Nguyen (Migration)

[2024] AATA 1443

Nguyen (Migration) [2024] AATA 1443 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kim Loan Nguyen

REPRESENTATIVE:  Mr Cuong Vo (MARN: 9250600)

CASE NUMBER:  2002197

HOME AFFAIRS REFERENCE(S):          CLF2019/44459

MEMBER:Kira Raif

DATE:22 May 2024

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 22 May 2024 at 3:52pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s cognitive impairment and capacity to understand sponsorship undertakings – sponsor has since died – applicant living in Australia for a number of years and has nothing in home country – not eligible for other subclass visas – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 836.213, 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 Home Affairs on 31 January 2020 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 visa applicant is a national of Vietnam, born in January 1960. She applied for the visa on 24 October 2019. The delegate refused to grant the visa on the basis that cl 836.227 was not met because the delegate was not satisfied the sponsorship obligations were met.

3. The applicant appeared before the Tribunal on 22 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother Mr Nguyen. 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. 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 (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.

5. Relevantly to this matter, the primary criteria to be met include cl. 836.213 and  cl 836.227. 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. Clause 836.227 requires the sponsorship to be approved.

   Primary decision

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored by her mother, Ms Thi Thuoc Nguyen, who was 95 at the time the application was made and Ms Nguyen was also identified as a person who needed care.

7. The delegate noted the medical evidence which indicated that Ms Nguyen suffered a severe stroke in October 2018 and scored 20 points for Brain Function in the Impairment Table, suggesting severe cognitive impairment. The delegate also referred to the report of a medical officer who stated that the sponsor had problems with memory, attention and concentration, she was unable to make complex decisions and needed prompting for simple tasks. The delegate noted concerns whether the sponsor had the capacity to understand the sponsorship undertakings.

8. The delegate wrote to the applicant seeking comments in response to the above concerns. The applicant replied by providing a number of additional medical reports and other evidence, including the sponsorship form. The applicant stated that she is financially supported by her brother, who offered her free accommodation. Ultimately, the delegate was not satisfied that the sponsor understood the sponsorship obligations and concluded that the applicant did not met cl. 836.227.

   Should the sponsorship be approved?

9. In April 2024 the Tribunal wrote to the applicant, through her representative, inviting updated information on the family’s situation and whether the sponsor continued to support the application. The representative replied on 22 April 2024 by stating that further information would be provided and subsequently informed the Tribunal that the applicant wished to proceed with the application.

10. The applicant informed the Tribunal in oral evidence that her mother passed away two or three years ago. It is unfortunate that this information was not passed to the Tribunal by the representative in response to the Tribunal’s request.

11. The Tribunal finds that, at the time of the present decision, the sponsor has passed away. In the circumstances, and in the absence of a sponsor, the Tribunal does not approve the sponsorship. The Tribunal finds that the applicant does not meet cl. 836.227.

12. There is no evidence to indicate that the applicant meets the requirements for the grant of the other visas in Class BU. Ms Nguyen’s evidence to the Tribunal is that she has adult children living independently in Vietnam and the Tribunal is not satisfied she is a remaining relative. She is not old enough to be granted an aged pension and the Tribunal is not satisfied she is an Aged Dependent Relative of an Australian relative.

13. Ms Nguyen told the Tribunal that she has been living in Australia for a number of years and has the support of her siblings while she has nothing in Vietnam and cannot return there. The applicant’s brother Mr Nguyen also spoke about the care that the applicant provided to their mother and their mother’s passing. Mr Nguyen told the Tribunal that the applicant’s children are ‘unfilial’ and would not support her and he hopes his sister can remain in Australia. The Tribunal acknowledges these submissions but has no discretion to recommend the visa grant in circumstances where it has determined that the applicant does not meet the requirements for the grant of the visa. Having found that  the applicant does not meet cl. 836.227, the Tribunal must affirm the decision under review.

    Conclusion

14. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Kira Raif
    Senior Member