NGUYEN (Migration)

[2019] AATA 5989

NGUYEN (Migration) [2019] AATA 5989 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr TRONG HAI NGUYEN
Master VO GIA BAO NGUYEN

CASE NUMBER:  1721992

HOME AFFAIRS REFERENCE(S):          CLF2016/16214

MEMBER:Justin Owen

DATE:6 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 06 February 2019 at 12:17pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – sponsorship not in effect – change of sponsorship – previous sponsor with dementia – applicant not carer of Australian relative – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 835.212, 836.213, 836.227,836.324, 838.212, r 1.03

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 11 September 2017 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 2 March 2016. 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 which requires that the sponsorship in force at the time of application remains in force at the time of decision.

3. The delegate refused to grant the visas on the basis that cl.836.227 was not met because the delegate was not satisfied that the primary applicant’s sponsorship at the time of application was in effect at the time of decision.  The delegate furthermore found that the secondary applicant did not meet cl.836.225 as public interest criteria 4015 were not satisfied.  The delegate also found that the secondary applicant did not meet cl.836.324 as there was no evidence to demonstrate that public interest criteria 4017 were satisfied.  

4. The applicants appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his five sisters: NGUYEN, THI KIEU HANH, NGUYEN, THI NHU MAI, NGUYEN, THI THANH NGA, NGUYEN, THI THUY HUONG and NGUYEN, THI TUYET NHUNG.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are the sponsorship requirements met?

7. Clause 836.213 requires that at the time of application the review applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

8. The applicants were sponsored by Mrs Thi Ty Pham, the mother of the review applicant.  The application forms were received by the Department in Sydney on 2 March 2016. (D1, folios. 22-30). 

9. As stated in the delegate’s decision record the applicant provided the Tribunal, the applicant provided to the delegate a Carer Visa Assessment Certificate (CVAC) dated 25 November 2015 which assigned his mother the sponsor Mrs Thi Ty Pham 60 (sixty) points including a rating of 20(twenty) points for dementia. 

10. The delegate’s decision states that on 12 July 2016 the review applicant was requested to provide to the Department evidence to show whether any person had legal authority in place, at the time of application, associated with the sponsor, the review applicant’s mother Mrs Thi Ty Pham. 

11. The delegate’s decision states in response to the Department the applicant withdrew Mrs Thi Ty Pham as his sponsor and provided a new sponsorship form with his sister Ms Thi Tuyet Nhung Nguyen as the sponsor.  Ms Thi Tuyet Nhung Nguyen in oral evidence to the Tribunal claimed to reside with both the review applicant and his mother the ‘original’ sponsor. 

12. The review applicant submitted to the Department a new Form 40 – Sponsorship for migration to Australia form (D1, Folio. 221-229).  The form is signed and dated 20 July 2017 by Ms Thi Tuyet Nhung Nguyen, sponsoring the review applicant and the secondary applicant.

13. The review applicant’s assertion to the Tribunal is that his sister Ms Thi Tuyet Nhung Nguyen is now his sponsor.  At the hearing the Tribunal asked why he had attempted to change sponsors during the application process.  The review applicant replied that because of dementia his mother could not sign.  He said that as a result he re-did the sponsorship application and his sister signed.  The review applicant claimed that the Department had requested that he redo the application. 

14. The Tribunal notes the claim made by the applicant’s representative Mr Christopher Levan that there is no regulation regarding the rate of dementia that may prevent a sponsor to lodge a sponsorship under a Carer visa.  The Tribunal accepts that that is the case.  The Tribunal however also notes that a sponsor has obligations pertaining to the provision of financial assistance, accommodation and support to the applicants for a period of at least two years.  Given Mrs Pham’s decline in health and the onset of her dementia in the three years since the CVAC – as attested to both the review applicant and his sisters in oral evidence – the Tribunal has grave doubts as the ability of Mrs Pham as the original sponsor to provide the review applicant with this support.

