Do (Migration)

[2023] AATA 744

Do (Migration) [2023] AATA 744 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quoc Vuong Do

CASE NUMBER:  2115163

HOME AFFAIRS REFERENCE(S):          BCC2020/1375395

MEMBER:Ian Berry

DATE:16 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 16 March 2023 at 1:58pm

CATCHWORDS 
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant is not the de facto partner of the family head – applicant was not a member of the family unit of a person who holds a Subclass 485 visa – Tribunal does not have any discretion to waive the requirement of cl.485.311 – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.12, 1.03, Schedule 2, cl 485.311

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 (DOHA) to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 April 2020. The delegate refused to grant the visa on 22 October 2021 on the basis that the applicant did not satisfy the requirements of cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 485.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of Ms Ngoe Minh Quan TRAN at the time of decision.

3. The applicant appeared before the Tribunal on 1 February 2023 to give evidence and present arguments. The Tribunal only received oral evidence from the applicant.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant is a member of the family unit of Ms Ngoe Minh Quan Tran and satisfies cl 485.311.

7. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

8. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

9. In this instance, the applicant is not claiming to be the de facto partner of Ms Ngoe Minh Quan Tran.

10. A person is a ‘de facto partner’ if they are in a ‘de facto relationship’ with the family head. ‘De facto partner’ is defined by s 5CB the Act, which provides that: the couple must not be married to each other or related by family; the couple must have a mutual commitment to a shared life to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.

11. When considering whether the above requirements in s 5CB are satisfied and the applicant is the de facto partner of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

12. The applicant had no hesitation in confirming with the Tribunal that he and Ms Tran have finally separated.  He explained the circumstances where, it was decided by Ms Tran and the applicant, she would accompany him to Tasmania where he was of the primary applicant.  Ms Tran, according to the applicant, changed her mind and was unprepared to travel to Tasmania resulting in the termination of their de facto relationship.  He was left in the position of now having to apply under a new visa application in Tasmania which was always his intention.

13. The applicant needed to obtain legal advice as to his position in securing a visa outcome, which in the circumstances, appeared to be reasonable.  The Tribunal afforded the applicant such reasonable time to secure his skill assessment, which he has now obtained.  He now needs to proceed to lodge the appropriate visa application whether it be a 189 or 190 visa.

14. As the applicant was advised by the Tribunal, it is prepared to allow the applicant reasonable time in which to sort out his affairs, but ultimately he cannot succeed on this application which was duly acknowledged by the applicant. 

15. Accordingly, the applicant is not the de facto partner of the family head and cl 485.311 is not met.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Ian Berry
    Member

    1.12   Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)    a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)    is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …