Pham (Migration)

[2021] AATA 2740

Pham (Migration) [2021] AATA 2740 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ngoc Lam Pham

CASE NUMBER:  2017002

HOME AFFAIRS REFERENCE(S):          CLF2018/358077

MEMBER:Justine Clarke

DATE:29 July 2021

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 29 July 2021 at 6:15pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship still in force at time of delegate’s decision – sponsor died before decision made – purpose of sponsorship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 836.227

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 9 November 2020 by a delegate of the Minister for Home Affairs 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. On 31 October 2018, the applicant applied for the visa. At the time of this decision, the applicant is a 57-year-old national of Vietnam.

3. The Department’s file contains a copy of the completed Form 40—Sponsorship for migration to Australia that was signed by the sponsor, Mr Thanh Van Dang, on 22 October 2018 and filed in respect of the application for the visa by the applicant.

4. At the time of application, 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).

5. The applicant seeks 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. The primary criteria include cl.836.213 and cl.836.227.

6. Clause 836.213 is a time of application criterion and relevantly provides:

   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[.]

7. The term ‘Australian relative’ is defined for the purpose of the Part in cl.836.111. The term ‘settled’ is defined in r.1.03.

8. Clause 836.227 is a time of decision criterion and provides:

   The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

9. The applicant provided the Tribunal with a copy of the primary decision. The delegate was satisfied that, at the time of application, the applicant met cl.836.213 but was not satisfied that, at the time of decision, the applicant met cl.836.227 because the sponsor (the applicant’s claimed brother, Mr Thang Van Dang) had died on 17 October 2020. The delegate refused to grant the visa on this basis.

10. On 23 November 2020, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by her registered migration agent.

11. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 27 July 2021, the applicant appeared, by telephone, before the Tribunal to give evidence and present arguments. The Tribunal had invited the applicant to a video hearing but, subsequently, the representative informed the Tribunal that the applicant did not have the requisite technology. Ms Dung Vu and Ms Van Nguyen also attended the telephone hearing. After hearing the applicant’s oral evidence, the Tribunal elected not to receive oral evidence from Ms Vu and Ms Nguyen, considering that neither were in a position to provide oral evidence to assist the Tribunal to determine whether the applicant meets cl.836.227. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing. All persons (the Member; the applicant; the representative; the interpreter; Ms Vu and Ms Nguyen) attended the hearing by telephone from different locations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Carer (Subclass 836) visa

13. The issue for determination is whether, at the time of this decision, the applicant meets cl.836.227.

14. The Tribunal understands that, at the hearing, the representative submitted that he believed that the sponsorship mentioned in cl.836.213 was still in force at the time of the delegate’s decision and that it continued to be in force at the time of the hearing. The Tribunal understands that he contended that this was because the sponsor had not died at the time. However, a death certificate has been submitted to the Tribunal evidencing that the sponsor died on 17 October 2020—a date prior to the date of the delegate’s decision on 9 November 2020 and prior to the date of this present decision. As the argument appears nonsensical, the Tribunal presumes that this is not what the representative meant to submit.

15. Prior to the hearing, the applicant submitted a number of documents, including written submissions filed on 21 July 2021. At the hearing, the applicant gave oral evidence that aligned with these submissions, including details of her immigration status in Australia. She told the Tribunal that she had arrived in Australia holding a Tourist visa. She said that, subsequently, she had located a brother in Australia from who she had lost contact and that he had been ‘gravely ill’. She said that she had intended to stay in Australia for three months only but that locating her brother constituted ‘very special circumstances’. She told the Tribunal that she had lived with and cared for her brother for two years. She said that she had brought money from Vietnam but that she had spent it all. She said that, at present, she has no property or money in Vietnam. She said that she was living in Melbourne near the market in St Albans. She said that, after her brother had died, she started living at this accommodation which belonged to her friends. She said that, when she had money, she paid $200–$300 in rent but that, at present, she has no money. She said that she was fit and healthy and that, if permitted to remain in Australia, she would seek to start working and to acquire a Tax File Number. 

