Nguyen (Migration)

[2018] AATA 5451

Nguyen (Migration) [2018] AATA 5451 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thu Tam Nguyen
Miss Thanh Hoa Anh Nguyen
Master Thanh Khoa Nam Nguyen

CASE NUMBER:  1818604

DIBP REFERENCE(S):  CLF2015/26017 CLF2018/36763

MEMBER:Rosa Gagliardi

DATE:23 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence)(Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer visa) is met :

·cl.836.227 of Schedule 2 to the Regulations.

Statement made on 23 November 2018 at 2:17pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – approved sponsorship – evidence sponsorship remained in force at time of decision – sponsor’s advanced age and fragile physical state – matter expedited – requisite Form 40 received by Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 836.213, 836.227

CASES
Nguyen v MIMA (1998) 158 ALR 639

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 7 June 2018 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 836 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 April 2015. The delegate refused to grant the visa on the basis that the sponsorship specified in cl.836.213 which had been approved by the Minister was not still in force because the relevant Form 40 had not been submitted prior to the Department refusing the visa.

3. Given that this matter entails a single issue and that it appears that the failure to submit the requisite Form 40 occurred beyond the applicants’ control, the Tribunal has progressed to decision without recourse to a hearing.

4. The applicants are represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Regulations at cl.836.213 state:

   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.

7. Cl.836.213 is a time of application criterion.

8. Cl.836.227, a time of decision criterion, requires that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

9. On 26 March 2018, the Tribunal sent a letter to the applicant requesting she provide, among other things, a new Form 40 as evidence that the sponsorship in force at time of application remained in force at time of decision (a s.56 request).  No such evidence was submitted and cl.837.227 was not met.  The migration agents in question state that a regrettable administrative error occurred in their office and that the applicants have consequently been adversely affected.  The sponsor is a 96 year old woman in a very fragile physical state and her health has deteriorated significantly in the past fifteen years which has led the Tribunal to make this decision without holding a hearing to expedite the matter.

10. The applicants, through their agents, have now submitted the requisite Form 40 thereby meeting the requirements of cl.836.227.

    DECISION

11. The Tribunal remits the applications for Other Family (Residence)(Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer visa) is met :

    ·cl.836.227 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member