Lai (Migration) - [2023] AATA 1676

Lai (Migration) [2023] AATA 1676 (8 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Huoi Thi Lai
REPRESENTATIVE:
CASE NUMBER:  2008273
HOME AFFAIRS REFERENCE(S):          CLF2018/45227
MEMBER:Peter Emmerton
DATE:8 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 08 June 2023 at 11:33am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – sponsor was sponsored on a Remaining Relative visa – physical residency and intention – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 835.212, 835.213, 835.221; rr 1.03, 1.15, 1.20
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 by a delegate of the Minister for Home Affairs on 1 May 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 April 2018. 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 835.213 of Schedule 2 of the Regulations.
The delegate refused to grant the visa on the basis that cl 835.213 was not met because they were not satisfied that the applicant has demonstrated she meets clause 835.213 as her sponsor, Ms Mien Thi Nguyen was sponsored on a Subclass 115 (Remaining Relative) visa.
The applicant was scheduled to appear before the Tribunal on 7 June 2023 to give evidence and present arguments. They did not appear without notifying the Tribunal on the day of the hearing of their nonattendance at their scheduled hearing.
For clarity the chronology of the Tribunal’s engagement is set out below.
AAT Application by applicant  14 May 2020
Hearing Invitation sent  5 May 2023
Advice from Representative that no response received from applicant       12 May 2023
Advice from Representative/Recipient that applicant had appointed
Representative and they were no longer assisting  25 May 2023
AAT attempted telephone call to applicant, and call placed to
Representative that we needed authorisation from applicant
to change correspondence status.   25 May 2023
Response to phone call from Representative - contact of Review
applicant and phone number Received from Representative  26 May 2023
Phone call to Liem Chieu explaining change of representative

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 Lai (Migration)

Details

AGLC: Lai (Migration) [2023] AATA 1676
Case: [2023] AATA 1676
Decision Date: 8 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by an individual seeking review of a decision to refuse an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). The applicant claimed to be the remaining relative of Ms Mien Thi Nguyen, who was identified as their Australian relative. The AAT affirmed the decision under review.

The primary legal issues before the Tribunal were whether the applicant met the definition of a "remaining relative" of an "Australian relative" at the time of application and decision, and whether any limitations on sponsorships for such visas applied. Specifically, the Tribunal had to determine if the applicant's mother, Ms Nguyen, was an Australian relative, if she was usually resident in Australia, and if the applicant and their spouse had any "near relatives" other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal was satisfied that Ms Mien Thi Nguyen was the applicant's mother and an Australian citizen, thus meeting the definition of an Australian relative. The Tribunal also considered the definition of a "remaining relative" under regulation 1.15 of the Migration Regulations 1994, which requires the Australian relative to be usually resident in Australia and the applicant, along with their spouse or de facto partner, to have no "near relatives" except those who are usually resident in Australia and hold Australian citizenship, permanent residency, or eligible New Zealand citizenship. The Tribunal affirmed the decision not to grant the visa, implying that the applicant failed to satisfy one or more of these criteria, or that a sponsorship limitation under regulation 1.20K applied.

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 applicant is the remaining relative of Ms Mien Thi 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). The Tribunal has read and carefully considered the following evidence presented to the Department prior to the AAT hearing. Department refusal dated 1 May 2020 Department application summary Passport photos of review applicant, Birth Certificate of review applicant translated on 3 April 2018 Statement of Ms Mein Thi Nguyen, dated 20 April 2018, and Passport Citizenship Certificate of Ms Mien Thi Nguyen dated 7 April 2011 Certificate of Title, Liem Chau, 20 April 2018 Death Certificate, New York, Hoa Kiem Huynh dated 29 March 2018 Court document of child support dated 29 March 2018, Hoa Huynh against Huoi Lai Visa Application forms The Tribunal has read and carefully considered the following evidence presented to the Tribunal prior to the scheduled AAT hearing which did not occur due to non-appearance of the applicant.·Request for extension of hearing scheduled for 7 June 2023 received 3 June 2023·MR6 Form - Change of Contact dated 3 June 2023 In this case Ms Mien Thi Nguyen is the applicant’s mother, an Australian citizen and is therefore, an Australian relative for these purposes.Is the applicant a remaining relative of an Australian relative? 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. 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’. 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) The Tribunal has reviewed the relevant identification documents of both the visa applicant and sponsor including in both individual’s cases, Passport photographs and data pages. The Tribunal is satisfied that the Australian relative in this case is the mother of the applicant, reg 1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Peter EmmertonMemberATTACHMENT - Extracts from the Migration Regulations 19941.15 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).Regulation 1.20K - Limitation on sponsorships – remaining relative visasThe Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:(a) who is an Australian relative for the applicant; and(b) to whom the Minister has granted any of the following:(i) a Subclass 104 visa;(ii) a Subclass 115 (Remaining Relative) visa;(iii) a Subclass 806 visa;(iv) a Subclass 835 (Remaining Relative) visa.(2) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:(a) who is an Australian relative for the applicant; and(b) who has sponsored another applicant for any of the following:(i) a Subclass 104 visa;(ii) a Subclass 115 (Remaining Relative) visa;(iii) a Subclass 806 visa;(iv) a Subclass 835 (Remaining Relative) visa; and(c) the Minister granted the visa to the other applicant. (3) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and(b) the Australian relative for the applicant is a person to whom the Minister has granted any of the following:(i) a Subclass 104 visa;(ii) a Subclass 115 (Remaining Relative) visa;(iii) a Subclass 806 visa;(iv) a Subclass 835 (Remaining Relative) visa.(4) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and(b) the Australian relative for the applicant has sponsored another applicant for any of the following:(i) a Subclass 104 visa;(ii) a Subclass 115 (Remaining Relative) visa;(iii) a Subclass 806 visa;(iv) a Subclass 835 (Remaining Relative) visa; and(c) the Minister granted the visa to the other applicant.(5) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:(a) the applicant is sponsored for the visa by the spouse or de facto partner of an Australian relative for the applicant; and(b) the spouse or de facto partner has sponsored another applicant who is a relative of the Australian relative for the applicant for any of the following:(i) a Subclass 104 visa;(ii) a Subclass 115 (Remaining Relative) visa;(iii) a Subclass 806 visa;(iv) a Subclass 835 (Remaining Relative) visa; and(c) the Minister granted the visa to the other applicant.(6) In this regulation: Subclass 104 visa means a Subclass 104 (Preferential Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999. Subclass 806 visa means a Subclass 806 (Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.