Huynh (Migration) - [2024] AATA 3522

Huynh (Migration) [2024] AATA 3522 (9 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Dinh Minh Huynh
VISA APPLICANT:  Ms Hong Ngoc Huynh
CASE NUMBER:  2005973
HOME AFFAIRS REFERENCE(S):          OSF2017/019584
MEMBER:Justine Clarke
DATE:9 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 09 September 2024 at 12:40pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining relative) – remaining relative of an Australian relative – biological siblings – usually resident in Australia – no near relatives – mother usually residing in Vietnam – other subclasses considered – serious, ongoing and irreversible harm and continuing hardship – medical conditions – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 115.211, 115.221
CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 24 January 2020 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
It is claimed that the review applicant and the visa applicant are siblings.
On 10 February 2017, the visa applicant, who is a national of Vietnam, applied for the visa. At that time, the visa applicant was 29 years of age. At the time of this decision, she is 36 years of age.
At the time the application, Class BO contained three subclasses: Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 115.221.
The review applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that cl 115.221 was not met because reg 1.15 was not met.
The review applicant was unrepresented in this review.
On 29 August 2024, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from Ms Thi Cam Tien Tran (the review applicant’s partner) and from the visa applicant, by telephone from Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended the hearing in person.
Before the conclusion of the hearing, the Tribunal granted the review applicant further time, until 5 September 2024, to submit evidence in support of his request that the matter be referred to the Minister for his consideration on the exercise of his Ministerial powers.
On 2 September 2024, the review applicant submitted further evidence.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the visa applicant is the remaining relative of the review applicant, who the visa applicant claims is their Australian relative.
For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).
In this case, the review applicant is the visa applicant’s brother (discussed below). At the hearing, the review applicant gave credible oral evidence that, at the time the visa applicant applied for the visa, he was an Australian permanent resident and that, at the time of the hearing, he was an Australian citizen. The Tribunal accepts the review applicant’s oral evidence in this respect. The Tribunal also notes that, in the primary decision, the delegate said that it had been ‘demonstrated’ that the review applicant was an Australian citizen. Accordingly, the Tribunal finds that the review applicant is an Australian relative for these purposes.
Is the visa applicant a remaining relative of an Australian relative?
To be granted a Subclass 115 visa, the visa applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application and continue to be a ‘remaining relative’ at time of decision: cl 115.211 and cl 115.221. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision.
Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the visa applicant and is ‘usually resident in Australia’.
The visa applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia (emphasis added). Additional provisions apply if the visa applicant is an adopted child.
The requirement to be a parent or sibling: reg 1.15(1)(a)
The review applicant has made consistent and repeated claims that the visa applicant is his sister. See, for example, his completed Form 40—Sponsorship for migration to Australia which is on the Department’s file. He also gave credible oral evidence about this at the hearing, which the Tribunal accepts.
Based on the evidence, the Tribunal finds that the review applicant and the visa applicant are biological siblings. The Tribunal also notes that, in the primary decision, the delegate said that it had been ‘demonstrated’ that the review applicant was the brother of the visa applicant.
As the Australian relative in this case is the brother of the visa applicant, reg 1.15(1)(a) is met.
Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)
The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in reg 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.
The Tribunal notes that, in the primary decision, the delegate said that it had been ‘demonstrated’ that the review applicant was usually resident in Australia.
At the hearing, the review applicant gave credible oral evidence, which the Tribunal accepts, that he is usually resident in Australia.
Based on the evidence, the Tribunal is satisfied that the review applicant, being the Australian relative, is usually resident in Australia. Accordingly, reg 1.15(1)(b) is met.
No near relatives: reg 1.15(1)(c)
Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.
‘Near relative’ for these purposes is defined in reg 1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.
At the hearing, the review applicant gave credible oral evidence that his father was deceased and that his mother had been granted a Subclass 143 visa and was living in his home in Melbourne. When asked, he said that he had one sibling only—the visa applicant. He said that the visa applicant was not married or in a de facto relationship and that she has no children. He said that he had advised the visa applicant not to marry or have a romantic relationship because he had paid a lot of money in respect of the visa applicant’s application for the visa.
Based on this evidence, the Tribunal finds that, at the time of this decision, the visa applicant has no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.
However, the Tribunal is mindful that the text of cl 115.221 provides: ‘[t]he applicant continues to satisfy the criterion in clause 115.211’ (emphasis added). In effect, the use of the word ‘continues’ in this clause necessitates that a visa applicant has met the criterion in cl 115.211. Clause 115.211 is a time of application criterion which requires that, at the time a visa applicant applies for the Subclass 115 visa, they are ‘a remaining relative of an Australian relative for the applicant’.
At the hearing, the Tribunal held the mistaken view that the delegate had not made a finding in respect of cl 115.211 but, rather, had proceeded to consider the time of decision requirement in cl 115.221. For this reason, at the hearing, the Tribunal informed the review applicant that the issue in review had changed from cl 115.221 to cl 115.211 and explained that it could not find that cl 115.221 was met if the evidence was that the visa applicant did not meet the time of application requirement in cl 115.211.
The Tribunal notes that, in the primary decision, the delegate had stated the following.
The [visa] applicant has stated at Part G — Details of Other Family Members of Form 47OF that she has the following family members:
·Thi Dinh Le ([date of birth omitted in these reasons], F) – Mother
·Dinh Minh Huynh ([date of birth omitted in these reasons], M) - Brother
The [visa] applicant has declared that her mother’s country of current residence is ‘Vietnam’. She has further stated that her mother is not an Australian Citizen, Australian permanent resident or New Zealand Citizen.
Department records show that Thi Dinh Le is currently in queue for a Contributory Parent Visa subclass 143 therefore, this confirm that at time of decision, Thi Dinh Le is not usually resident in Australia and is not an Australian Citizen, Australian permanent resident or eligible New Zealand Citizen.
