Luong (Migration)

[2018] AATA 1491

Luong (Migration) [2018] AATA 1491 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hoang Phuong Khanh Luong

CASE NUMBER:  1607071

DIBP REFERENCE(S):  CLF2015/71503

MEMBER:Kira Raif

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 30 April 2018 at 6:29pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – Whether the applicant is the remaining relative of an Australian relative – Mother and sister are Australian permanent residents – Applicant’s biological father a near relative  – Father’s whereabouts unknown – No contact or relationship between the visa applicant and the father – Decision affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15 Schedule 2 cls 835.212, 835.221

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 Immigration on 12 May 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam born in January 1983. She has previously applied for the Remaining Relative visa offshore and was refused that application by the Department but the matter was remitted by the Tribunal (differently constituted). That application remains outstanding.

3. The applicant applied for the present visa on 18 November 2015. 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 was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

4. The applicant’s representative provided a written submission to the Tribunal on the afternoon of 27 April 2018, less than one day prior to the hearing. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions.

5. The applicant appeared before the Tribunal on 30 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. At the time the application was made, 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 (the Regulations).

7. 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 r.1.15 of the Regulations, which is set out in the attachment to this decision.

8. 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’.

9. 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.

   Is the applicant a remaining relative of an Australian relative?

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that her mother and sister are Australian permanent residents residing in Australia. The applicant has not listed her father’s details on the form but provided evidence of her parents’ divorce. The applicant claims that her father’s whereabouts are unknown and she cannot provide further information relating to her father.

11. The applicant told the Tribunal that when she was about 20 years old, she asked her mother’s friends to locate her father but they could not find him. She said they have not done anything else to locate the father. The applicant’s mother told the Tribunal that in the 80’s or early 90’s her brother went to the ex-husband’s place of residence and the ex-husband’s father told him that the ex-husband no longer lived there and they had no contact with him for a number of years. Later on the grandfather sold the property. The applicant’s mother said she raised the children on her own, which was very hard, and the father never enquired about the children and did not help. The Tribunal accepts all that evidence, however, the Tribunal is not satisfied that adequate steps have been taken to locate the father.

12. The Tribunal is prepared to accept that some inquiries were made to locate the father but as the Tribunal noted above, these do not appear to be adequate because they were limited to a particular area where the father’s family lived. There is no guarantee, however, that the father would have remained in the same area. Since the separation over thirty years ago, the father could have moved anywhere, he could be living either in a different area or in a different country altogether where the search would not have located him.

13. The applicant’s representative submits that the family could go back to the father’s place of residence and obtain statements from the local families. The Tribunal has considered the option but does not consider it helpful because the father could have moved to any area and his absence from one local area in Vietnam would not be sufficient to give rise to the presumption of death.

14. The applicant refers to the earlier findings of the Tribunal, which applied the presumption of death. The Tribunal has considered the applicant’s evidence but does not agree that the presumption of death applies in this case. The applicant’s evidence is that her parents had divorced many years ago. It is not uncommon for parties to have little or no contact with each other following the divorce and, as a result of the divorce, it is not uncommon for parents to have little or no contact with children. That is, the mere fact that the father has not made any contact with the applicant and her mother, or with his own family, cannot indicate his death. The Tribunal acknowledges that the previous Tribunal applied the presumption of death in relation to the father and found that the applicant had no near relatives. That finding is not binding on the present Tribunal and for the reasons set out above, the Tribunal is not satisfied that the presumption of death applies. Essentially, there may be good reasons why the father has not been in touch with the family and could not be located through the applicant’s efforts, other than his death.

15. It is also entirely possible, in the Tribunal’s view, that the applicant’s father has re-married or has other children, who would be the applicant’s half-siblings. The Tribunal must be positively satisfied that the applicant has no near relatives and on the evidence before it, the Tribunal is not satisfied that this is the case.

16. Overall, the Tribunal accepts the applicant’s evidence that she has had no contact with her father and that he is estranged. The Tribunal accepts there is no relationship between them. The Tribunal accepts that the applicant made an effort to locate her father but was unable to do so. However, the Tribunal does not accept that the father has passed away and there is no evidence of his residence in Australia. The Tribunal finds that the applicant’s father is a near relative, despite any lack of contact and relationship between them.

17. The Tribunal finds that the visa applicant has a near relative, who is her biological father, irrespective of the nature of her relationship or contact with that relative. The Tribunal is not satisfied the applicant’s father is an Australian citizen or permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied he resides in Australia. The applicant does not meet r. 1.15(1)(c)(ii). The applicant was not a remaining relative of an Australian relative at the time of the application. She does not meet cl. 835.212. 

18. There is no evidence that the visa applicant is a carer of an Australian relative and there is no relevant Carer certificate. The applicant is not old enough to be granted the Aged Dependent Relative visa. The Tribunal is not satisfied the applicant meets the requirements for the grant of the Carer visa or an Aged Dependent Relative visa.

19. The applicant’s mother explained the family’s difficult circumstances. She said the applicant will have nowhere to live in Vietnam and nobody to look after her. The Tribunal acknowledges that evidence but having found that the applicant does not meet the key criteria for visa grant, the Tribunal has no option but to affirm the decision under review.

    Conclusion

20. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. .  

    Decision

21. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member