Nguyen (Migration)

[2021] AATA 819

Nguyen (Migration) [2021] AATA 819 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Anh Nguyet Nguyen

CASE NUMBER:  1821756

DIBP REFERENCE(S):  CLF2017/108255

MEMBER:Steven Griffiths

DATE:5 February 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 837 (Orphan Relative) visa:

·cl.837.213 of Schedule 2 to the Regulations; and

·cl.837.221 of Schedule 2 to the Regulations.

Statement made on 5 February 2021 at 8.23pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan Relative) – parental care – parents’ long-term health issues severely impacting ability to provide care – brother’s gambling and drug debts resulting in threats to him and parents – best interests of applicant – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.14(b), Schedule 2, cls 837.213(a), 837.221

CASE

Nguyen v MIMA (1998) 158 ALR 639

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 18 July 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms. This Anh Nguyet Nguyen, applied for the visa on 13 November 2017 on the basis of her relationship with the sponsor, Mrs. Phuong Thi Nguyen. At that time, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of the Subclass 837 visa.

3. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.837.213 and the requirement that the applicant is the orphan relative of an Australian relative of the applicant.

4. The delegate refused to grant the visa because the applicant did not meet cl.837.213(a) and Regulation 1.14 of Schedule 2 to the Regulations because the it was not proven that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of whereabout unknown.

5. The parties were assisted by their registered migration agent, Mr. Matthew Thompson of M.P. Thompson & Associates.

6. The applicant, who is 14 years old, and sponsor appeared before the Tribunal on 3 February 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the biological parents of the applicant, the husband of the sponsor, the two adult daughters of the sponsor and a friend of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The registered migration agent took part in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE  

9. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants and the oral evidence from the hearing.

   ISSUE

10. The issue in the present case is whether the applicant is an orphan relative as specific by Regulation 1.14 and if her biological parents are permanently incapacitated and unable to care for her.  

    BACKGOUND OF THE EVIDENCE

11. Applicant Ms. Nguyen was born in  Vietnam in 2006. Her parents, born 1973 & 1978, live in Vietnam with her older brother. She arrived in Australia on 26/5/17, on a Visitor 600 Visa granted 7/3/17 and to cease 23/8/17, with the 600 Visa extended to 15/11/17. She has been a on WA-010 Bridging Visa from 13/11/17.

12. Sponsor Mrs. Nguyen was born in Vietnam in 1968.  She was previously married in Vietnam, with 2 daughters. She married her second husband, and Australian citizen in Australia in 2010, was granted a Partner Visa and she and her daughters are now Australian citizens.

    BACKGROUND OF THE EVIDENCE

13. Since the Department made a decision the sponsor has provided further information to the Tribunal including:-

    Applicant school awards and reports

    Submission from applicant, 26/1/21

    Photographs of the applicant Vietnam living conditions

    Migration Agent submission, 1/2/21

    Applicant submission, 31/1/21

    Sponsor and husband submission, 31/1/21

    Ms. Tu Tran, daughter of sponsor, submission, 31/1/21

    Ms. Ngoc Tran, daughter of sponsor, submission, 31/1/21

    Parents of applicant, submission, not dated

    10 photos of the home in Australia of the sponsor

    8 photos of the applicant in Australia with family and a school

    Is the applicant an orphan relative of an Australian relative?

14. Clause 837.213 requires that at the time of visa application the applicant is an orphan relative of an Australian relative (cl.837.213(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.837.213(b)). The applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl.837.221.

15. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.837.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03. In the present case, the sponsor is the relevant Australian relative.

16. For the reasons below, the applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.837.213(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

17. Regulation 1.14(a)(i) requires that the applicant has not turned 18.

18. The Tribunal accepts the documented and oral evidence of the parties that the date of birth of the applicant is 5/10/06 and that she was 11 years, 1 month and 1 week old at the time of application and is 14 years and 3 months old at the time of this decision.

19. Accordingly r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

    Spouse or de facto partner – r.1.14(a)(ii)

20. Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner.

21. The Tribunal accepts that with the applicant being 14 years old now, the applicant did not and does not have a spouse or de facto partner at the time of application of this decision.

22. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

23. Regulation 1.14(a)(iii) requires the applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

24. The Tribunal accepts the documented and oral evidence of the parties at the hearing that the father of the applicant is the sister of the sponsor, and determines the applicant is the niece of the sponsor.

25. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is an Australian citizen by grant.

26. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

27. Regulation 1.14(b) requires that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

28. The Tribunal accepts the documented and oral evidence of the parties that the parents of the applicant are alive, their whereabouts known and that the applicant and sponsor have been and continue to be in regular contact with them.

29. The Tribunal accepts the documented and oral evidence of the parties that the applicant came to Australia in May 2017, with the support of her parents and the sponsor, being the Aunt of the applicant, for an intended holiday only of up to 3 months.

30. The Tribunal accepts the documented and oral advise of the parties that the father of the applicant suffers from several long term health issues, for which ongoing medical support is required, and that these illnesses, and their physical and mental health impact, have severely impacted on his ability to care for his daughter.

31. The Tribunal accepts the documented and oral evidence of the parties that the father of the applicant has not been able to work since mid-2018 and that with his illnesses, and the impact on his capacity to work in physical roles which is the only type of job available to him, that he is not currently and will never be employable again.

32. The Tribunal accepts the documented and oral advise of the parties that the mother of the applicant suffers from several long term health issues, for which ongoing medical support is required, and that these illnesses, and their physical and mental health impact, have severely impacted on her ability to care for her daughter.

33. The Tribunal accepts the documented and oral evidence of the parties that the mother of the applicant until mid-2019 had been working reduced hours and from mid-2019 has not been working at all, and that with her illnesses, and the impact on her capacity to work in physical roles which is the only type of job available to her, that she is not currently and will never be employable again.

34. The Tribunal accepts the documented and oral evidence of the parties that the older brother of the applicant lives with his parents, and through gambling and drug issues over a long term has created a debt to others that often results in he and the parents of the applicant being physically and mentally attacked to enforce the repayment of the debt.

35. The Tribunal accepts the documented and oral evidence of the parties that the debt issues created by the brother of the applicant over many years created a situation while the applicant was living with her parents in which she was threatened, and that a return by the applicant to being required to live with her parents would only renew this intimidation and threat and now that she is a teenager the physical risk to her is greater that it was when she left Vietnam in 2017.

36. The Tribunal accepts the documented and oral evidence of the parties that the older brother of the applicant has been working in part-time roles in recent periods, and has improved his life decisions, but realistically has no way of paying off the debts he owes and he, and his family, will continue to be threatened by criminal elements seeking payment of the debts.

37. The Tribunal accepts the documented and oral evidence of the parties that the region in Vietnam the parents of the applicant live has no support mechanism for the needs of the community and the family of the applicant is living in poverty.

38. The Tribunal accepts the documented and oral evidence of the parties that the parents of the applicant, and the grandparents of the applicant, have lived in poverty and financial pressures and the ability to house, feed and provide necessary health care for families have always been a concern.

39. The Tribunal accepts the documented and oral evidence of the parties and hearing witnesses that the sponsor and her children, while living in Vietnam before coming to Australia in 2010, lived in poverty.

40. The Tribunal accepts the documented, photographic and oral evidence of the parties and hearing witnesses that the home the parents of the applicant live in, which also houses the older brother of the applicant and his wife and 3 month old child, is a two room annexe to other properties that has been at risk of collapse for years, is owned by others who make it available to them but will spend no money on repairing or upgrading it, and when it collapses the 5 people living there will be homeless.

41. The Tribunal accepts the documented and oral evidence of the parties that a return to Vietnam by the applicant to live will require her to share a small bed with her parents and a likely return to the equivalent of Year 6 school level, if indeed the family receives support from others to pay the school fees.

42. The Tribunal accepts the documented and oral evidence of the parties that the parents of the applicant have not, and will never have, the capacity to provide any financial support for their daughter in Australia.

43. The Tribunal accepts the documented and oral evidence of the parties that the husband of the sponsor, who is the sole income earner of the couple, has with the sponsor provided financial support to the parents of the applicant for 10 years, with this money used to ensure that the most basic of needs is met by the family members in Vietnam.

44. The Tribunal accepts the documented and oral evidence of the parties that the parents of the applicant love her and want the best for her, but with their precarious financial and importantly health conditions, it is impossible for them to provide any type of options for their daughter that gives her a chance of a future at best as a young mother and factory worker, and at worst a person who could be kidnapped by gangs operating in the area and taken to another area and forced to work as a prostitute.

45. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

46. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

47. The Tribunal accepts the documented and oral evidence of the applicant that remaining in Australia, continuing to live with her Aunt, Uncle and Cousin, putting all her effort in to her schooling and to pursue a career in medicine, all while keeping in contact with her parents, is her greatest wish and that remaining in Australia is in her best interest.

48. The Tribunal accepts the documented and oral evidence of the Aunt (sponsor), Uncle and 2 adult female cousins of the applicant that she has been living with the family for 4 years and it considered to be a child / sister respectively and the family, as a unit, provide all the support, be it physically, emotionally or financially, that the applicant needs and determines this to be the position of the applicant at the time of the application and this decision.

49. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

50. Given the findings above, cl.837.213 is met.

51. The Tribunal finds that the applicant continues to satisfy the criterion in cl.837.213. It follows that cl.837.221 is met.

52. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

53. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 837 (Orphan Relative) visa:

    ·cl.837.213 of Schedule 2 to the Regulations; and

    ·cl.837.221 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14    Orphan relative

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.