Huang (Migration)

Huang (Migration) [2024] AATA 589 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Pi Shen Huang
Ms Yen Chun Liang
Mr Chia Wei Liang
REPRESENTATIVE:  Ms Kathy Xiao Liu (MARN: 0958014)
CASE NUMBER:  2317556
HOME AFFAIRS REFERENCE(S):          BCC2019/5411080
MEMBER:Alison Mercer
DATE:21 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) subclass 187 visas.

Statement made on 21 March 2024 at 12:49pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – no response to s.359A letter – member of the family unit – spouse – final divorce order – step-children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 5F, 65, 359C, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.12; Schedule 2, cl 187.311
CASES
Hasran v MIAC [2010] FCAFC 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Sun v MIMA (2005) 146 FCR 498

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 28 October 2019. The delegate refused to grant the visas on 16 December 2019 on the basis that the primary visa applicant, Mr Thanh Dung Co, did not satisfy the requirement in cl.187.233 to have an approved nomination by his Australian employer. The delegate found that the first, second and third named applicants in this case (the primary visa applicant’s wife and children) did not satisfy the requirements of cl 187.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 187.311 of Schedule 2 relevantly requires an applicant to be a member of the family unit of a person who holds a subclass 187 visa because they meet the primary visa criteria at the time of decision.
The Tribunal received a review application on 17 December 2019. It was made by the primary visa applicant Mr Co, who included the first, second and third named applicants in the review application as members of his family unit. The review application was also accompanied by a copy of the delegate’s decision.
On 3 November 2023, the Tribunal received an authority by which the first named applicant appointed a registered migration agent, Ms Kathy Liu, as the applicants’ representative and authorised recipient for correspondence. Ms Liu noted that:
…
We had VEVO’s Ms Huang yesterday and it seems that she is no longer the holder of a valid visa, though on the last VEVO search result available on 23 September 2023, Ms Huang was still holding a BVA associated with her previous sc187 visa application.
Can you please advise us of the status of this appeal case. As advised by Ms Huang, the original appeal case (Case 1935551) was lodged in December 2019 following the refusal of a sc187 visa application where she was a dependent applicant. On 23 October 2023, Ms Huang received correspondence from the tribunal requesting her to confirm contact details following divorce from Mr Co. Ms Huang advises that she is no longer in communication with Mr Co however to her knowledge, their divorce has not been finalizes as she is engaging lawyers at the moment to deal with the matter.
In light of the above, it seems to be quite a complex situation and it is prudent that we ascertain urgently the current situation with Ms Huang’s appeal matter. I will call the Tribunal later this afternoon to discuss this case further.
…
On 6 November 2023, the Tribunal advised Ms Liu as follows:
…
Thank you for your email dated 3 November 2023 regarding the status of Ms Huang's case. We have created a separate file for Ms Huang and the children after being advised by Mr Co that he and Ms Huang had separated. The Tribunal is yet to make a decision on either Mr Co or Ms Huang and the children’s review applications. The Presiding Member has suggested that you contact the Department of Home Affairs to clarify the BVA status for Ms Huang and the children.
…
On 5 March 2024, the Tribunal wrote to the applicants via the agent to invite them, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal advised that the Department’s records indicated that they applied for subclass 187 visas on 28 October 2019, and that they did so on the basis of being members of the family unit of Mr Thanh Dung Co, who was the primary visa applicant. The Tribunal noted that he was nominated for the visa as a Retail Manager (General) by his proposed Australian employer, Benjessi Pty Ltd. The Tribunal further noted that in the Department’s decision of 16 December 2019 to refuse the applicants the visas, the delegate found that they did not meet cl.187.311 because they were not members of the family unit of a person who held a subclass 187 visa; this was because the Department had refused to grant Mr Co (the primary visa applicant) a subclass 187 visa on the same date.
The Tribunal noted that Mr Co subsequently lodged a review application with the Tribunal in respect of the decision to refuse him (and the applicants) subclass 187 visas, and he included the applicants in the review application as members of his family unit. The Tribunal sought their comments about the following information:
·in September 2023, Mr Co advised the Tribunal that he had separated from the first named applicant and he provided a copy of a final divorce order dated 24 September 2023;
·on 28 February 2024, the Tribunal affirmed the decision to refuse to grant Mr Co a subclass 187 visa; and
