Tran (Migration)

[2020] AATA 3243

Tran (Migration) [2020] AATA 3243 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Phuong Dung Tran

CASE NUMBER:  1808589

HOME AFFAIRS REFERENCE(S):          CLF2016/37264

MEMBER:Peter Smith

DATE:15 June 2020

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 15 June 2020 at 6:38pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance reasonably obtained from welfare, hospital, nursing or community services – sponsorship requirements – legal authority to make health and lifestyle decisions on behalf of the sponsor – requisite capacity to understand the sponsor obligations – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2 cls 836.111, 836.213, 836.227; r 1.15

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 Home Affairs (the Minister) on 19 March 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. Sister Thi Phuong Dung Tran (the applicant), a citizen of the Socialist Republic of Vietnam, made a valid application to the Minister on 14 June 2016 for the grant of an Other Family (Residence) (Class BU) visa in which she claimed to be the carer of an Australian relative, namely her father, Mr Duc Huan Tran (Mr Tran). The term ‘carer’ is defined in regulation 1.15AA of the Migration Regulations 1994 (the Regulations). ‘Australian relative’ is defined in clause 836.111 of Schedule 2 to the Regulations.

3. In support of her visa application, the applicant lodged with the Department of Home Affairs (the Department) several other documents, including information about Mr Tran’s health such as a medical report prepared by a Geriatrician and the relevant approved sponsorship form purportedly signed by Mr Tran on 3 June 2016.  The medical report lodged by the applicant stated that on 19 May 2016 Mr Tran was examined by a Geriatrician in connection with the visa application.  The report stated that following the examination, the Geriatrician diagnosed Mr Tran as suffering from mixed type dementia, and the relevant approved sponsorship form purportedly signed by Mr Tran on 3 June 2016 after Mr Tran’s medical diagnosis. 

4. At the time of application, item 1123B of Schedule 1 to the Regulations provided for the grant of an Other Family (Residence) (Class BU) visa.  At the time of application, the (Class BU) visa contained three subclasses: 835 (Remaining Relative), 836 (Carer) and 838 (Aged Dependent Relative): item 1123B(4).   In the present case, the applicant only makes claims against the criteria or requirements for the grant of a subclass 836 carer visa. 

5. At the time of application, Part 836 of Schedule 2 to the Regulations set out the criteria or requirements that a non-citizen must satisfy for the grant of a subclass 836 carer visa.  The primary criteria must be satisfied by at least one member of a family unit.  The other members of the family unit (if any) who are applicants for a visa of this subclass need only satisfy the secondary criteria: cl.836.2.  In the present case, the primary criteria also include the sponsorship requirements mentioned in cl.836.213 of Schedule 2 to the Regulations.

THE DELEGATE’S DECISION

1. The delegate decided under s.65 of the Act to refuse to grant the applicant an Other Family (Residence) (Class BU) visa because the delegate was not satisfied that the criteria or requirements for the visa were satisfied at the time of application and at the time of decision.

1. The delegate determined that the applicant was not a carer of an Australian relative within the meaning of reg.1.15AA because the applicant did not provide sufficient evidence to the Department that assistance for Mr Tran could not reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by reg.1.15AA(1)(e)(ii).  The delegate was not satisfied that the sponsorship requirements mentioned in cl.836.213 had been approved by the Minister and still in force at the time of decision as required under cl.836.227 because the applicant did not provide the Department with evidence that someone had the legal authority to make health and lifestyle decisions on behalf of Mr Tran.

THE TRIBUNAL PROCEEDING

1. The applicant made an application to the Tribunal on 28 March 2018 for review of the delegate’s decision to refuse to grant the applicant an Other Family (Residence) (Class BU) visa.  Attached to her application for review is a copy of the delegate’s notification letter and Decision Record both dated 19 March 2018.

2. The applicant was assisted in relation to the review by her authorized representative and recipient, a registered migration agent and an Australian legal practitioner.

10.To assist it determine whether Mr Tran’s purported sponsorship could be met, on 18 December 2019, the Tribunal wrote a letter to the applicant pursuant to s.359(2) of the Act inviting her to provide to the Tribunal specific information the Tribunal considered relevant to the review.  The terms of the invitation are reproduced below:

…

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant an Other Family (Residence) (Class BU) visa.

The Carer Visa Assessment Certificate issued by BUPA states that the sponsor, Duc Huan Tran, has impaired mental capacity.  To assess whether the sponsor’s obligations and undertaking can be met, you should advise us if any person has legal authority to act on behalf of the sponsor (including making health and lifestyle decisions on behalf of the sponsor).

