NGUYEN (Migration)

[2024] AATA 590

NGUYEN (Migration) [2024] AATA 590 (12 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI HOA NGUYEN

VISA APPLICANTS:  Mr HUU THANH TRAN
Miss Bich Thuy Tran

REPRESENTATIVE:  Mr DAVID NGUYEN

CASE NUMBER:  2319570

HOME AFFAIRS REFERENCE(S):          BCC2015/3337282

MEMBER:Namoi Dougall

DATE:12 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 309 visa:

·cl 309.321 of Schedule 2 to the Regulations

Statement made on 12 February 2024 at 2:29pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – secondary applicants’ dependency on family head – aged over 18 – full-time vocational study and financial support – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 306(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.12, Schedule 2, cl 309.321

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants together with the primary applicant their father, Mr Huu Tai Tran (the primary visa applicant) applied for the visas on 6 November 2015.

2. On 29 September 2016, a delegate refused to grant the applicants Subclass 309 visas. On 1 December 2017, the Tribunal (differently constituted), affirmed the delegate’s decision however, this decision was overturned by the Federal Circuit and Family Court of Australia on 17 March 2022. On 2 May 2023, the Tribunal (differently constituted) remitted the matter to the Department.

3. On 22 September 2023, the delegate refused to grant the visas.

4. The delegate made the decision on the basis that there was insufficient evidence was provided that the applicants were dependent on the family head being the primary visa applicant, as required by reg.1.12 (Member of the Family Unit) and reg.1.03 (Dependent Child) of the Migration Regulations 1994 (Cth) and, therefore, the applicants were unable to satisfy a criterion for the grant of the visa under the (the Regulations).

5. Cl.309.321 requires that an applicant continue to be a member of the family unit of a person who satisfied primary criteria. A member of the family unit is defined in r.1.12 and includes a dependent child of the family head and r.103 defines dependent child to include a person who has turned 18 and is dependent on the family head.

6. On 8 February 2024 the Tribunal received a submission on the dependency of the applicants on the primary visa applicant and supporting documents.

7. The first named applicant was born on [Date] and is currently 21 years old. It was submitted in relation to the first named applicant that he is currently attending full time vocational study as an apprentice motor mechanic. He stopped his vocational study to study English full time just prior to the previous Tribunal’s favourable decision as his father was advised that he needed English skills more than vocational skills, in preparing to move to Australia. However, since the decision the subject of this review, the first named applicant has returned to full time vocational training and is halfway through his course.

8. Provided to the Tribunal was a certificate from the director of the Thanh Do Garage Business dated 6 February 2024 stating that the first named applicant has been a student since 27 April 2021 and his course runs to 2025. His training program is full time. Also provided was a money transfer from the primary applicant to the first named applicant on 5 February 2024 for AUD100.

9. The second named applicant was born on [Date] and is 19 years old. It was submitted that the second named applicant is studying full time as a nail technician after completing the equivalent of the Australian HSC in 2023.

10. Provided to the Tribunal was a confirmation letter from the owner of the Khanh An Nail Salon dated 7 February 2024 stating that the second named applicant had been a student from 17 August 2023 and her course runs to 2025. Her training program is full time. Also provided was a money transfer from the primary applicant to the second named applicant on 5 February 2024 for AUD100.

11. It was further submitted that the applicants are undertaking courses that they were advised would be most appropriate for their resettlement in Australia. Further, the primary applicant has only been in Australia a few months and continues to totally support the applicants financially.

12. The Department had been provided with the applicant’s birth certificates and the primary visa applicant household register which included the applicants.

13. In light of the new evidence received, the Tribunal is satisfied that the applicants are the dependent children of the family head being the primary visa applicant who has satisfied primary criteria. Therefore, cl.309.321 is met and the matter should be remitted for reconsideration.

14. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    DECISION

15. The Tribunal remits the application for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 309 visa:

    ·cl 309.321 of Schedule 2 to the Regulations

    Namoi Dougall
    Member