Nguyen (Migration)

[2019] AATA 281

Nguyen (Migration) [2019] AATA 281 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trung Trien Nguyen

CASE NUMBER:  1618709

DIBP REFERENCE:  CLF2013/127289

MEMBER:Rosa Gagliardi

DATE:15 January 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 15 January 2019 at 5:29pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – no sponsorship approval – sponsor passed away – 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 Immigration on 2 November 2016 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 5 June 2013. 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 visa on the basis that cl.836.227 was not met because it is required that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.  The sponsor, however, passed away on 19 August 2015 and therefore the sponsorship ceased on that day.

4. The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The regulations in relation to sponsorship arrangements were explained to the review applicant at hearing and are set out below. Cl.836.227 requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

   836.213

   The applicant is sponsored:

   (a)      by the Australian relative, if the Australian relative:

   §(i)      has turned 18; and

   §(ii)      is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   §(iii)      is usually resident in Australia; or

   (b)      by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:

   §(i)      has turned 18; and

   §(ii)      is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   §(iii)      is usually resident in Australia; and

   §(iv)      cohabits with the Australian relative.
   
   

   o    836.22      Criteria to be satisfied at time of decision

   §  836.221

   The applicant is a carer of a person referred to in clause 836.212.

7. At the time of application the applicant was sponsored by his mother, the Australian relative.  On 30 October 2014 the Tribunal as it was previously constituted, remitted the decision to refuse the visa back to the Department for reconsideration with the direction that at that time the applicant was the carer for his mother.  The Department had initially refused on the basis that it was not accepted that the applicant was the sponsor’s carer.

8. On 18 October 2016 the application was assessed having been released from the queue and it was noted that the carer of the applicant, Thi Son Nguyen, and the applicant had departed Australia on 8 March 2015.  However, only the applicant had returned to Australia on 10 May 2015 and the sponsor remained in Vietnam.  The Department had concerns that if the applicant were his mother’s carer, it was incongruent that she should have stayed overseas and was no longer in the applicant’s care.  This matter was put to the applicant in the interests of natural justice by the Department.  However, at that point (when the Department wrote to the applicant on 18 October 2016) the Department were unaware that on 19 August 2015, the sponsor had already passed away. 

9. On 1 November 2016 the applicant finally provided a translated death certificate for the sponsor, Thi Son Nguyen, issued by the Department of Justice of Vinh Long Province in Vietnam, dated 21 October 2015, stating that the sponsor had died in Vietnam. 

10. At hearing the applicant stated that his wife had been looking after his mother in Vietnam and he showed the Tribunal photographs of his wife with his mother.  He also provided oral evidence that he had taken care of his mother.

11. As the Tribunal put to the applicant at hearing, however, when the Department had raised the issue of the applicant’s travel it had no notice that the person he was caring for, his mother, had died.  Hence, the issue of whether he had travelled with his mother and who had looked after her in Vietnam at the time of decision is no longer relevant.  The death of the sponsor who was the person being cared for ceased the sponsorship of the application on 19 August 2015.

12. The applicant expressed a desire to remain in Australia.  He claimed that he wanted to look after his brother and provided the Tribunal with material regarding his brother’s condition and need for care.  As the Tribunal explained to the applicant at hearing, however, the applicant cannot simply substitute a sponsorship with another.  A sponsorship has to be approved by the Minister and the Tribunal has no evidence before it that the Minister has approved the applicant being sponsored by his brother.

13. The applicant asked the Tribunal questions about how to go about applying to be his brother’s carer.  The Tribunal advised, however, that it was not in a position to provide migration advice and that he should obtain such advice from a migration specialist.

14. As the applicant’s sponsorship is no longer in place and approved by the Minister and given that the applicant is no longer a carer of a person referred to in clause 836.212, the applicant does not meet cl.836.227.

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

16. 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.  There is no evidence before the Tribunal that the applicant meets the criteria for an Aged Dependant Relative or a Remaining Relative or any other subclass.

    DECISION

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

    Rosa Gagliardi
    Member