Nguyen (Migration)

[2020] AATA 2351

Nguyen (Migration) [2020] AATA 2351 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tang Binh Nguyen

CASE NUMBER:  1913164

DIBP REFERENCE(S):  CLF2011/223387

MEMBER:Kira Raif

DATE:11 June 2020

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.835.221 of Schedule 2 to the Regulations.

Statement made on 11 June 2020 at 2:20pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – applicant must have no ‘near relatives’ – minor child not in applicant’s daily care and control was a ‘near relative’ at time of department’s decision – applicant’s relationship with partner improved – applicant has gained full custody and daily care of child – child now not a ‘near relative’ for purposes of regulations – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.15(c), Schedule 2, cll 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 9 May 2019 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 applied for the visa on 22 December 2011. 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 primary decision record indicates that the applicant was assessed as meeting the statutory criteria at the time of application but not at the time of decision, so the more appropriate provision here appears to be cl. 835.221. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. 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.

6. 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’.

7. 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.

8. 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: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

   Is the applicant a remaining relative of an Australian relative?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in March 2013 the applicant was assessed as meeting the visa criteria and was placed in a queue. However, in April 2019 the Department was advised that a child was born to the applicant in December 2016 and that child was not an Australian citizen or permanent resident. The delegate wrote to the applicant seeking further information. The applicant informed the delegate that he had a close relationship with his son Brian and that he saw Brian on average once a fortnight for up to five hours. The applicant stated that  he was willing and able to provide daily care for Brian but the child’s mother would not let him. As such, the delegate was not satisfied that the minor child was in the applicant’s daily care and control and found the child to be a near relative of the applicant.

10. In his submission to the Tribunal of 11 June 2020 the applicant states that his relationship with his partner has improved in November 2018 and since that  time his contact with his child had increased. The applicant states that from April 2020 he has been given full custody and daily care of the child and had filed an application for consent orders with the court, with the orders being given in June 2020. The applicant states that he has full control and daily care of the child. The applicant included with his submission the court orders granting him sole parental responsibility, as well as a number of other documents relating to the child.

11. The Tribunal has considerable concern about the timing of this court order. It appears that  the applicant sought parental responsibility of his child following the primary decision and obtained court orders for the benefit of his visa application. Nevertheless, the applicant’s motivations are not a matter for this Tribunal. The Tribunal has formed the view that the presence of the court order granting the applicant sole parental responsibility establishes the fact that the minor child is in the applicant’s daily care and control. As such, this child is not a ‘near relative’ for the purpose of r. 1.15(c).

12. There is no evidence that the applicant has other near relatives. The Tribunal finds that he meets cl. 835.221.

    Conclusion

13. 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 decision for the purposes of cl.835.221.

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

15. 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.835.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member