As the [visa] applicant has declared that she has a near relative currently residing in Vietnam and the near relative is not an Australian Citizen, Australian permanent resident or eligible New Zealand Citizen, I find that, at time of making this application, the [visa] applicant did not meet subregulation 1.15(1)(c). [Emphasis added]
As the italicised part of the final sentence from this extract makes clear, the delegate did make a finding that the visa applicant did not meet the time of application requirement in cl 115.211, albeit that the delegate did not specify the provision.
Notwithstanding, the fact remains that the Tribunal cannot find that the visa applicant meets cl 115.221 because all the evidence is that, at the time of application on 10 February 2017, she was not ‘a remaining relative’ of her brother (‘an Australian relative for the applicant’) because she had a ‘near relative’—being her mother—who was at that time not an Australian Citizen, Australian permanent resident or New Zealand Citizen and who was not usually resident in Australia but rather was usually resident in Vietnam.
The review applicant did not contend that any of these facts as stated by the delegate were incorrect.
According, the Tribunal finds that, at the time the visa applicant applied for the visa on 10 February 2017, she did not meet cl 115.211 because reg 1.15(1)(c) was not met.
It follows that, because cl 115.211 was not met at the time of application, cl 115.221 is not met at the time of decision because it cannot be said that ‘[t]he applicant continues to satisfy the criterion in clause 115.211’.
CONCLUSION
For the reasons set out above, the Tribunal is not satisfied that, at the time of application on 10 February 2017 and at the time of this decision, the visa applicant was the remaining relative of an Australian Relative for the purposes of, respectively, cl 115.211 and cl 115.221. For these reasons, the visa applicant does not meet the criteria for a Subclass 115 visa.
The Tribunal also explained to the parties that Class BO contains three subclasses: Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). The Tribunal explained that it had reviewed the facts with respect to the Subclass 114 (Aged Dependent Relative) and the Subclass 116 (Carer) visas to see whether the visa applicant may meet the criteria for one of those visas but that it had formed the view that she did not.
In respect of the other visa subclasses, no claims were made that, at the time of application on 10 February 2017, the visa applicant met the criteria for a Subclass 114 (Aged Dependent Relative) visa or a Subclass 116 (Carer) visa. In respect of these two other visa subclasses, there is no material which would permit a finding that the visa applicant meets the prescribed criteria for the visa sought.
For example, with respect to a Subclass 114 (Aged Dependent Relative) visa, the evidence before the Tribunal indicates that the visa applicant was born in 1987. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the visa applicant meets the definition of the term ‘aged dependent relative’ in r 1.03 for cl 114.211 of Schedule 2 to the Regulations.
With respect to a Subclass 116 (Carer) visa, there is no evidence before the Tribunal that, at the time of application on 10 February 2017, the visa applicant claimed to be a carer of an Australian relative, as required by cl 116.211, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123A(3)(c) of Schedule 1 to the Regulations. Therefore, the visa applicant is not entitled to the grant of a Subclass 116 (Carer) visa.
CONSIDERATION OF REQUEST FOR REFERRAL TO THE MINISTER FOR INTERVENTION
At the hearing, the review applicant formally requested the Tribunal to refer the matter to the Minister for his consideration.
Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether the Tribunal had the power to make that other decision or not.
In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).
Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.
The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.
In this case, the Tribunal considers that the facts as claimed by the review applicant seem to best be described as:
strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
It is possible that the facts may also be characterised as:
circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
It will be recalled that the review applicant is an Australian citizen. In his statement addressed ‘Dear Minister’ that was submitted to the Tribunal on 2 September 2024, he stated:
I have submitted a support document detailing my mother’s medical history. I have not been able to return to Vietnam for a long time due to my demanding work schedule of over 55 hours a week. This workload is necessary to cover living expenses and to send financial support to my mother and my sister, Hong Ngoc Huynh, in Vietnam. Since my mother Thi Dinh Le arrived here on a Visa 143, I have had limited time to spend with her. Her illness contributes to my stress, as it affects my ability to work and earn a living. My wife and I both work full-time to manage our mortgage, high living costs, and our nearly four-year-old child’s school fees. The pressure we face is immense and sometimes overwhelming.
I am unable to care for my mother adequately on my own and would greatly benefit from having my sister join us. She is the only remaining family member in Vietnam, and her presence would be invaluable in helping to care for our mother. Having her here would also alleviate the financial burden of sending money to Vietnam and offer my sister a better quality of life in Australia. She would have the chance to learn English and enjoy life in a fair and supportive environment.
I kindly ask that you consider my situation. My sister has been waiting for this process for a long time 8 years and has complied with my request not to date or marry to meet the conditions for joining us. I am committed to fully supporting her while she lives with us and will assist her with English studies in Australia. Please review my mother’s medical records from her GP, which indicate that she suffers from hypertension, hypercholesterolaemia, chilblains, and knee osteoarthritis. She is very elderly now, and my wife and I are unable to spend as much time with her as we would like. Sometimes, she experiences stress due to the lack of look after from us.
Thank you for your consideration.
The Tribunal notes that the review applicant submitted a ‘to whom it may concern’ letter, dated 1 September 2024, from the named doctor treating the review applicant’s and the visa applicant’s mother, Mrs Thi Dinh Le, in support of his claims.
Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.
DECISION

The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.
Justine Clarke
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
1.15 Remaining relative
(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and
(b)the other person is usually resident in Australia; and
(c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:
(i)usually resident in Australia; and
(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and
(d)if the applicant is a child who:
(i) has not turned 18; and
(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:
at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2)In this regulation:
near relative, in relation to an applicant, means a person who is:
(a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or
(b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:
(i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or
(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).