Nguyen (Migration) - [2024] AATA 368

Nguyen (Migration) [2024] AATA 368 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Anna Xuan Anh Nguyen
VISA APPLICANT:  Mr Viet Tuan Kiet Nguyen
CASE NUMBER:  2213307
HOME AFFAIRS REFERENCE(S):          BCC2021/1703634
MEMBER:Moira Brophy
DATE:22 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations; and
·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 22 February 2024 at 1:15pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s death certificate – permanently incapacity of father – emotional and physical abuse – Palliative Care Specialist evidence – inability to care for a child – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
CASES
Acosta v MIBP [2016] FCCA 1276
Nguyen v MIMA (1998) 158 ALR 639
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 18 July 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 17 August 2021. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.
The delegate refused to grant the visa because the visa applicant did not meet cl 117.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because at the time of application, the visa applicant did not meet the requirements of reg 1.14(b) in that the evidence did not establish the visa applicant could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.
The review applicant, who was also the sponsor for this application, appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Amy Nguyen, Mr Van Duc Ngo and Mr Viet Tuan Anh Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The visa applicant, Mr Viet Tuan Kiet Nguyen is currently living in Vietnam with the sponsor’s former sister-in-law. According to the visa applicant’s birth certificate, his parents are Vo Thi Cam Thi (mother) and Nguyen Viet Tuan (father). In the application the sponsor stated the visa applicant’s father was incapacitated and his mother was deceased. A death certificate…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2024] AATA 368
Case: [2024] AATA 368
Decision Date: 22 February 2024

CaseChat Overview and Summary

This matter concerned a review of a decision regarding an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The review applicant, Ms Anna Xuan Anh Nguyen, sought to sponsor the visa applicant, Mr Viet Tuan Kiet Nguyen, who was residing in Vietnam. The core of the dispute revolved around whether Mr Nguyen qualified as an "orphan relative" of Ms Nguyen, an Australian citizen.

The Tribunal was required to determine if the visa applicant met the criteria for an orphan relative of an Australian relative, specifically as defined by clause 117.211 of the Migration Regulations 1994. This involved assessing whether the applicant had not turned 18, did not have a spouse or de facto partner, and was a relative of the Australian sponsor. Crucially, the Tribunal also had to consider whether the applicant could not be cared for by either parent because each was dead, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the applicant's best interests.

The Tribunal considered evidence including a death certificate for the applicant's mother and medical reports concerning the father's permanent incapacity, which included allegations of emotional and physical abuse. The Tribunal found that the visa applicant met the criteria under clause 117.211 and clause 117.221 of Schedule 2 to the Regulations, and that he had not turned 18 at the time of application and continued to meet this criterion.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the visa applicant meets the specified criteria for the Subclass 117 (Orphan Relative) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Prior to hearing the review applicant provided the following:·Copy of the delegate’s decision record and notification, dated 18 July 2022;·Written submission made by the review applicant and dated 27 June 2022;·Medical report for Mr Nguyen Viet Tuan made by Dr Nguyen Xuan Tri and dated 10 June 2022;·Original document in Vietnamese and certified English translation of a Notarial certificate for Mr Nguyen Viet Tuan from the Officer Health Care and Protection Committee, dated 19 May 2021;·Statutory declaration made by the review applicant and dated 26 June 2022;·Medical report for Mr Tuan Viet Nguyen made by Dr The Than Ha Ngoc, Cardiologist, Geriatrician, Palliative Care Specialist, dated 9 June 2023;·Comprehensive Geriatric Assessment Form for Mr Tuan Viet Nguyen, completed by Dr The Than Ha Ngoc and dated 5 June 2023;·Email correspondence from the review applicant requesting priority processing, dated 14 November 2023;·Witness statement made by Amy Nguyen, undated;·Statutory declaration made by Viet Tuan Anh Nguyen and dated 13 January 2024; and·Statutory declaration made by Van Duc Ngo and dated 13 January 2024.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the orphan relative of an Australian relative.Is the visa applicant an orphan relative of an Australian relative? Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)) or is not an orphan relative only because the visa applicant has been adopted by an Australian relative (cl 117.211(b)). The visa 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 117.221. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. 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): reg 1.03. In the present case, the sponsor and review applicant, Ms Anna Xuan Anh Nguyen, is the relevant Australian relative. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The Tribunal is satisfied on the evidence before it that the visa applicant was born on 1 November 2004. The application was made on 17 August 2021. The Tribunal is satisfied the visa applicant had not turned 18 at the time of application. Accordingly, reg 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 – reg 1.14(a)(ii)

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:·cl 117.211 of Schedule 2 to the Regulations; and·cl 117.221 of Schedule 2 to the Regulations.Moira BrophyMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The visa applicant, Mr Viet Tuan Kiet Nguyen is currently living in Vietnam with the sponsor’s former sister-in-law. According to the visa applicant’s birth certificate, his parents are Vo Thi Cam Thi (mother) and Nguyen Viet Tuan (father). In the application the sponsor stated the visa applicant’s father was incapacitated and his mother was deceased. A death certificate for the visa applicant’s mother Vo Thi Cam Thi was provided to the Department. The date of death was recorded as 9 July 2012. Prior to hearing the review applicant provided the following:·Copy of the delegate’s decision record and notification, dated 18 July 2022;·Written submission made by the review applicant and dated 27 June 2022;·Medical report for Mr Nguyen Viet Tuan made by Dr Nguyen Xuan Tri and dated 10 June 2022;·Original document in Vietnamese and certified English translation of a Notarial certificate for Mr Nguyen Viet Tuan from the Officer Health Care and Protection Committee, dated 19 May 2021;·Statutory declaration made by the review applicant and dated 26 June 2022;·Medical report for Mr Tuan Viet Nguyen made by Dr The Than Ha Ngoc, Cardiologist, Geriatrician, Palliative Care Specialist, dated 9 June 2023;·Comprehensive Geriatric Assessment Form for Mr Tuan Viet Nguyen, completed by Dr The Than Ha Ngoc and dated 5 June 2023;·Email correspondence from the review applicant requesting priority processing, dated 14 November 2023;·Witness statement made by Amy Nguyen, undated;·Statutory declaration made by Viet Tuan Anh Nguyen and dated 13 January 2024; and·Statutory declaration made by Van Duc Ngo and dated 13 January 2024.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the orphan relative of an Australian relative.Is the visa applicant an orphan relative of an Australian relative? Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)) or is not an orphan relative only because the visa applicant has been adopted by an Australian relative (cl 117.211(b)). The visa 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 117.221. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. 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): reg 1.03. In the present case, the sponsor and review applicant, Ms Anna Xuan Anh Nguyen, is the relevant Australian relative.