·accordingly, there was currently no member of the applicants’ family unit who held a subclass 187 visa, and the decision to refuse a subclass 187 visa to Mr Co was no longer under review by the Tribunal.
The Tribunal advised the applicants that this information was relevant to the review because, subject to their comments or response, it indicated that they would not meet the requirement in cl.187.311 to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right. The Tribunal explained that if it relied on this information in making its decision, this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review in relation to them.
The Tribunal invited them to provide comments or a response by 19 March 2024, noting that if they failed to do so (and failed to ask for an extension of time to do so) by this date, they would lose their entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain their response to the information.
A courtesy copy of this letter was sent to the applicants at their nominated postal address by Express Post.
The Tribunal did not receive a response (nor a request for an extension of time to respond) from the applicants or their agent by 19 March 2024. It has received no further communication from them to date.
The Tribunal is satisfied that its s.359A letter of 5 March 2024 was sent to the email address nominated by the applicants’ authorised recipient for correspondence, Ms Liu, and to the last known postal address of the applicants by post, and there is no evidence that either letter was undelivered or undeliverable.
Under these circumstances, and pursuant to ss.359C(2), 360(2)(c) and 360(3) of the Act, the applicants have lost their right to a Tribunal hearing, and the Tribunal has no power to offer them one: Sun v MIMA (2005) 146 FCR 498 at [50], Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether to make a further request for submissions from the applicants, but – in view of the fact that the Tribunal sent the applicant a s.359A letter about the issue in dispute, and the fact that the applicants had the assistance of a registered migration agent for part of the conduct of this review, and that the legal issues in this case are relatively confined – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this review is whether the applicants are members of the family unit of Mr Thanh Dung Co and satisfy cl 187.311.
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.
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).
In this instance, the applicants were initially included in the visa and review applications in which Mr Co was the primary applicant, as his spouse and step-children.
A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined in s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple 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. The definition applies to same sex and different sex couples.
When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A 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.
In this case, Mr Co provided evidence to the Tribunal indicating that a final divorce order had been made in Australia on 24 September 2023 in relation to his marriage to the first named applicant.
Accordingly, the Tribunal finds that the first named applicant is not the spouse of the family head and primary visa applicant for the subclass 187 visa, Mr Co.
A person is a member of the family unit of the family head if they are the 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 facto partner). The term ‘child of a person’ is defined in s 5CA of the Act and the term ‘step-child’ is defined in reg 1.03 of the Regulations.
The second and third named applicants were the step-children of Mr Co, the primary visa applicant, but the Tribunal is satisfied that this status ceased when the final divorce order came into effect on 24 September 2023 between Mr Co and the first named applicant, the mother of the second and third named applicants. No evidence has been provided of any orders made by the Family Court of Australia to the contrary.
Accordingly, the Tribunal finds that they are no longer the step-children of Mr Co, the primary visa applicant.
Member of the family unit is defined in reg 1.12 to mean: a spouse or de facto partner of the family head; or a child or step-child of the family head or of a spouse or de facto partner of the family head; or a dependent child of a child or step-child of the family head or of a spouse or de facto partner of the family head. Given its findings above, the Tribunal finds that none of the applicants are members of the family unit of the primary visa applicant, Mr Co, and therefore cl 187.311 is not met. The Tribunal further notes that Mr Co himself is not the holder of a subclass 187 visa, which constitutes an additional reason why the applicants cannot satisfy cl.187.311.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) subclass 187 visas.
Alison Mercer
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.
…
1.05A Dependent
(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.
(2) …

[2024] AATA 589

21 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness