Huang (Migration) - [2024] AATA 589

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…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2024] AATA 589
Case: [2024] AATA 589
Decision Date: 21 March 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the refusal of Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187. The applicants had been included in the visa application as the spouse and step-children of the primary applicant, Mr. Thanh Dung Co. The core dispute revolved around whether the applicants qualified as members of Mr. Co's family unit for the purposes of the visa application.

The Tribunal was required to determine if the first applicant, who was initially identified as Mr. Co's spouse, met the definition of 'spouse' under section 5F of the Migration Act 1958 (Cth). Additionally, the Tribunal had to ascertain whether the other applicants qualified as 'step-children' of Mr. Co, as defined by regulation 1.03 of the Migration Regulations 1994 (Cth), and whether they met the age and dependency requirements outlined in regulation 1.12.

The Tribunal found that the first applicant was not Mr. Co's spouse because a final divorce order had been made in Australia on 24 September 2023. Consequently, the Tribunal concluded that the first applicant did not satisfy the definition of 'spouse' as requiring a mutual commitment to a shared life and living together or not living separately and apart on a permanent basis. Given this finding regarding the spouse, and without a valid spouse, the Tribunal determined that the other applicants could not be considered step-children of Mr. Co under regulation 1.12. Furthermore, the Tribunal noted that Mr. Co himself was not the holder of a subclass 187 visa, which was an additional reason why the applicants could not satisfy the relevant clause.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) subclass 187 visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 MercerMember1.12 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) …

Ratio Decidendi

Legal Principle Established

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