1411902 (Migration) - [2015] AATA 3538

1411902 (Migration) [2015] AATA 3538 (9 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ny Son
VISA APPLICANT:  Mr Van Nam Truong
CASE NUMBER:  1411902
DIBP REFERENCE(S):  2010070160
MEMBER:Glynis Bartley
DATE:9 October 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· cl.309.311 of Schedule 2 to the Regulations; and
· cl.309.321(a) of Schedule 2 to the Regulations
Statement made on 9 October 2015 at 2:17pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant, Mr Van Nam Truong, a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act). Mr Truong is 24 years old and is a citizen of Vietnam.
The primary visa applicant, Ms Thi Cam Hang Pham, applied for the visa on 23 July 2010 on the basis of her relationship with the sponsor, Mr Son. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Ms Pham’s four children, including Mr Truong, were included in the application as secondary applicants.
The visa applications were refused on 9 December 2010 because the delegate was not satisfied that Ms Pham and Mr Son were in a genuine and continuing spousal relationship. Mr Son sought review of that decision, and on 8 November 2012 the Migration Review Tribunal (differently constituted) remitted the decision regarding Ms Pham to the Department with directions.
On 14 May 2014 a delegate refused to grant the visa to Mr Truong on the basis that he did not satisfy cl.309.321 of Schedule 2 to Regulations. The delegate was not satisfied that Mr Truong was a “member of the family unit” of Ms Pham.
On 7 July 2014 Mr Son applied to this Tribunal for review of the delegate’s decision.
Mr Son appeared before the Tribunal on 17 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Pham and Ms Thi Cam Tam Do in person and from Mr Truong by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.
Mr Son was represented in relation to the review by his registered migration agent who appeared at the hearing.
Prior to the hearing, Mr Son’s migration agent provided further documentation to the Tribunal including but not limited to the following: a copy of the Record of Decision, statutory declarations by Mr Truong, Ms Pham, Mr Son and Ms Do, documents regarding Mr Truong’s study in Vietnam, money transfer receipts and a statement by Mr Dinh Khang Vo regarding money transfers from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1411902 (Migration)

Details

AGLC: 1411902 (Migration) [2015] AATA 3538
Case: [2015] AATA 3538
Decision Date: 9 October 2015

CaseChat Overview and Summary

The case involved a review application by Mr Truong for a Partner (Provisional) visa, where the primary applicant was Ms Pham. The dispute centred on whether Mr Truong qualified as a member of Ms Pham’s family unit under the secondary criteria outlined in the Migration Regulations. The case was heard and decided by the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether Mr Truong satisfied the secondary criteria to be considered a member of Ms Pham’s family unit. Specifically, the Tribunal had to determine if Mr Truong met the requirements under clause 309.311 and clause 309.321(a) of Schedule 2 to the Regulations. These criteria require the secondary visa applicant to be a member of the family unit of the primary visa applicant who has met the primary criteria, and to continue to be a member of that family unit at the time of the decision.

The Tribunal examined the definitions and criteria set out in the Migration Regulations, including the definition of "member of the family unit" and "dependent child." The Tribunal assessed the provided evidence, including statements from Mr Truong’s landlord and documents regarding Ms Pham’s employment, to determine if Mr Truong met the criteria for being a dependent on Ms Pham. The Tribunal concluded that the necessary criteria had not been met, leading to the decision to remit the application back to the Minister for reconsideration with specific directions.

The Tribunal remitted the application for a Partner (Provisional) visa back to the Minister, with a direction that Mr Truong met the criteria under clause 309.311 and clause 309.321(a) of Schedule 2 to the Regulations. The decision required the Minister to reconsider the application in light of these findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

After the hearing the review applicant’s migration agent provided a statement from Mr Truong’s landlord and documents regarding Ms Pham’s employment.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Mr Truong is a member of the family unit of the primary visa applicant, Ms Pham. Part 309 of Schedule 2 contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who has satisfied the primary criteria. Subclause 309.311 provides that at the time of application: 309.311 The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. At the time of decision the secondary visa applicant must continue to be a member of the family unit of a person who has satisfied the primary criteria; cl.309.321. The term ‘member of the family unit’ is defined in r.1.12 as:Reg 1.12 Member of the family unit1.12 (1) Subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a) a spouse of the family head; or(b) a dependent child of the family head or of a spouse of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or[(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note](e) a relative of the family head or of a spouse of the family head who:(i) has never married or is widowed, divorced or separated; and(ii) is usually resident in the family head's household; and(iii) is dependent on the family head. The term ‘dependent child’ is defined in r.1.03“dependent child”means the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married), being a child who:(a) has not turned 18; or(b) has turned 18 and:(i) is dependent on that person; or(ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The term ‘dependent’ is defined in r.1.05A;Reg 1.05A Dependent1.05A (1) Subject to subregulation (2), a person (the "first person") is dependent on another person if:(a) at the time when it is necessary to establish whether the first person is dependent on the other person:(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.…

Decision

Reasons for decision

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 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:· cl.309.311 of Schedule 2 to the Regulations; and· cl.309.321(a) of Schedule 2 to the RegulationsGlynis BartleyMember

Ratio Decidendi

Legal Principle Established

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