Yun (Migration)

[2021] AATA 1680

Yun (Migration) [2021] AATA 1680 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jisook Yun
Mr Seong Ho Yun
Mr Dohyun Yun
Mr Sihyun Yun

CASE NUMBER:  1833949

HOME AFFAIRS REFERENCE(S):          CLF2017/63171

MEMBER:Margie Bourke

DATE:13 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the primary applicant meets the following criteria for a Subclass 836 (Carer) visa:

·cl.836.213 of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the three secondary visa applicants meet the following criteria for a Subclass 836 (Carer) visa:

·the scholarship mentioned in cl.836.213 includes the applicants for the purpose of cl.836.312 of Schedule 2 to the Regulations.

Statement made on 13 April 2021 at 2:00pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsorship requirements – person with the medical condition is not the sponsor – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 836.212, 836.213, 836.312, 836.321; r 1.15

CASES

Nguyen v MICMSMA [2020] FCA 1732

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 on 1 November 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 11 September 2017. 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 the sponsorship requirements in cl.836.213.

3. The delegate refused to grant the visas on the basis that the primary visa applicant did not meet the requirements of cl.836.212 because the delegate found the primary visa applicant did not satisfy the requirements for carer in r.1.15AA, and the secondary visa applicants did not meet the requirements of cl.836.321 because the primary visa applicant did not satisfy the primary criteria.

4. The Department decision record is dated 1 November 2018, and is based on the information available to the delegate and the relevant caselaw at the time.  At the time of this review, the tribunal accepts there has been a change in the caselaw.  The delegate recorded that for the purposes of the application for the visa, and the assessment of whether the primary visa applicant meets the requirements of r.1.15AA, the resident is the sponsor.

5. The case of Nguyen MICMSMA [2020] FCA 1732 is judgement that clarifies the sponsorship requirements of cl.836.213 do not expressly require that the sponsor and the person with the medical condition are the same person. Therefore, the Department decision, based on the premise that the sponsor is the resident for the purpose of assessing whether the primary visa applicants meet the requirements of r.1.15AA is incorrect.

6. The tribunal has considered the information available to it, and is satisfied that it can make a decision favourable to the primary visa applicant, without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

7. The tribunal is satisfied that the primary visa applicant and the sponsor are siblings.  The tribunal is satisfied that the person with the medical condition is their mother.  The delegate was also satisfied of these familial relationships between the parties.

8. Based on the notes in the Department file, I am satisfied the sponsor is an Australian citizen. Based on the identification documents I am satisfied the sponsor is aged over 18 years. Based on the information available to the tribunal, I am satisfied the sponsor is usually resident in Australia. By applying the principles espoused in the decision of Nguyen v MICMSMA, the tribunal is satisfied that as the sponsor meets these requirements, the primary visa applicant meets the sponsorship requirements in cl.836.213. For these reasons I am satisfied that the primary visa applicant meets the requirements of cl.836.213.

9. Further, the tribunal finds, based on the sponsorship forms, that the sponsorship mentioned in cl.836.213 of the primary visa applicant, includes sponsorship of the secondary visa applicants. Without making findings as to whether the primary visa applicant satisfies the primary criteria, the tribunal is satisfied that the secondary visa applicants are included in the sponsorship of the primary visa applicant for the purposes of cl.836.312.

10. The primary visa applicant can potentially meet the requirements of carer in r.1.15AA(1)(a) – (f) and (2), as pursuant to the judgment in Nguyen v MICMSMA, the person requiring care, the Australian resident within the meaning of r.1.15AA, can be a person other than the Australian relative who is the sponsor for the purposes of cl.836.213.  If the primary visa applicant meets the requirements for carer in r.1.15AA, and therefore meets the requirements for cl.836.212 (or more correctly, the requirements of cl.836.221), the secondary visa applicants may also potentially meet the secondary visa requirements of cl.836.321. These are issues that have not been, and should appropriately be assessed by the Department.  The tribunal does not make any findings on whether the visa applicants meet these criteria, but remits the matter back to the Department, to allow the Department to assess whether the applicants meet the remaining criteria for the visa.

11. For the above reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

12. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

13. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

    ·cl.836.213 of Schedule 2 to the Regulations; and

    The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the three secondary visa applicants meet the following criteria for a Subclass 836 (Carer) visa:

    ·the sponsorship mentioned in cl.836.213 includes the applicants for the purpose of cl.836.312 of Schedule 2 to the Regulations.

    Margie Bourke
    Member