Nguyen (Migration)

[2023] AATA 2975

Nguyen (Migration) [2023] AATA 2975 (31 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr. Minh Hieu Nguyen

VISA APPLICANT:  Miss My Phung Hang

REPRESENTATIVE:  Mrs. Pauline Lam (MARN: 9476142)

CASE NUMBER:  2307377

HOME AFFAIRS REFERENCE(S):          BCC2017/1062530

MEMBER:Jennifer Cripps Watts

DATE:31 August 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 31 August 2023 at 11:58am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicant over 22 years old – member of the family unit – dependence – not incapacitated for work – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.03, 1.05, 1.12

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 applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 17 March 2017, the visa applicant was included in a combined partner visa application.  The first named and primary visa applicant was the applicant’s mother, Thi My Nguyen; the applicant is the second named applicant; and the applicant’s younger sibling, Phu Hang, was the third named applicant.

3. The review applicant is the sponsoring partner of the applicant’s mother.  Departmental records indicate that the applicant’s mother was granted the subclass 309/100 visas on 9 May 2023, as was the applicant’s younger sibling, as a member of the family unit of the primary visa applicant.  They have both arrived onshore now and hold subclass 100 visas.

4. The delegate refused to grant the visa of the visa applicant relating to this review application on 10 May 2023 on the basis that the visa applicant did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit.

5. The review applicant appeared before the Tribunal on 31 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Mrs Thi My Nguyen, and wife of the review applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The representative did not attend the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the applicant is a member of the family unit of a person who satisfies the primary criteria, and the applicant satisfies the secondary criteria at the time of decision:  cl.309.321.

9. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

10. However, in this case, it was explained that it is essentially the age of the applicant at the time of decision that is the reason the visa was refused.  With reference to reg 1.12(2), it was explained at the Tribunal hearing that there are three ways a person can meet the definition if they are a child of the family head:

    ·they are not engaged; do not have a spouse or de facto partner and they have not turned 18 or

    ·if aged between 18 and 22 years of age they are dependent on the family head (or partner)

    ·or if 23 years of age or older they are wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions.

11. It appears that at the time of application the applicant was a member of the family unit of the primary visa applicant, her mother.  However, whether or not the applicant met the time of application criteria is not the determinative issue on review.  It is whether the applicant meets the secondary criteria at the time of decision.

12. ‘Dependent child’ is defined in reg 1.03 of the Regulations.  Essentially, the child or stepchild must not be engaged, married or in a de facto relationship and have not turned 18 or, if they have turned 18, must be ‘dependent’ on the parent within the meaning of reg 1.05A, or be incapacitated for work due to loss of bodily or mental functions.

13. As summarised above, the question of dependency is a time of decision requirement.  Essentially this requires that the member of the family unit claiming to be dependent on the parent to:

    ·be under 18 years of age; or

    ·have turned 18 but have not turned 23 and be dependent on the family head or on the spouse or de facto partner of the family head; or

    ·have turned 23 and (under paragraph 1.05A(1)(b)) be dependent on the parent with whom they made the combined visa application because they are incapacitated for work due to the total or partial loss of their bodily mental functions.

14. In this case the visa applicant is:

    ·the child of the primary visa applicant, her mother; and

    ·she is 24 years of age at the time of this decision

15. As the visa applicant is 23 years of age or older, it is a requirement of s 1.05(1)(b) of the Act (for the purpose of satisfying the secondary criteria for the grant of the visa) that they are wholly or substantially reliant on the parent for financial support because they are incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

16. The visa applicant has never claimed that the s 1.05(1)(b) requirements apply in her case; she was 17 years of age when the visa application was made by her mother in 2017.  There has been a significant time that has passed between the time the visa application was made and the date a decision was made on the application; more than six years.  Firstly, on 13 January 2020, the mother of the visa applicant had the visa refused for failing to meet the health requirement, with the consequence that the two dependent applicants who were included in the application did not meet the secondary criteria, so their visas were also refused.

17. On 21 January 2020, the sponsor made an application for review to the Tribunal.  On 6 March 2023, the matter was constituted to the current member and, on 9 March 2023, the decision was set aside and sent back to the Department for reconsideration on the basis that the primary applicant met the health criteria (PIC 4007).  The primary applicant and the other child included in the application, a child born in 2005, were both granted subclass 309 and 100 visas on 9 May 2023, offshore.  They both travelled to Australia in July 2023 and both hold subclass 100 visas.  The applicant, by the time a decision was made on the application was already 23 years of age or older. 

18. The applicant did not meet the criteria, because of her age and there being no claim or evidence provided that the applicant, who was by then over 23 years of age, was incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

19. The review applicant and the visa applicant’s mother (the parents) appeared together by video and gave their evidence in each other’s presence.  The above matters were discussed with the parents and it was explained by the Tribunal, in detail, by going through the requirements for a person to be dependent for the purpose of a meeting the criteria for the grant of a subclass 309/100 visa, why the applicant did not appear to meet the criteria.

20. The parents were referred to being invited by the Department, before a decision was made to refuse the applicant’s visa, to address the dependency threshold as it is required by reg 1.05(1)(b) in the visa applicant’s circumstances; that is, where she has already turned 23.  At the Tribunal hearing, the parents confirmed that the visa applicant continues to be a student and that she is not incapacitated for work due to the total or partial loss of her bodily or mental functions.  The parents were asked if they understood that the visa applicant could not meet the requirement and said they did.

21. The Tribunal told the parents that it would not be able to make a favourable decision and that they should consider discussing with the migration agent if there are any other visas that the visa applicant can apply for.  Or, in the alternative, now that they will have a decision from the Tribunal, whether they may wish to apply to have the matter referred to the Minister.  The parents were told that the Tribunal would write the decision up as quickly as possible so they may consider their options without any further delay.

22. For the reasons given, the applicant is not the dependent child of the family head and cl 309.311 is not met.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF).

    Jennifer Cripps Watts
    Senior Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …