Nguyen (Migration)

[2021] AATA 4648

Nguyen (Migration) [2021] AATA 4648 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ba Thang Nguyen

VISA APPLICANT:  Mrs Thi Thanh Nga Nguyen

CASE NUMBER:  2012566

HOME AFFAIRS REFERENCE(S):          BCC2017/2710934

MEMBER:Mary Sheargold

DATE:2 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

·Public Interest Criterion 4021 for the purposes of cl 489.313(1) of Schedule 2 to the Regulations.

Statement made on 02 December 2021 at 8:17am

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – Federal Circuit and Family Court remittal – member of family unit – holder of valid passport – copy of passport provided to tribunal – primary applicant’s application also remitted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 489.211, 489.313(1), Schedule 4, criteria 4020(1), 4021

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 29 May 2019 to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 July 2017. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 489.313(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she was not the member of the family unit of a person who held a Subclass 489 visa.

3. This application’s fate turned on the delegate’s finding that the primary review applicant did not satisfy Public Interest Criterion 4020(1) for the purposes of cl.489.211 of Schedule 2 to the Regulations because he provided information that was false or misleading in a material particular, and the material particular was whether the visa applicant in this application and the other secondary applicant named in the primary application were members of his family unit.

4. This application was first heard by the Tribunal on 23 January 2020 and the delegate’s decision was affirmed by the Tribunal (differently constituted) in an oral decision given on the same day the application was heard.  The applicant appealed the Tribunal’s decision to the Federal Circuit and Family Court of Australia.  By order of Judge Riethmuller, dated 27 July 2020, the Tribunal’s original decision in this application and those of the primary visa applicant and third named visa applicant linked to this application were quashed and the Tribunal was directed to determine the applications according to law.

5. The review applicant and visa applicant both appeared before the Tribunal on 15 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  Relevantly, the Tribunal notes that on 1 December 2021, it remitted the primary visa applicant’s application for review (Tribunal case number 2012548) to the Department for reconsideration, with the direction that he does meet the requirements in Public Interest Criterion 4020(1). 

8. Based on all the evidence available to it at the time of its decisions, the Tribunal is satisfied that the visa applicant in this application along with the other secondary visa applicant are both members of the family unit (as defined in r.1.12 of the Regulations) of the primary visa applicant.  The Tribunal was satisfied on review that the primary visa applicant had not provided information to the Department that was false or misleading in a material particular relating to the make up of his family unit.  The Tribunal was satisfied that the visa applicant in this application is the primary visa applicant’s spouse (as defined in the Act and the Regulations).

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets Public Interest Criterion 4021 (PIC 4021) as required by cl 489.313(1) for the grant of the visa. Broadly speaking, this requires that the applicant holds a valid passport that is issued to the applicant by an official source, is in the form issued by the official source, and is not in a class of passports specified by the Minister in an instrument in writing, in this case, IMMI 18/001.

10. The Tribunal has considered the copies of the visa applicant’s passport provided to the Department with this application and finds that it was issued to the visa applicant by the Vietnamese government and is in the form issued by the official source. A passport issued by the Vietnamese government is not a travel document specified by the Minister in Schedule 2 to IMMI 18/001. Therefore PIC 4021 is met.

11. On the basis of the above, the Tribunal finds that the visa applicant satisfies PIC 4021 for the purposes of cl 489.313(1).

    DECISION

12. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

    ·Public Interest Criterion 4021 for the purposes of cl 489.313(1) of Schedule 2 to the Regulations

    Mary Sheargold
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4021Either:

    (a) the applicant holds a valid passport that:

    (i) was issued to the applicant by an official source; and

    (ii) is in the form issued by the official source; and

    (iii) is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

    (b) it would be unreasonable to require the applicant to hold a passport.