TRAN (Migration)

[2018] AATA 2324

TRAN (Migration) [2018] AATA 2324 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr QUANG TAM TRAN

CASE NUMBER:  1610250

DIBP REFERENCE(S):  CLF2015/60903

MEMBER:Kira Raif

DATE:31 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2018 at 10:23am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Carer – Withdrawal of sponsorship – Not willing and able to provide assistance – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994, r 1.15AA, cls 836.221, 836.227

CASES
Hasran v MIAC [2010] FCAFC 40

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 17 June 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 is a national of Vietnam born in September 2015. He applied for the visa on 29 September 2015. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer. The applicant seeks review of the delegate’s decision.

3. On 14 May 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 28 May 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

   Relevant law

5. At the time the application was made, 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.

6. Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations. Further, at the time of decision, the relevant sponsorship must be approved and to be in force – cl. 836.227.

   Whether the applicant is a carer

7. When making the application, the applicant stated that the person who needed his care was his step-nephew, Mr Tommy Trinh. The applicant was sponsored by Mr Quang Khai Tran, who completed the relevant sponsorship form. However, on 17 November 2017 the sponsor, Mr Tran wrote to the Tribunal stating that the applicant no longer wished to be the carer and withdrawing the sponsorship.

8. The Tribunal wrote to the applicant pursuant to s. 359A seeking his comments on the information supplied by Mr Tran. The applicant did not respond to the Tribunal’s invitation. In the absence of any explanation from the applicant, the Tribunal places weight on the evidence of Mr Tran. The Tribunal is not satisfied, having regard to Mr Tran’s statement, that at the time of this decision, the applicant is willing and able to provide the substantial and continuing assistance required by the person with the medical condition. The Tribunal is not satisfied the applicant meets r. 1.15AA(1)(f) and that the is a carer as defined in cl. 836.221.

9. Further, as Mr Tran has indicated that he no longer wished to sponsor the applicant, the Tribunal is not satisfied that at the time of this decision, the sponsorship has been, or ought to be, approved and the Tribunal is not satisfied that it is still in place. The Tribunal is not satisfied the applicant meets cl. 836.227.

10. The applicant is not old enough to be granted the aged pension and he is not an Aged Dependent Relative of an Australian relative. The applicant stated on the form that his parents and several of his siblings reside in Vietnam and the Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member