15. The delegate’s decision also states that the review applicant through his representative also stated that there was no provision under Carer regulations which precluded a change of sponsor. 

16. At the hearing the Tribunal discussed with the review applicant as to why he had attempted to change sponsors whilst the application was being processed.  At the end of the hearing the Tribunal informed the review applicant and his representative that the Tribunal would review this issue very closely as it considered the matter vital to the application and the review.

17. The applicants were sponsored by the review applicant’s mother as required by cl.836.213 at the time of application.  Subsequent to this the review applicant some months later received a request to provide the Department with evidence to illustrate whether any person had legal authority in place associated with the sponsor at the time of application.

18. Rather than provide this the review applicant instead specifically withdrew his mother Mrs Thi Ty Pham and attempted to replace her with his sister Ms Thi Tuyet Nhung Nguyen. 

19. The review applicant did not withdraw his original application and attempt to lodge a new application.  Rather he attempted to change the sponsor on his existing application.  The applicant’s representative Mr Levan has submitted previously that there is no provision under Carer regulations that does not allow a change of sponsor (D1, Folio.235).

20. The Tribunal does not agree with the submissions of the review applicant and Mr Levan that they are entitled to change the sponsor after the lodgement of the application.  The Tribunal notes that at the time of application the applicants claimed to be sponsored by the review applicant’s mother under cl.836.213.  Cl.836.227 clearly states that the sponsorship mentioned in cl.836.213 must remain in force. It is an agreed fact that the review applicant’s mother was the sponsor at the time of application in March 2016.   It is furthermore agreed that the review applicant through his representative specifically withdrew the review applicant’s mother as sponsor after receiving a request for further information from the department concerning the sponsor in July 2016. 

21. The Tribunal has some sympathy for the review applicant’s complaint through his representative that it is ‘unfair’ that the review applicant only received invitation to comment on sponsorship eligibility in August 2017 - more than a year after he responded to the request for further information from the Department in July 2016 – and his belief that it was the department’s responsibility to request a medical report if it had a concern that Mrs Thi Ty Pham did not have the capacity to understand the sponsorship undertaking. Nevertheless this does not deflect from the very simple flaw in the review applicant’s application: namely the regulations for a Subclass 836 Carer visa do not allow for a change of sponsor after the time of application.

22. The Tribunal notes that the sponsor of a remaining relative or parent visa application for instance can be changed before the visa application is finally determined by the Department of Home Affairs.  This is not however the case with the visa subclass before the Tribunal in this review.

23. The Tribunal notes that the applicants did provide a signed Form 40 from his mother as well as evidence of her diagnosis of dementia at the time of application – as attested to in the delegate’s decision.  The review applicant was requested by the Department to provide further information that a legal authority was in place in relation to his mother the sponsor.  His response ultimately was to withdraw his mother’s sponsorship and attempt to replace her with a new sponsor being his sister Ms Thi Tuyet Nhung Nguyen.

24. On the evidence before it the Tribunal is not satisfied that the sponsor at the time of application remains the sponsor at the time of decision. The Tribunal is not satisfied that the sponsorship at the time of application remains ‘in force’ at the time of decision.  The applicants do not satisfy cl.836.227.

25. Therefore, at the time of decision, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.227.

26. The Tribunal notes the oral submissions given by the review applicant’s sisters and the various claims made pertaining to the care he claims to provide his mother.  Given the applicants do not meet cl.836.227, the Tribunal is not required to make findings on these claims.

27. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

28. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

29. 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.

30. The evidence before the Tribunal is that the applicant was born on 2 October 1957. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

31. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant.  According to the applicant’s application forms his two brothers currently reside in Vietnam.  As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

32. In relation to the application of the secondary applicant Master Vo Gia Bao Nguyen, at the hearing the Tribunal warned the review applicant and his representative that if the Tribunal affirmed the refusal of his visa application on the basis of the withdrawal of the sponsorship from the time of application, there would be a consequential impact upon the application of the secondary applicant (‘one fail, all fail’).  As the review applicant’s application has been refused by the Tribunal on the basis of the withdrawal of the sponsorship at the time of application, the secondary applicant’s is unable to satisfy the criteria for the granting of the visa. 