16. At the hearing, the representative submitted that the applicant had cared for her brother on a daily basis for two years. He said that the Australian Government was obliged to provide care to the sponsor and that by having the applicant provide him with daily care, Australian taxpayers had been spared a lot of money. He told the Tribunal that the applicant had personal ties to Australia and had become used to the standard of living in Australia. He said that she had no relatives in Vietnam and that her so-called adopted son in Vietnam was not legally bound to her. He requested the Tribunal exercise compassion in this case. He submitted that, if the Tribunal could not remit the case because of the law, the applicant would be denied justice. The Tribunal also notes that, in the written submissions, it was submitted:

    In comparison with other foreign jurisdictions such as the UK and US in the Family Sponsor Program if the petitioner dies the applicant may apply for a permanent residence or Green Card in the UK and US respectively.

17. It is not for the Tribunal to comment upon the merits or otherwise of the law as it relates to a Subclass 836 visa. Rather, in this case, it is the Tribunal’s duty to assess the facts before it to determine whether the applicant meets cl.836.227.

18. However, the Tribunal notes that the Department’s Procedures Advice Manual (PAM3), which guides decision makers, outlines the purpose of sponsorship in the following way.

    ‘Sponsorship’ is a fundamental concept underpinning Family Migration. The sponsor undertakes to ensure that their family member is supported during their initial settlement in Australia and hence does not become a charge on the wider Australian community.

19. The terms of cl.836.227 appear clear: at the time of decision, the sponsorship mentioned in cl.836.213 must have been approved by the Minister and must still be in force. For this subclass, there is no provision for an applicant with an unfinished visa application to change their sponsor. Rather, it seems clear that the death of the sponsor means that the applicant will be unable to meet the time of decision criterion in cl.836.227.

20. From the evidence before it, the Tribunal is satisfied that the sponsor in this case, Mr Thanh Van Dang, died on 17 October 2020. Therefore, at the time of decision, the applicant is not sponsored as required and does not satisfy cl.836.227. For these reasons, the applicant does not meet the criteria for a Subclass 836 visa.

21. The Tribunal is required to assess the applicant against all the subclasses in the Class BU class of visa. Accordingly, the Tribunal must also make findings as to whether the applicant satisfies the criteria for an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa. At the hearing, the Tribunal asked the representative whether the applicant was making claims that she met the criteria for a Subclass 838 or a Subclass 835 visa but he replied that he had not addressed this in the written submissions because their focus had been on the Subclass 836 visa.

    Aged Dependent Relative (Subclass 838) visa

22. The evidence before the Tribunal is that the applicant was born on a specific date in March 1964. 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.

    Remaining Relative (Subclass 835) visa

23. The representative’s submission that the applicant has no family remaining in Vietnam causes the Tribunal to query whether the applicant may seek to meet the requirements of a Subclass 835 visa, even though she has not sought expressly to do so to date.

24. The Tribunal notes that for this subclass of visa, at the time of decision, the sponsorship must be approved by the Minister and be in force, although the sponsor need not be the same sponsor as at the time of application: cl.835.227.

25. The Tribunal finds that, at the time of this decision, the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa because the sponsorship of Mr Thanh Van Dang is no longer in force and no alternate sponsorship has been provided. As such, the applicant is unable to meet cl.835.227.

    Ministerial intervention

26. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

27. At the hearing, the Tribunal asked the representative whether his client was seeking to request the Tribunal to refer the matter to the Minister. He replied that he would need to seek his client’s instructions and that such a matter could be pursued as a measure of ‘last resort’ if the applicant was unsuccessful in this review. Accordingly, the Tribunal understands that the applicant is not (yet) requesting that the matter be referred to the Minister for his intervention pursuant to s.351.

    DECISION

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

    Justine Clarke
    Member