1507745 (Migration)

[2016] AATA 4393

1507745 (Migration) [2016] AATA 4393 (5 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tan Thong Truong

VISA APPLICANTS:  Mr Hoa Hung Nguyen
Mr Hung Thinh Nguyen

CASE NUMBER:  1507745

DIBP REFERENCE:  OSF2015/070983

MEMBER:Rosa Gagliardi

DATE:5 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants a Subclass 445 (Dependent Child) visa.

Statement made on 5 September 2016 at 4:41 pm

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 1 June 2015 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 17 April 2015. The delegate refused to grant the visa on the basis that they did not continue to be dependent children of a visa-holding parent (as defined) at the time of decision and therefore did not meet cl.444.221 of a Subclass 445 (Dependent Child) visa.

3. The review applicant appeared before the Tribunal on 19 July 2016 and on 5 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicants claim to be dependent children of a visa holding parent.  Departmental records indicate that the applicants’ mother, Ms TRAN Thi Thanh Thuy, was granted a subclass 820 (Spouse) visa on 2 October 2013, being sponsored by Mr TRUONG Tan Thong.  Therefore, at the time of application, Ms Tran the visa applicants’ mother, was a visa-holding parent.

7. On 28 May 2015, Ms Tran’s subclass 820 (Spouse) visa was refused by the department’s Permanent Partner Section, Melbourne, and on that date Ms Tran ceased to be a visa-holding parent.

8. Clause 445.221 requires that at the time of decision, the parent of the applicants continue to be “a visa-holding parent”.  In the regulations visa-holding parent is defined by cl.445.111 as follows:

   For this Part, the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:

   (a)     Subclass 309 (Spouse (Provisional));
   (aa)     Subclass 309 (Partner (Provisional));
   (b)       Subclass 310 (Interdependency (Provisional));
   (c)       Subclass 445 (Dependent Child);
   (d)       Subclass 820 (Spouse);
   (da)     Subclass 820 (Partner);
   (e)       Subclass 826 (Interdependency). 
   
   

9. When the department made its decision on 1 June 2015 the applicants could no longer be considered the dependents of a visa-holding parent as Ms Tran’s subclass 820 had been refused on 28 May 2015.  The Tribunal, as explained at hearing held on 5 September 2016, cannot cure that the applicants were not the dependents of a visa-holding parent when the department made its decision – the applicant’s mother could not be said to continue to hold a visa she never held. 

10. The Tribunal as it is currently constituted remitted the overall subclass 801 visa to the department on 27 August 2016, with the direction that Ms Tran met cl.801.211(2)(c).  The Tribunal undertook at the time of Ms Tran’s hearing of the refusal of the subclass 801 visa, to look into whether the Tribunal could apply a beneficial reasoning in terms of time of application and decision to remit the visa applicants’ case only on the condition that Ms Tran met all the criteria for the subclass 801 visa.  The Tribunal considered that this would mean that the applicants would not need to re-apply for a Child visa or any other visa.

11. Having had regard to the definition of a visa-holding parent, however, as per cl.445.111, the Tribunal notes that even were Ms Tran to be granted her subclass 801 visa on meeting all the criteria, the Tribunal would have no basis to remit the visa applicants’ case on a conditional basis because the holder of a subclass 801 visa, is not listed under cl.445.111 as meeting the definition of a visa-holding parent.  At hearing the migration agent argued that subclass 820 and 801 need not be viewed as being mutually exclusive.  The Tribunal is not persuaded about this interpretation of the regulations, however, as if it had been intended that a parent holding a subclass 801 visa was considered a “visa-holding parent”, subclass 801 would have been specified under cl.445.111.

12. The applicant must meet clause 445.221 in Schedule 2 of the Regulations and there are no other subclasses in this class of visa against which to consider the application. 

13. The applicants have requested that the Minister consider their case as the first named visa applicant on applying for a subclass 101 visa would be over 25 years of age and this would mean that he could not meet the criteria to join his mother in Australia.  The migration agent argued that it was not the fault of the sponsor, being the applicants’ mother, that she did not continue to hold a subclass 820 visa at the time of decision; the implication being that having finally met cl.801.211(2)(c), it could be assumed that she would have held a subclass 820 visa but for the department’s refusal of 28 May 2015.  The Tribunal stated that it would highlight that the applicants have sought ministerial intervention and will request that the department assess the case against the relevant guidelines. 

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicants a Subclass 445 (Dependent Child) visa.

    Rosa Gagliardi
    Member