Huynh (Migration)

[2024] AATA 2243

Huynh (Migration) [2024] AATA 2243 (21 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Vu Huynh

REPRESENTATIVE:  Mr Vinh Xuan Nguyen

CASE NUMBER:  2403746

HOME AFFAIRS REFERENCE(S):          BCC2022/2685099

MEMBER:Meena Sripathy

DATE:21 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl 835.212.of Schedule 2 to the Regulations; and

·cl 835.221 of Schedule 2 to the Regulations.

Statement made on 21 June 2024 at 12:25pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – applicant provided a Death Certificate and translation for his biological father – applicant is single, and has no near relatives other than his mother who is an Australian permanent relative and usually residing in Australia –  there are no near relatives other than those permitted by the regulations – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 835.221

CASES
Ignatious v MIMIA [2004] FCA 1395
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

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 on 22 February 2024 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 July 2022. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.212.

3. The delegate refused to grant the visa on the basis that cl 835.212 was not met because the delegate was not satisfied the applicant met the definition of remaining relative in r.1.15, on the basis of his biological father, for whom he had not provided evidence of his whereabouts.  

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of his mother, Trinh Lan Anh Nguyen who the 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).

7. In this case Trinh Lan Anh NGUYEN is the applicant’s mother and Australian permanent resident and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

8. To be granted a Subclass 835 visa the 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 835.212 and cl 835.221. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision.

9. 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 applicant and is ‘usually resident in Australia’.

10. The 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. Additional provisions apply if the applicant is an adopted child.

    The requirement to be a parent or sibling: reg 1.15(1)(a)

11. As the Australian relative in this case is the parent of the applicant, reg 1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)

12. 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. On the evidence before the Tribunal of the Australian relative’s arrival and periods of stay in Australia the Tribunal is satisfied she is usually resident in Australia, and reg 1.15(1)(b) is met.

    No near relatives: reg 1.15(1)(c)

13. Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

14. ‘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.

15. The applicant declared, in a Statutory Declaration dated 8 May 2023 that he is single and has no children.  In a Form 54 Family Composition he indicates he has no siblings and his only living family member is his mother, the Australian relative.  His stepfather is deceased.

16. The delegate refused the application on the basis that the applicant indicated in his application form the name of his biological father Huyn Van My for 1.1.1960, whose whereabouts were unknown since he was one year old.  The delegate found, in the absence of evidence that his biological father is deceased, this relative must be considered a near relative for the purposes of the definition of remaining relative in r.1.15, which does not allow for or require consideration of the quality of an applicant’s relationship with their near relatives. The delegate found that the applicant’s claim that his biological father is missing, is also not sufficient, in and of itself, to be able to determine that the common law presumption of death applies to this person. 

17. The applicant applied for review to the Tribunal on 29 February 2024.   

18. On 3 April 2024 the applicant provided a Death Certificate and translation for Van My Huynh who is the applicant's biological father, and requested expedited review of the application on the basis that the visa application was refused for lack of evidence of the death of this relative and it is now provided.  A copy

19. The Tribunal requested the applicant provide a Statutory Declaration to explain how he obtained the death certificate document.

20. On   20 June 2024 the applicant provided a Statutory Declaration dated 12 June 2024 and supporting documents.  He declares he is an only child of his parents.  His parents were divorced when he was 1 year old and he never met his father after that. His mother remarried Hieu Nhon Troung, who passed away on 24 March 2022. He has no other relatives. He confirms he is single and has no children.

21. In the declaration the applicant sets out the process he undertook which led to the death certificate provided.  He approached the police about how to find a missing person, and was told that the process involves the court.  He cites Vietnamese law which indicates that a person can be declared missing by the Court if after two years no authentic information is found about whether they are alive or dead. In accordance with this process he advertised in two newspapers on 8 and 9 March 2022 and made a Statement on 1 March 2022, copies of these documents are provided. Following a period of two years from those advertisements he applied to the Court for a missing persons order. Upon conducting a search and satisfying itself he was the son, the Court advised him that his father was deceased and he was able to apply for the death certificate from the relevant Commune. He authorised an agent to  contact the Court on his behalf prior to his travel to Australia in April 2022. The two year period  ended in March 2024 and his agent collected his father’s death certificate on his behalf. The applicant explained that his father passed away on 10 October 2017 and his death certificate was registered on 20 April 2022.  He was unaware of his father’s death at the time of lodging the visa application. He was not able to obtain the document until after the two year period ended in March 2024. The applicant confirmed that he is his mother’s only child and she is still mourning the death of her husband. He requests the Tribunal consider making a determination on the remaining criteria and grant the visa if possible.

22. The Tribunal has considered the evidence of the death certificate for his biological father and the applicant’s declaration explaining how it was obtained.  It is satisfied, on the evidence now before it that the applicant is single, and has no near relatives other than his mother who is an Australian permanent relative and usually residing in Australia.

23. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is met.

24. If the applicant is a child who has not turned 18 and has been adopted by an Australian citizen, permanent resident or an eligible New Zealand Citizen, while overseas, reg 1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.

25. For the reasons set out above, the Tribunal is satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and at the time of decision for the purposes of cl 835.212 and cl 835.221.

26. The Tribunal acknowledges the applicant’s request for the Tribunal to determine all of the remaining criteria for the visa and make a decision to grant the visa, however, it does not have the power to do so. Section 349 of the Migration Act sets out the Tribunal’s powers on review, and does not include the power to grant a visa. Accordingly, the Tribunal sets aside and remits the matter for reconsideration in accordance with directions permitted by the regulations, which includes a direction that criteria are met.

27. On the findings above, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

28. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl 835.212 of Schedule 2 to the Regulations; and

    ·cl 835.221 of Schedule 2 to the Regulations.

    Meena Sripathy
    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).