Nguyen (Migration)

[2019] AATA 2399

Nguyen (Migration) [2019] AATA 2399 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vu Minh Thuy Nguyen

CASE NUMBER:  1707661

HOME AFFAIRS REFERENCE(S):           CLF2015/77710

MEMBER:Mary Urquhart

DATE:16 April 2019

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 16 April 2019 at 2:01pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – approved sponsorship not still in force – Australian relative sponsor deceased – applicant’s spouse living in Vietnam – no longer the carer of a relative – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1 Item 1123B; 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 Immigration and Border Protection on 4 April 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 7 December 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.836.227.

3. The delegate refused to grant the visas on the basis that cl.836.227 was not met because it is a requirement that the sponsorship has been approved by the Minister and is still in force and the Australian relative who had sponsored the applicant is now deceased.

4. Prior to the hearing the Tribunal received a submission of photographs illustrating the care given by the applicant to her grandmother.

5. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Tuyet Huong Nguyen.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the sponsorship mentioned in cl.836.213 has been approved by the Minister and is still in force.

8. The Tribunal discussed with the review applicant the requirements in relation to sponsorship arrangements.

9. At the time of application the applicant was sponsored by her grandmother, the Australian relative.

10. On 6 October 2016 the application was assessed as having met time of application criteria and was placed in the queue.

11. On 7 March 2017 the Department was notified that the applicant’s sponsor had passed away on 2 March 2017.A death Certificate has been provided.

12. The review applicant Ms Vu Minh Thuy Nguyen born 9 July 1991 is a National of Vietnam. She gave evidence that she first came to Australia in 2013 on a Student visa. She undertook business studies at La Trobe University and completed her course.

13. In her application for the Carer visa the review applicant declares that she is married. In her evidence she said she married Mr Matthew John Downing in 2013 and lived with him in Robinvale. She gave evidence that they divorced in November 2017. The review applicant said she is currently married to Mr Hien Chuong Hoang. He lives in Vietnam. They married in August 2018. Together they have an infant child born in February 2019.

14. The review applicant is the granddaughter of the deceased sponsor Mrs Thi Vinh Trinh who was the Australian citizen. She gave evidence that she gave up her job at a Bistro in Robinvale and her relationship with Mr Downing to come to Melbourne to be the carer for her grandmother. It was her evidence that she cared for her sponsor for some 4 years falling short by some matter of months before qualifying for the visa.

15. At the hearing the Tribunal discussed with the review applicant her obligations prior to taking on the care of her sponsor and that she willingly took on the responsibilities of assisting her relative. The review applicant agreed she had done so.

16. The Tribunal is sympathetic to the review applicant in all the circumstances. However having considered all the evidence and having discussed with the review applicant that there is no provision or discretion under the Carer Regulations to grant a visa where there is no sponsorship in place the Tribunal makes the following finding. As the sponsor Mrs Thi Vinh Trinh has passed away the applicant's sponsorship is no longer in place and approved by the Minister and the applicant is no longer a carer of a person referred to in clause 836.212, the applicant does not meet cl.836.227.

17. Accordingly the review applicant does not meet cl.836.227 in Schedule 2 of the Regulations.

    DECISION

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

    Mary Urquhart
    Member