Pham (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The central dispute revolved around whether the applicant met the criteria for the visa, particularly concerning the sponsorship requirement, in circumstances where the sponsor had died prior to the delegate's decision.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 836.227 of the Migration Regulations at the time of the Tribunal's decision. This required assessing the validity and enforceability of the sponsorship, given the sponsor's death. The Tribunal also considered the applicant's submissions regarding her care for the sponsor, her personal circumstances in Australia, and her lack of ties to Vietnam, as well as arguments comparing Australian law to that of the UK and US regarding deceased sponsors.

The Tribunal found that the sponsor had died on 17 October 2020, which was before both the delegate's decision on 9 November 2020 and the Tribunal's own decision. The Tribunal rejected the applicant's representative's initial argument that the sponsorship remained in force, deeming it nonsensical in light of the death certificate. While acknowledging the applicant's evidence of providing care for her brother (the sponsor) for two years and her submissions about her financial hardship and lack of ties to Vietnam, the Tribunal did not find these circumstances sufficient to overcome the failure to meet the sponsorship requirement. The Tribunal noted that the applicant had not yet requested a referral to the Minister for intervention under s.351 of the Migration Act.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa.