Tran (Migration)

[2019] AATA 819

Tran (Migration) [2019] AATA 819 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms My Phung Tran

CASE NUMBER:  1729754

HOME AFFAIRS REFERENCE(S):           CLF2016/29093

MEMBER:Ann Duffield

DATE:24 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 24 January 2019 at 1:18pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship undertaking – signed by husband – illiteracy – no evidence of Power of Attorney or State Public Guardianship – ability to understand scope and extent of undertaking obligations – dementia – no approved sponsorship – decision under review affirmed

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

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 and Border Protection on 7 November 2017 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 applied for the visa on 11 May 2016. At that time, 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. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.227 which requires that the sponsor has the ability to undertake the sponsorship undertaking and to understand her obligations.

3. The delegate refused to grant the visa on the basis that cl.836.227 was not met because the sponsor had not signed the sponsorship undertaking and, as a dementia sufferer, could not understand her obligations.

4. The applicant appeared before the Tribunal on 24 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The applicant is a citizen of Vietnam born on 12 May 1960 (58 years old). She is the daughter of the sponsor, Mrs Thanh Diep Dinh born on 10 July 1940 (79 years old). The parties lodged the application on 11 May 2016.

9. The sponsor and her husband have spent more than 100 months (8 years) in Vietnam since their arrival in 1991. The applicant first arrived in Australia on a tourist visa in October 2014 before departing in January 2015. She arrived for the last time in March 2016 on a tourist visa and lodged the application subject to this review on 11 May 2016.

10. The sponsor’s husband completed and signed the sponsorship undertaking declaration on behalf of the sponsor, claiming that she has permitted him to sign all of her official documents during their marriage as she is illiterate. The department wrote to the sponsor via their migration agent requesting documents and evidence as to whether the sponsor’s husband had been appointed with a Power of Attorney or State Public Guardianship which would allow him to sign, for example, the sponsorship application on behalf of his wife. The parties responded with a letter from the sponsor’s doctor stating that she is illiterate and that her husband always looked after such matters on her behalf.

11. The delegate found that no evidence had been provided to verify that at the time of application a Power of Attorney or State Public Guardianship was in place to allow the sponsor’s husband to sign the sponsorship forms. Subsequently the delegate found that the sponsor was unable to comprehend the scope and extent of the undertaking obligations based on her medical condition (dementia) and for that reason the sponsorship was not accepted.

12. The delegate found that at the time of the decision the sponsor could not fulfil the sponsorship undertaking and therefore did not meet clause 836.227 of the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the sponsor understands and can fulfil the sponsorship undertaking.

    SPONSORSHIP

    Are the sponsorship requirements met?

14. The criteria for a Subclass 836 (Carer) visa are contained in Part 836 of Schedule 2 to the Regulations. There are both time of application and time of decision criteria.

15. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. The applicant also needs to satisfy certain criteria at the time of decision.

    Time of application criteria

    There are three criteria to be met at the time of application. These are:

    ·     the applicant claims to be the ‘carer’ of an ‘Australian relative’;

    ·      the applicant is sponsored by the Australian relative or by the partner[1] of the Australian relative. The sponsor must:

    -    have turned 18;

    -    be a settled Australian citizen, permanent resident or eligible New Zealand citizen;

    -    be usually resident in Australia; and

    -    if the abovementioned partner is the sponsor, he or she must cohabit with the Australian relative.

    Time of decision criteria

    At the time of decision, the primary visa applicant must satisfy the following criteria:

    ·     the applicant is the carer of the ‘Australian relative’; Note that the Australian relative must be the same relative that the applicant claimed to be carer of at the time of application.

    ·     the applicant and family members (including those who are not applicants for the visas) satisfy certain Public Interest Criteria, and applicable special return criteria;

    ·     the sponsorship has been approved and is still in force (cl.836.227).

16. At the Tribunal hearing the parties provided the Tribunal with a letter from the sponsor’s GP stating that the sponsor had multiple medical conditions including dementia, depression, insomnia, high risk for falling, hypertension, severe hearing impairment, poor vision, osteo arthritis, osteoporosis and peptic ulcer disease. The letter was not on letterhead and was not a statutory declaration.

17. The sponsor attended the hearing along with the applicant and her sister. The parties were represented. The sponsor was unable to participate in the hearing due to her cognitive impairments.

18. The parties informed the Tribunal that the sponsor’s husband had died in the past two years and that the applicant had therefore become the sponsor’s sole carer. They provided no additional evidence to support these claims, but the Tribunal has no reason to doubt that the applicant has provided such care.

19. The Tribunal asked the parties if the sponsor had the capacity in the intervening period to appoint anyone as her Power of Attorney or State Public Guardian and they said that only the sponsor’s husband signed documents for the sponsor. Asked again to clarify if her husband, now deceased, had a lawful right to sign anything on her behalf they said that he had not.

20. The Tribunal asked the parties whether the applicant understood her sponsorship obligations and they said that she did not.

21. The Tribunal put to the parties that on the basis of the evidence, there did not appear to be an approved sponsorship in force and the Tribunal would therefore have to affirm the decision. The parties said that they would try and get another sponsorship. The Tribunal informed the parties that in order for this application to succeed the sponsorship would have to be from the same party.

22. On the basis of the evidence before it, the Tribunal is not satisfied that  at the time of application or at the time of this decision the applicant was sponsored as required by the legislation and therefore does not satisfy cl.836.213 or cl.836.227.

    CONCLUSION

23. 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

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

    Ann Duffield
    Senior Member