Nguyen (Migration)

[2018] AATA 5731

Nguyen (Migration) [2018] AATA 5731 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Ve Nguyen

CASE NUMBER:  1725115

DIBP REFERENCE(S):  CLF2014/81293

MEMBER:Adrienne Millbank

DATE:18 December 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 18 December 2018 at 1:26pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit Court remittal – relative of an Australian resident – assistance provided by an Australian citizen relative – assistance from welfare, hospital, nursing or community services – physical residency and intention – usually resident in the home of the relative – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1 Item 1123B, Schedule 2 cls 836.212, 836.213, 836.221; rr 1.03, 1.12, 1.15

CASES

Hafza v Director General of Social Security (1985) 6 FCR 444
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116 

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 17 October 2014 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a Vietnamese citizen born in Vietnam in 1962, who has been caring for her mother, Mrs Hoa, in Vietnam and Australia, since September 2013. Mrs Hoa is an Australian citizen born in Vietnam in 1927. She first arrived in Australia in 1989, sponsored by her oldest daughter, the sponsor, who was born in Vietnam in 1949 and arrived in Australia in 1981 as a refugee from a camp in Malaysia.

3. As noted, the sponsor, Mrs Huyen, and the visa applicant (the applicant), Mrs Ve, are sisters. Mrs Hoa, their mother, has been assessed as having an impairment rating of 70 and requires ongoing care. The applicant first arrived in Australia on 7 March 2014 on a three-month Visitor visa, and was sponsored by her sister to remain in Australia to care for their mother, Mrs Hoa.

4. The applicant applied for the visa on 28 May 2014. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.212 and cl.836.221.

5. The Delegate refused to grant the visa because the Delegate was not satisfied that the person in need of care, the applicant’s mother, Mrs Hoa, was usually resident in the household of the sponsor. The applicant was assessed as not meeting Regulation 1.12(e)(ii) and therefore Regulation 1.15AA(1)(b)(i), as required by cl.836.212 and cl.836.221. The Delegate specifically refused on the ground that the applicant did not meet cl.836.221. The Delegate noted that for the purposes of this application the resident referred to in the legislation is the sponsor.

6. The Delegate noted in the decision record that in her application form the applicant stated that the relative with the medical condition and requiring her care was her mother, Mrs Hoa, who lived at a Forest Lake, Qld address. The applicant listed her own residential address as the Forest Lake address. She listed the address of the sponsor, her sister, as an address in Ellen Grove, a nearby suburb. In the Carer Visa Assessment Certificate dated 16 May 2014, the residential address of the person in need of care, Mrs Hoa Nguyen, was listed as the Forest Lake address, and the doctor noted that she was was cared for by (the applicant), her daughter, who lived with her. On her sponsorship form the sponsor listed her address as the Ellen Grove address, and the address of the applicant as the Forest Lake address. The Delegate concluded that the sponsor was not a resident, at the time of application and the Delegate’s decision, at the Forest Lake house where her mother and sister lived.

7. The applicant applied for review of the Delegate’s decision to the Tribunal, which affirmed the decision on 23 February 2016. The Tribunal accepted sworn testimony provided in statutory declarations and at hearing, and information in a submission provided by T Lawyers, the parties’ representative,  that the sponsor was only ‘temporarily’ residing in Ellen Grove, and her principal place of residence was the house in Forest Lake. On the basis of its acceptance of this claim made by the parties at the time, the Tribunal found that the applicant met r.1.15AA(1)(b)(i). The Tribunal found that the sponsor and Mrs Hoa, who has the medical condition, despite having different residential addresses at the time of application and when the Delegate made the decision, were ‘usually resident’ in the same household. The Tribunal found that the visa applicant was the carer of a member of the family unit of the resident who has a medical condition.

8. The Tribunal, however, found that the applicant did not meet r.1.15AA(1)(e). The Tribunal was not satisfied, on the evidence and argument provided, that assistance could not reasonably be provided to Mrs Hoa by a relevant relative, or obtained from welfare, hospital, nursing or community services, in Australia. On this basis, the Tribunal found that the applicant did not meet cl.836.221.

9. The applicant appealed to the Federal Circuit Court, where the decision was set aside, by Justice Howard, in a decision made on 28 February 2017. Justice Howard concluded that the decision reached by the Tribunal was legally unreasonable: that its conclusion that the relatives could take care of Ms Hoa ‘involved illogical reasoning’; and that the Tribunal fell into jurisdictional error by ‘not providing material findings of fact or a proper path of reasoning’ on the issue of the ‘obtainability’ (sic) of institutional care for Ms Hoa given her preference for only Vietnamese food and ‘specific requirements of 24 hour 7 day a week intense personal care to be provided by a Vietnamese speaker’.

