Nguyen (Migration) - [2019] AATA 2721

Nguyen (Migration) [2019] AATA 2721 (16 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Quynh Huong Nguyen
CASE NUMBER:  1704108
DIBP REFERENCE(S):  BCC2014/1866949
MEMBER:Amanda Mendes Da Costa
DATE:16 May 2019
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.311 of Schedule 2 to the Regulations;
·cl.820.321 of Schedule 2 to the Regulations; and
·The application for the Partner (residence) (Class BS) visa be reconsidered in light of this decision.

Statement made on 16 May 2019 at 10:41am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – member of family unit – dependent of primary visa applicant – wholly or substantially reliant – casual employment with fast food chain – insufficient to provide for basic needs – psychological vulnerabilities – capacity to maintain gainful employment – reliance in fact – full-time student – no longer employed – financial support from step-father – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.05A; Schedule 2, cls 820.311, 820.321
CASES
Al Naqi [2007] FMCA 874
Huynh v MIMIA (2006) 152 FCR 576
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 Immigration on 20 February 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The primary visa applicant, Kim Hoa Nguyen lodged an application for a UK Partner (temporary) and a BS Partner (residence) visa on 31 July 2014 on the grounds of being in a spousal relationship with an Australian citizen, Mr Jason Tarascio who lodged a sponsorship form in support of the application.
The review applicant (the applicant) was included in the visa application as a secondary applicant and was also included in the sponsorship of Mr Tarascio. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.311 and cl.801.221 because the delegate was not satisfied that the applicant was dependent on her mother as defined by r.1.05(A)(1).
The applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Kim Hoa Nguyen, Mr Jason Tarascio and Ms Giang Huong Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented…

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) [2019] AATA 2721
Case: [2019] AATA 2721
Decision Date: 16 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801, where the applicant was included as a dependent of the primary visa applicant, her mother. The dispute before the Tribunal was whether the applicant qualified as a "member of the family unit" by being dependent on her mother at the time of the visa application and decision.

The Tribunal was required to determine if the applicant was wholly or substantially reliant on her mother for financial support to meet her basic needs for food, clothing, and shelter, and if this reliance was greater than her reliance on any other person or source. Alternatively, the Tribunal had to consider if the applicant was wholly or substantially reliant on her mother due to an incapacity for work, resulting in a total or partial loss of bodily or mental functions.

The Tribunal noted that the applicant had been a full-time student in Australia since 2010 and had lived with her mother since 2014. While the applicant had previously been employed casually, she had deferred her studies in November 2015 due to difficulties at university and was no longer employed. Evidence indicated she was receiving financial support from her step-father. Considering the applicant's psychological vulnerabilities and her current lack of employment and studies, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant met specific criteria for a Subclass 801 (Partner) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is dependent on her mother, Mrs Kim Hoa Nguyen. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). For the purposes of the visa application the relevant periods are the time of application and the time of decision. The applicant arrived in Australia in 2010 on a Student visa, to enable her to commence studies in Australia. Until then she had lived in Vietnam with her mother and brother after the divorce of her parents. The applicant’s father remains in Vietnam and has remarried. After arriving in Australia, the applicant initially lived with one of her maternal aunts and subsequently commenced living with her mother who arrived in Australia with the applicant’s younger brother in 2014. The applicant’s mother lodged an application for a UK Partner (temporary) and BS Partner (Residence) visa on 31 July 2014 on the grounds of being in a spousal relationship with an Australian citizen, Mr Jason Tarascio who lodged a sponsorship form in support of the application. The applicant was included in her mother’s visa application as a secondary applicant and was included in the sponsorship of Mr Tarascio.Applicant’s evidence The applicant adopted the contents of her Statutory Declaration dated 15th April 2019. She told the Tribunal that she had been living with her mother, brother and Mr Tarascio for the past five years. Her mother and Mr Tarascio are now married. The applicant told the Tribunal that she commenced her studies in Australia with an English course and between 2012 and 2013 she completed a Diploma of Business Studies at the Australian Technical and Management College. In 2013 the applicant commenced studies for a Bachelor of Commerce at the Federation University. In November 2015 the applicant deferred her studies. She told the Tribunal that the reason for deferral was due to her failure to make friends at university. This meant that she wasn’t chosen by other students to participate in group assignments and was forced to complete assignments on her own. After failing a number of subjects she decided to defer her studies.

Decision

Reasons for decision

Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.DECISION The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:·cl.820.311 of Schedule 2 to the Regulations; and ·cl.820.321 of Schedule 2 to the Regulations.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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