Tribunal finds they are the applicant’s near relatives. The applicant has near relatives who are not resident in Australia and she does not meet the requirements for the grant of the Remaining Relative visa. The applicant was born in October 1991 and she is not old enough to be granted an Aged pension. She does not meet the requirements for the grant of the Aged Dependent Relative visa.

25. The applicant provided a number of documents concerning her daughter’s condition and the need for a carer. There is before the Tribunal medical evidence and statements in support. The Tribunal accepts that evidence but has no discretion to waive the statutory criteria. Having found that the applicant does not meet the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

26. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal notes that the applicant has a severely disabled child who is an Australian citizen. The applicant is a primary carer for the child. There are medical reports and other evidence before the Tribunal indicating that the applicant’s support is essential in caring for the child. The Tribunal has formed the view that there are strong compassionate considerations in this case. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

27. 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

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

    Kira Raif
    Senior Member