10. The Minister appealed to the Federal Court, which upheld the decision of the Federal Circuit Court to set aside the Tribunal’s decision, and remitted the review application to the Tribunal. Justices Flick, Barker and Rangiah JJ, in a judgment made on 20 September 2017, concluded the Tribunal had committed jurisdictional error in construing and applying r.1.15AA(1)(e), and ‘the Federal Circuit Court was correct in reaching the conclusion that the Tribunal had so erred’.

11. A hearing scheduled for 6 September 2018 was postponed at the request of the parties. One of the applicant’s representatives, Ms Tieu of T Lawyers, was having a baby and unable to attend. A hearing scheduled for 9 October 2018 was postponed at the request of the parties because another representative from T Lawyers, Mr Boccabella, had a longstanding overseas commitment.  

12. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s sister; and the sponsor’s daughter, the niece of the applicant. The person seeking a carer, Mrs Hoa Nguyen, the mother of the applicant and sponsor, and grandmother of the sponsor’s daughter and applicant’s niece, attended the hearing but did not give evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

13. The applicant was represented in relation to the review by two registered migration agents, as noted, Ms Pamela Tieu and Mr Lorenzo Boccabella, from T Lawyers, who both attended the hearing.

14. Early in the hearing Ms Tieu complained about the interpreting, on the grounds that not all information spoken by the applicant and sponsor was being conveyed to the Tribunal. The Tribunal advised that if the applicant wished, the hearing could be adjourned while another interpreter, probably from the Telephone Interpreter Service and over the phone, was obtained. The Tribunal advised that that it could not guarantee that this interpreter would be as highly credentialed as the interpreter attending in person. Ms Tieu advised that the problem was that some of what the parties were saying was not being interpreted. The Tribunal noted that the interpreter was passing on the information that the Tribunal was seeking, that directly answered the questions. Mr Boccabella advised the parties that they were entitled to put their case fully, but that they should speak in short sentences with breaks for the interpreter. Tribunal confirmed to the parties that they would be given all the time they needed to say everything they wanted to.

15. The Tribunal suggested that the hearing proceed, with the Tribunal and whomever was responding to questions or making statements taking particular care to speak in short segments of speech and pause often, to allow the interpreter to interpret everything. The Tribunal advised that if and when concerns arose, the Tribunal would repeat the question and allow the respondent to clarify her response.  The parties agreed to proceed on this basis. The Tribunal took care to ask questions in simple, direct language, and on key issues such as the parties’ living arrangements, confirmed responses with the parties. On several occasions the Tribunal re-worded and repeated questions, to ensure they were understood.  

16. The Tribunal advised the applicant that she could seek an adjournment and consult with her representatives at any time. There was one adjournment during the hearing, which was not at the request of the parties. Mr Boccabella requested and was granted time to provide a further submission after the hearing. This was received by the Tribunal on 11 December 2018.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Clause 836.212, a primary criterion to be satisfied at the time of application, requires that the applicant claims to be the carer of an Australian relative. As noted, Regulation 1.15AA(1)(b)(i) requires that the Australian citizen relative (being the resident or a member of the family unit of the resident) has a medical condition; Regulation 1.12(4)(d)(ii) defines as a member of the family unit a person who is usually resident in the family head’s household; and for the purposes of this application the resident referred to in the legislation is the sponsor.

19. There are two issues in the present case. Firstly, whether the sponsor was living in the household of her mother, the person in need of care, at the time of application and therefore the applicant meets the carer definition in r.15AA(1)(b)(i). If so, the second issue arises of whether assistance cannot be reasonably provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia (r.1.15AA(1)(e)).

20. The Tribunal noted at the outset of the hearing that a great deal of evidence, argument and judicial analysis had gone to addressing the issue of whether assistance could be reasonably provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia (r.1.15AA(1)(e)). The Tribunal advised that it would be taking a fresh look at the application for review, including the residency issue.

21. Regarding this issue, the Tribunal has had regard to relevant case law, and notes that dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17].

22. The Tribunal further notes that the Court has acknowledged that a person may simultaneously be resident in more than one place. However, once a person has established a home in a particular place, even involuntarily, a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place, together with an intention to return and an attitude that the place remains home: Hafza v Director General of Social Security (1985) 6 FCR 444 at [449]-[450].

