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…

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 Huynh (Migration)

Details

AGLC: Huynh (Migration) [2024] AATA 3522
Case: [2024] AATA 3522
Decision Date: 9 September 2024

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding a Subclass 115 (Remaining Relative) visa application. The visa applicant sought to migrate to Australia as the remaining relative of her brother, who was an Australian citizen. The core dispute revolved around whether the visa applicant met the criteria for the visa, particularly the definition of a "remaining relative" and the absence of "near relatives" in Vietnam.

The Tribunal was required to determine if the visa applicant was a "remaining relative" of an "Australian relative" at the time of her application and continued to be so at the time of the decision. This involved assessing whether the review applicant (the brother) was an Australian relative, whether the visa applicant and the review applicant were biological siblings, and whether the visa applicant had any "near relatives" other than those in Australia. The Tribunal also considered whether the circumstances warranted a referral to the Minister for intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal found that the review applicant was an Australian citizen and that he and the visa applicant were biological siblings. However, the Tribunal concluded that the visa applicant did not meet the criteria for a Subclass 115 visa because she did not satisfy the definition of a "remaining relative" as required by the regulations. The Tribunal also examined the possibility of granting a Subclass 114 (Aged Dependent Relative) or Subclass 116 (Carer) visa, finding the applicant ineligible for both due to age and a lack of evidence regarding her role as a carer, respectively. While acknowledging the compassionate circumstances presented by the review applicant, including his mother's medical conditions and the financial and emotional strain on his family, the Tribunal determined that these circumstances did not meet the threshold for ministerial intervention under section 351.

Consequently, the Tribunal affirmed the decision under review, finding that the visa applicant did not meet the criteria for a Subclass 115 visa, nor for the other considered visa subclasses. The request for referral to the Minister for intervention was not granted.

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 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.