Nguyen (Migration)

[2019] AATA 1924

Nguyen (Migration) [2019] AATA 1924 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Quang Binh Nguyen

VISA APPLICANT:  Mr Trung Hieu Pham

CASE NUMBER:  1606895

DIBP REFERENCE(S):  OSF2013/025919

MEMBER:Kira Raif

DATE:21 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 21 February 2019 at 11:21am

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) – Subclass 445 (Dependant Child) – applicant was no longer a child of the visa holding parent – applicant must be a dependent child – whether the parent continues to be a visa-holding parent – not a visa holding parent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 1 Item 1211(4), Schedule 2 Part 445, cls 445.111, 445.211(a), 445.221, 820.511, rr 1.03, 1.05A

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 6 April 2016 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in March 1995. The visa applicant applied for the visa on 26 February 2013. The delegate refused to grant the visa on the basis that the applicant was no longer a child of the visa holding parent. The applicant seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 7 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent.

4. The issue in the present case is whether the parent of the applicant continues to be a visa-holding parent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations.

6. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations. The primary criteria require that at the time of application, the visa applicant must be a ‘dependent child’ (as defined in r.1.03 and r.1.05A) of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen, who has not turned 25: cl.445.211(a). ‘Dependent child’ is defined in r.1.03 of the Regulations.

7. The other primary criterion to be satisfied at the time of application for this Subclass, is that the visa applicant is sponsored by the nominator or sponsor of the visa-holding parent: cl.445.211(b). At the time of decision, cl. 445.221 provides that the parent of the applicant must continue to be a visa-holding parent. Clause 445.111 relevantly defines a visa-holding parent as follows:

   For this Part, the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:

   (a)Subclass 309 (Spouse (Provisional));

   (aa)Subclass 309 (Partner (Provisional));

   (b)Subclass 310 (Interdependency (Provisional));

   (c)Subclass 445 (Dependent Child);

   (d)Subclass 820 (Spouse);

   (da)Subclass 820 (Partner);

   (e)Subclass 826 (Interdependency).

   Is the parent a visa holding parent?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant’s mother Ms Thi Ly Tran was granted the temporary Partner Subclass 820 visa on 12 October 2012. However, her application for the permanent visa was refused in March 2016.

9. The applicant argues that if his mother’s review application, which is presently before the Tribunal, is successful, her temporary visa may be reinstated. The Tribunal does not accept that this is so. Clause 820.511 relevantly provides that the Subclass 820 visa is in effect until the holder is notified that his or her application for a Subclass 801 (Partner) visa has been decided. In the present case, the applicant’s mother has been notified that her Subclass 801 visa has been decided and refused. At that time, the mother ceased to hold the Subclass 820 visa. That visa would not be reinstated irrespective of the outcome of review on the mother’s application. The applicant concedes that in his submission to the Tribunal of 25 June 2018.

10. The Tribunal finds that the applicant’s mother is no longer the holder of the Subclass 820 visa. She is not a visa holding parent for the purpose of cl. 445.221. The Tribunal is not satisfied the visa applicant meets cl. 445.221.

11. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

12. The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

    Kira Raif
    Senior Member