23. The Tribunal accepts that since November 2014, after the Delegate’s decision in October 2014 to refuse the applicant a carer visa because the sponsor was not living in the house of her mother, Mrs Hoa, the sponsor has been living in the house of her mother, Mrs Hoa. For the reasons set out below, the Tribunal finds that the sponsor was not usually resident in the house of her mother at the time of application, in May 2014.

24. As noted, on her application form the applicant stated that her sister did not live with her or her mother at their Forest Lake, Queensland address. She declared that the relative with the medical condition and requiring her care, her mother, Mrs Hoa, lived at the Forest Lake address. She listed her own residential address as the Forest Lake address. She listed the address of the sponsor, her sister, as an address in Ellen Grove, a nearby suburb.

25. Further, in a Carer Visa Assessment Certificate dated 16 May 2014, the residential address of the person in need of care, Mrs Hoa, is listed as the Forest Lake address, and the doctor noted that she was cared for by (the applicant), her daughter, who lived with her. On her sponsorship form, the sponsor listed her residential address as the Ellen Grove address, and the residential address of the applicant as the Forest Lake address. At the time of application, the parties did not claim that the sponsor usually resided in the house at Forest Lake, where Mrs Hoa lived.

26. A written submission provided by T Lawyers, signed on 6 December 2015, and statutory declarations signed by the parties and supporters (Mrs Hoa, the sponsor, the sponsor’s friend with whom she lived in Ellen Grove; the applicant, and Mrs Hoa’s granddaughter), most signed on the same day, 30 November 2015, were provided for the first Tribunal review. These documents contain the following claims, which revolve around a story about the sponsor’s marital troubles. They support the contentions: that the Forest Lake house has been the sponsor’s principal place of residence since 2004, apart from a two-year break from mid-2010 to March 2012, when she lived in Sydney; that the sponsor was ‘usually resident’ in the Forest Lake house in 2014, despite her temporary relocation in another suburb; and that even while living in another suburb, she remained the household head, financially and emotionally, of the household at Forest Lake.

    • The sponsor and her then husband came to Brisbane from Sydney to open a restaurant in 2004, and jointly leased a house in Forest Lake, where they lived with their daughter Margaret and Margaret’s children.
    • Mrs Hoa was living with another daughter in Sydney but came to Brisbane in 2005 to live with the sponsor in Forest Lakes because the Sydney daughter had mental health issues and was unable to care for her.
    • When the restaurant business failed in 2010, the sponsor returned to live and work in Sydney. During her two years there she visited the Forest Lake house, in Brisbane, often.
    • When the sponsor returned from Sydney in 2012 and moved back into the Forest Lake house she and her husband went through a period of marital discord, arising from the failure of their restaurant. Her husband agreed to move out of the house, but didn’t get around to it.
    • Because the sponsor didn’t want to force her husband to leave after over 30 years of marriage, but couldn’t stand living in the same house with him, she moved out, around December 2013, into a house that her friend was renting in Ellen Grove. This move was intended to be temporary, but her husband proved recalcitrant and remained living in the Forest Lake house, so she was not able to return.
    • The sponsor’s friend whom she moved in with did not charge the sponsor any rent or board money, because she understood the sponsor was paying rent at Forest Lake for herself and her mother, and supporting the household at Forest Lake by purchasing items such as vegetables, meat, fish, and toilet paper. The sponsor’s husband, while living in the house, contributed at most only a rental contribution of $82 a week.
    • After the applicant moved into her friend’s house in Ellen Grove, she returned to the Forest Lakes house every weekend, staying from Friday evening to Monday morning.
    • When the visa application was refused, the sponsor’s husband, shamed by the result of his recalcitrance, left the Forest Lakes house to live in Redbank Plains, enabling the sponsor to return, in November 2014, to live in the Forest Lake house with her mother and sister.
    • The sponsor supported Mrs Hoa financially. Although Mrs Hoa had an age pension from Centrelink, it was insufficient because Mrs Hoa spent her money travelling to Vietnam, purchasing traditional and Western medicines, paying for a physiotherapist and other daily necessities including incontinence nappies.
    • The sponsor was unable to care for her mother because she had work commitments and failing health caused by her advancing years and bad back.

27. In summary, the submission and statutory declarations provided to the first Tribunal review claimed that the sponsor was the ‘family head’ of the Forest Lake household, providing financial and emotional support to her mother, sister, daughter and grandchildren who lived there, and moving out herself only temporarily because of marital troubles.