33. For the record the Tribunal notes that at the hearing review applicant stated that the secondary applicant now lives with and is a dependent of his step mother who is the review applicant’s former partner.  He admitted he had signed papers granting legal custody of the secondary applicant to his former partner.      

34. At the hearing the Tribunal informed the applicant that a certificate has been issued by the Delegate under s.376 of the Migration Act restricting the Tribunal from disclosing certain information in the Departmental file – folios 245 to 253 inclusive, 254, 262 and 263 - on the basis that the information was given to the Minister, or to an officer of the Department, in confidence. A copy of the Certificate was provided to the applicant at the hearing.

35. The Tribunal has discretion under s376 to disclose the information on the file. The Tribunal told the applicant it considered the certificate to be valid.

36. The Tribunal stated it was prepared to provide most of the folios covered by the s376 certificate to the applicant and explained it was principally an affidavit from the review applicant’s former partner to the Federal Court concerning the secondary applicant Master Vo Gia Bao Nguyen. The Tribunal provided the applicant with folios 245 to 253 inclusive as well as folio 254 which was an initial assessment of the Department. The Tribunal said that the remaining two folios, given they were allegations made to the Department in confidence, would not be released.

37. The review applicant was invited to make submissions on the validity of the certificate and why the remaining material should be released.  The Tribunal invited the review applicant to consult his representative and offered to adjourn the hearing whilst he did so.  The review applicant accepted the invitation. The Tribunal adjourned the hearing so the review applicant could consult his representative.

38. After the hearing resumed the applicant requested that the documents be released. The Tribunal noted the applicant’s response but said it was not prepared to release the document. The Tribunal however, noting the information covered by the s376 certificate was adverse, informed the applicant that it was prepared to provide the gist of the information to him. The Tribunal noted that it had not made up its mind about the information.

39. The Tribunal put the information to the applicant under s359AA of the Act and invited the applicant to comment on or respond to the information. 

40. The Tribunal informed the review applicant that the information in the folios was: the review applicant had informed his former partner that the secondary applicant was not your biological son but was adopted; [details deleted]; that the review applicant had [medical condition] and failed to notify the Department of Home Affairs; that the review applicant had received [details deleted]; that the review applicant does not care for his mother but she cares for him; that the review applicant has another sister who lives in Cabramatta and goes to the house a couple of times a week and cleans the house and looks after the review applicant’s mother; that the review applicant has four sisters who can look after the review applicant’s mother; and that the review applicant had listed the secondary applicant on the application as a dependent even though he lives with his mother and the review applicant only had contact with him over the phone. 

41. The Tribunal explained the relevance and consequences of the information.  The Tribunal invited the applicant to comment on or respond to the information at the hearing orally or in writing.  The Tribunal invited the applicant to consult his representative before responding and adjourned the hearing to allow him to do so.  The applicant responded that he would like to reply in writing.  The Tribunal and the review applicant agreed that the review applicant would comment on or respond to the information by 29 January 2019. 

42. On 29 January 2019 the review applicant responded in writing via his representative to the Tribunal (T1, Folio.31-34). The review applicant made a wide number of statements concerning his relationship with his former partner Mrs Christine and the breakdown of the relationship. He made a number of statements concerning the secondary applicant. The review applicant denied ever [details deleted] the secondary applicant. The review applicant said that the secondary applicant was not his biological son and he was never adopted, nevertheless he had raised the secondary applicant and brought him to Australia. The review applicant said [details deleted]. He states that on that [details deleted]. The Tribunal notes the review applicant’s response and puts no adverse weight on the allegations that have emanated from the material purportedly covered by the s376 certificate and the review applicant’s subsequent response.

    DECISION

43. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Justin Owen
    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.