You are invited to provide the following information in writing:

1.If such a legal authority is in place, provide a copy of that document, photo ID (which includes signature) from all parties to the document, and a statement from each party detailing their support for the Carer visa application.

2.If a State Public Guardian for the sponsor is in place, provide a letter supporting the sponsorship.

3.If a State Public Guardian for the sponsor is not in place, provide a letter from the medical practitioner stating the period of time they have treated the sponsor as a patient and whether the sponsor understand the sponsorship and its obligations from the time of visa application 14 June 2016.

The information should be received by 2 January 2020.  If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 2 January 2020, you may ask us for an extension of time in which to provide the information.  If you make such a request, it must be received by us before 2 January 2020 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333.  For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

…

11.The invitation was sent to the applicant at the email address of the applicant’s authorized representative and recipient, her registered migration agent and an Australian legal practitioner, being the last email address provided to the Tribunal in connection with the review, as notified by the applicant on her application for review on 28 March 2018.

12.The applicant was invited in writing to provide the Tribunal with information by 2 January 2020, being the prescribed period specified by the Tribunal in which the applicant was required to provide the information.  The Tribunal informed the applicant that if she could not provide the Tribunal with the information by 2 January 2020, she may ask the Tribunal to extend that period for a prescribed further period.  The Tribunal informed the applicant any request for extension must be made in writing before 2 January 2020, and if made, must state the reason why she required an extension of time to provide the Tribunal with the relevant information. 

13.Importantly, the applicant was informed by the Tribunal that if the Tribunal did not receive the information within the prescribed period or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that any entitlement to appear before the Tribunal to give evidence and present any arguments relating to the issues in the review might otherwise be lost.

14.The Tribunal observes that it did not receive any information from or on behalf of the applicant by 2 January 2020.  The Tribunal observes also that it did not receive any written request from or on behalf of the applicant to extend the prescribed period in which to provide the information.

15.The Tribunal acknowledges that it did receive an email on 6 January 2020 from the applicant’s representative who attached a medical certificate from Mr Tran’s General Practitioner, Dr Van Phuoc Vo dated 23 December 2019. 

16.The email states:

Dear Sir/Madam

We refer to the above matter and your letter of 18/12/2019.  We are instructed that Mr Tran has the mental capacity to decide and manage his own affairs.  At current, the review applicant is the sole carer for Mr Tran.

We enclose Dr. Vo’s letter dated 23/12/2019 for your record.  We are instructed that Dr. Vo has been Mr Tran family doctor for many years.

17.Dr Vo certifies the following on his medical certificate:

Medical Certificate

This is to certify that I have today examined Mr Duc Huan Tran (sic) is having hypertension, osteoarthritis with difficult walking and type 2 diabetes mellitus,
recent gastrointestinal bleeding with normal mental capacity.

Recommendations:
In my opinion, he is able to make good decision about his welfare, support and financial matters.

18.The Tribunal observes that the email and the medical certificate were received after the time in which the applicant was required to provide the information had passed.  The Tribunal observes also that no request was made by or on behalf of the applicant to provide information after 2 January 2020. 

19.The Tribunal has considered the email and the medical certificate received on 6 January 2020.  The Tribunal has determined that the email and the medical certificate are not materially relevant to the question of whether Mr Tran’s purported sponsorship can be met.  The Tribunal observes that the email did not attach any evidence that there was legal authority in place at the time of application that gave someone the power to make health and lifestyle decisions on behalf of Mr Tran.  Although the Tribunal accepts that the email did attach a medical certificate from Mr Tran’s General Practitioner, the Tribunal observes that the medical certificate did not, as specified in the invitation, state the period of time in which Dr Vo has treated Mr Tran as a patient and whether Mr Tran understood the sponsorship and its obligations from the time of visa application (i.e. on 14 June 2016). 

20.Given that the Tribunal did not receive the information it sought in its invitation of 18 December 2019 within the prescribed period or within a prescribed further period, s.359C(2) of the Act applies.  The effect of this provision is that the Tribunal has the discretion to make a decision on the review without taking any further action to obtain the information.  Further, as s.359C(2) applies, the applicant loses any entitlement to appear before the Tribunal to give oral evidence and present any arguments relating to the issues in the review under s.360(3) of the Act something the Tribunal informed the applicant in its invitation of 18 December 2019.

21.The Tribunal has considered whether it should exercise its discretionary power under s.363(1)(b) of the Act by adjourning the application for review to give the applicant a further opportunity to provide to the Tribunal the information it sought in its invitation of 18 December 2019.