28. As noted, submissions and declarations and other evidence provided for the current review focussed on the issue of whether care and assistance could not reasonably be provided to Mrs Hoa by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Mrs Hoa, in a statutory declaration signed on 3 December 2018, did however claim: ‘I have been living with my eldest daughter (the sponsor) at Forest Lake since 2005 ever since I arrived in Brisbane. (The sponsor) has provided me with accommodation and food’.

29. For the reasons discussed below, the Tribunal places little weight on Mrs Hoa’s statutory declaration of 3 December 2018 or on the submission and statutory declarations signed in November and December 2015.

30. At the hearing on 4 December 2018, the sponsor and the applicant provided the following information in oral testimony.

    • Mrs Hoa never lived with a daughter in Sydney; when she lived in Sydney, she lived alone.
    • Mrs Hoa did not move to Brisbane in 2005. She did not move to Brisbane until 2013. Before this, she visited Brisbane, but maintained her home in Sydney.
    • The sponsor and her husband divorced in 2006.
    • The sponsor did not move into the Forest Lake house where her husband and daughter were living when she returned to Brisbane from Sydney in late 2012; she moved into a friend’s house in Ellen Grove.
    • The sponsor paid rental of $100 a week for the room she rented at the Ellen Grove house from late 2012 to November 2014.
    • The sponsor’s husband, the applicant’s brother-in-law, was not living in the Forest Lake house when the applicant and her mother arrived from Vietnam on 7 March 2014. He had moved to Redbank Plains before this date.
    • The applicant’s brother-in-law, the sponsor’s husband, visited the Forest Lake house occasionally to ‘check up on things’, including his mother-in-law, to whom he is close, during 2014, and has continued to do so.
    • The sponsor visited her mother and sister at the Forest Lake house between March and November 2014, after work and on weekends, but did not stay at the Forest Lake house overnight, or for entire weekends, during this time.
    • Mrs Hoa has contributed financially to her rental and living costs at Forest Lake. The sponsor has power of attorney over her mother, and manages her Centrelink income.

1. From the evidence provided specifically by the applicant: (that the sponsor’s husband, the applicant’s brother-in-law, was not living in the Forest Lake house when the applicant and her mother arrived from Vietnam on 7 March 2014; that the applicant’s brother-in-law, the sponsor’s husband, visited the Forest Lake house occasionally to ‘check up on things’, including his mother-in-law, to whom he is close, during 2014, and has continued to do so; and that the sponsor visited her mother and sister at the Forest Lake house between March and November 2014, after work and on weekends, but did not stay at the Forest Lake house overnight, or for entire weekends, during this time), the Tribunal has concluded that the story built around the sponsor’s marital troubles, explaining the sponsor’s different residential address from Mrs Hoa, was fabricated for the purpose of the visa application.

2. The Tribunal does not accept the story and claims made in the declarations provided by the parties and the submission from T Lawyers in 2015, and, albeit more vaguely, in Mr Boccabella’s post-hearing submission, that the sponsor was residing only temporarily in a separate residence because of ‘marital troubles’. The Tribunal finds that the sponsor has resided, in the sense of being a ‘usual resident’, in the same house as her mother only since November 2014, after the visa application was refused.

3. Mr Boccabella argued at hearing, and in his post-hearing submission, that the sponsor was the head of the household at Forest Lake and recognised as such, in a metaphorical, emotional and financial sense, despite living at a different address. Regarding this claim, the Tribunal questioned the applicant, the sponsor and the sponsor’s daughter, regarding the claims made in the 2015 submissions and declarations that the sponsor paid rental for herself and her mother at Forest Lake in 2014, while not living there, and paid as well the day-to-day living expenses of the household. The Tribunal pointed out at hearing that the sponsor was in her late sixties in 2014, with health problems including a bad back, and working full time in a low-paid occupation to repay over $100,000 in debts from the failed restaurant business. The Tribunal asked why the sponsor’s siblings, or children, or husband, did not contribute at least financially to caring for Mrs Hoa. The parties responded that other family members were suffering mental illness; too busy; preoccupied with their own families; unwilling; or not in receipt of sufficient income to help. The Tribunal found these responses unconvincing, and does not accept that Mrs Hoa did not receive some emotional and financial support from her other two daughters and three grandchildren or former son-in-law in Australia, in 2014.

4. The sponsor acknowledged at hearing that she has had power of attorney over her mother’s finances, and that she has collected her mother’s age pension for her from Centrelink. The Tribunal asked the sponsor what expenses she had to pay herself, that were not covered by her mother’s money. The Tribunal pointed out that the medications Mrs Hoa was taking, for cholesterol and hypertension, were not particularly expensive (being on the pharmaceuticals benefits list and Mrs Hoa being the holder of a Seniors Health Care Card); that incontinence nappies, to which the parties referred several times, were not particularly expensive; and that the applicant had advised that Mrs Hoa had no special dietary requirements. The sponsor responded that additional expenses included personal services such as physiotherapy. The Tribunal accepts that the sponsor has contributed to costs such as physiotherapy, but no evidence was provided, and the Tribunal does not accept, that she paid all, or the bulk of, these costs from her own income. 

5. The Tribunal accepts that the sponsor and her husband jointly rented the house in Forest Lake in 2004, and that she was a joint head of the household until 2010, when she left to work in Sydney. The Tribunal finds that after she left, her husband was the head of the household, and that after he left in early 2014, the sponsor’s daughter, Margaret, (who was 33 years old in early 2014 and turned 34 in September 2014), was the head of the household. The Tribunal notes that Margaret testified at hearing that she organised help for her grandmother at the Forest Lake house, including from Mrs Hoa’s other granddaughter Helen, before the applicant arrived from Vietnam. No evidence was provided beyond the sponsor’s claim that she paid, from her own income, rental at the Forest Lake house before she returned to live there in November 2014. No evidence was provided, beyond the parties’ claims, that she paid from her own income all the costs of food and other household items consumed at Forest Lake.

6. The Tribunal accepts that the sponsor, as the oldest daughter who sponsored her mother and sisters from Vietnam, has taken a leading role in organising care for her mother. The Tribunal accepts that the sponsor visited her mother often and went shopping with her mother and the applicant and helped care for her mother, before moving in to live with them at the Forest Lake house in November 2014. The Tribunal finds it implausible, however, and does not accept that other family members did not also visit and purchase personal items and help care for Mrs Hoa. Margaret, Mrs Hoa’s granddaughter, impressed the Tribunal as solicitous of her grandmother. The Tribunal also notes that the applicant testified that her brother-in-law is close to his mother-in-law, visited regularly if not often in 2014, and, at the time of decision, continues to visit, to ‘check up on things’. The Tribunal accepts from the evidence provided that the sponsor played an older sibling role in the family, but does not accept that she was the head of the household at Forest Lake and recognised as such after she left for Sydney in 2010, and before she returned in November 2014.

7. At the conclusion of the hearing Mr Boccabella asked the Tribunal if it had any remaining concerns. The Tribunal advised that it was concerned by the inconsistencies between the claims made in the T Lawyer’s submission and statutory declarations provided in November and December 2015, and in oral evidence provided at hearing. Mr Boccabella argued that it was human nature to be inconsistent, and that recollections vary over time. The Tribunal does not accept this argument. The applicant was quite clear in her evidence provided at hearing that the sponsor’s husband, her brother-in-law, was not living in the house at Forest Lake when she arrived from Vietnam with Mrs Hoa in March 2014; that he had moved out, to Redbank Plains, before her arrival in the country. As noted, the Tribunal finds that the story about the sponsor’s marital troubles was fabricated for the purpose of the visa application.

8. Mr Boccabella further argued, in his submission of 11 December 2018, that the legislation could be interpreted as not requiring the sponsor to be usually resident in the household where the person in need of care, Mrs Hoa, resided. The Tribunal does not accept Mr Boccabella’s suggested alternative interpretation. The Tribunal accepts, as set out in the Delegate’s decision, that the legislation requires the sponsor to be a member of the household and usually resident in the household of the person in need of care.

9. The Tribunal finds that the sponsor had a continuity of association with the house in Forest Lake at the time of application in 2014 because her mother, sister, daughter and grandchildren lived there, but does not find that this was a continuity of residence. No evidence was provided, and the Tribunal does not accept, that the sponsor had any intention of returning to live at the Forest Lake house until the visa application was refused on the ground that she did not live there.

10. The Tribunal finds that the applicant was not usually resident in the same household as her mother at the time of application. Therefore cl.836.212 is not met.

11. As the applicant has been found not to meet cl.836.212, she does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa as there is no evidence that the applicant is dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore cl.838.212 is not met. The Tribunal further finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant. The applicant has a husband and four children who are Vietnamese citizens living in Vietnam. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

12. DECISION

13. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Adrienne Millbank
    Member