22.In considering whether to adjourn the application for review, the Tribunal has had regard to the judgments in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where it has been held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18regarding the reasonableness of any request for an adjournment, and the Full Federal Court judgment in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the judgment in Kaur v Minister for Immigration and Border Protection[2014] FCA 915 where analogous issues were discussed.

23.The Tribunal has taken into account that the applicant provided a copy of the delegate’s Decision Record with her application for review on 28 March 2018.  The Tribunal observes that the applicant has been aware since as early as 30 August 2016 about the issues in the review.  The Tribunal observes that the applicant has been aware of the reasons why her visa application was refused by the delegate.  The Tribunal observes that despite the applicant being asked numerous times to provide specific information about Mr Tran’s purported sponsorship, no information has been provided.

24.The Tribunal has also taken into account the applicant has since the date of visa application been represented by two registered migration agents both of whom are Australian legal practitioners.  It is not unreasonable for the Tribunal to expect that the applicant’s representatives would understand the statutory regime in respect of migration matters and the consequences that can follow for an applicant who does not provide information sought by the Tribunal in response to a statutory invitation.

25.Further, the Tribunal considers that the applicant has had sufficient time to provide the information having been given three opportunities by the delegate and the further opportunity given by the Tribunal on 18 December 2019.

26.In the circumstances, the Tribunal has decided not to exercise the discretion available to it under s.360(3) of the Act. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

28.In the present case, the question for the Tribunal to determine is whether at the time of application (i.e. 14 June 2016).  In determining this question, the Tribunal has had regard to the material held on the file provided to it from the Department and the material held on the Tribunal file.

29.Clause 836.213 of Schedule 2 to the Regulations requires at the time of application the applicant is sponsored by an Australian relative who has turned 18, is a settled Australian citizen, permanent resident of Australia or eligible New Zealand citizen who is usually resident in Australia.

30.At the time of application, the applicant provided in support of her visa application a report of Dr Ernest Tam, a Consultant Physician and Geriatrician dated 30 May 2016.  Dr Tam states in his report that he assessed Mr Tran on 19 May 2016.  Dr Tam states in his report that Mr Tran suffers from mixed type dementia. 

31.On 3 June 2016 Mr Tran purportedly signed the relevant approved sponsorship form in which he agreed to undertake the obligations of a sponsor in relation to the applicant’s visa application notwithstanding he had been diagnosed with mixed type dementia on 19 May 2016. 

32.For the purposes of regs.1.15AA(1)(b) and 1.15AA(2) of the Regulations, on 22 June 2016 Mr Tran was assessed by a Commonwealth Medical Officer (CMO) at BUPA Medical Services.  The CMO prepared a Carer Visa Assessment Certificate (the CVAC) on 22 June 2016. 

33.The CMO diagnosed Mr Tran as suffering from mixed type dementia.  The CVAC states that under Table 7: Brain Function – details of impairment: mixed type dementia – MMSE 13/30. Not oriented to place and time, recognizes person. Requires assistance with ADLs, frequent prompting and reminding. The CVAC states that Mr Tran’s impairment is permanent.

34.On 30 August 2016 and 4 January 2017, the delegate wrote to the applicant requesting her to provide to the Department evidence to show whether another person had at the time of application the legal authority to make health and lifestyle decisions on behalf of Mr Tran.  No such evidence was provided to the Department.

35.On 19 February 2018 while responding to the Department’s correspondence of 23 January 2018 in which the applicant was asked to provide evidence that someone at the time of application had the legal authority to make health and lifestyle decisions on behalf of Mr Tran, the applicant’s then representative said in his email: Our client is (sic) apply to NCAT for the guardianship decision on the sponsor and contact or community organisation for the available assistant (sic).  However, the process will take sometimes as such we would like to the case officer would grant our client 4 more weeks extension to provide all document (sic).

36.As mentioned above at para [10], the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information to the Tribunal relevant to whether there was a legal authority in place at the time of application that gave someone else the power to make health and lifestyle decisions on behalf of the sponsor and whether Mr Tran had the capacity to understand the obligations as a sponsor he had agreed to undertake.  No such evidence has been provided to the Tribunal.

37.Given that the applicant has not provided the information about whether Mr Tran’s sponsorship the Tribunal is entitled to conclude that no such information exists. 

38.Based on the medical evidence before the Tribunal and in the absence of the information sought the Tribunal is not satisfied on the evidence before it that Mr Tran had the requisite capacity to understand the obligations of a sponsor he agreed to undertake on the sponsorship form.

39.For the reasons given above, the Tribunal finds that the applicant does meet the criteria for the grant of a subclass 836 carer visa.

40.Finally, in respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the criteria or requirements for the visa sought.

DECISION

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

Peter Smith
Member