Nguyen (Migration)

[2023] AATA 2818

Nguyen (Migration) [2023] AATA 2818 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chi Hieu Nguyen
Mr Chinh Trung Nguyen

CASE NUMBER:  2304214

HOME AFFAIRS REFERENCE(S):          BCC2020/1666015

MEMBER:R. Skaros

DATE:22 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

Statement made on 22 August 2023 at 4:34pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) visa – Subclass 188 Business Innovation and Investment (Provisional) – member of the family unit – wholly or substantially reliant on the primary applicant – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 65, 362, 379
Migration Regulations 1994, Schedule 2, cl 188.311; 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 applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 June 2020 as members of the family unit of their father, Mr Trung Dung Nguyen (the primary visa applicant). The delegate refused to grant the visas on 8 March 2023 on the basis that the applicants did not satisfy the requirements of cl 188.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 188.311 relevantly requires the applicants to be members of the family unit of Mr Trung Dung Nguyen at the time of decision.

3. The applicants did not appear before the Tribunal at the scheduled hearings. For reasons that follow, the Tribunal has decided to proceed to a decision on the information before it.

4. On 21 June 2023, the Tribunal wrote to the applicants, via their then representative, and invited them to attend a hearing which was scheduled for 25 July 2023 at 9.30 am (Adelaide time) by MS Teams videoconference.

5. On 13 July 2023 the Tribunal contacted the representative and invited them to participate in a pre-hearing connection test scheduled for 19 July 2023 for the purpose of conducting a video test trial with all parties intending to participate in the hearing. On 19 July 2023, no one joined the MS Teams video call. An officer of the Tribunal called the representative and was informed that they would not be participating in the test and that they were waiting on instructions from the applicants and trying to gather documents.

6. On 24 July 2023 the Tribunal received an email from the first named review applicant (Mr Chi Hieu Nguyen) requesting a hearing postponement on the basis that the representative was no longer acting for the applicants and they required additional time to look for a new lawyer. A request was also made for an in-person hearing on the basis that the applicants are unable to use MS Teams video.

7. On 24 July 2023, the Tribunal wrote to the applicants informing them that the Tribunal had declined to postpone the hearing. However, they were informed that arrangements had been made for them to attend in person at the Tribunal’s office in Adelaide, where a video hearing would be conducted by the presiding Member, who would be appearing from the Tribunal’s Sydney office. A copy of Form MR 6 was also sent to the applicants requesting them to update their contact details.

8. On 25 July 2023, an officer of the Tribunal contacted the representative to request the contact details of the applicants. The representative, who confirmed they were no longer acting for the applicants, provided the last mobile number they had for Mr Chi Hieu Nguyen. The Tribunal officer called the number provided by presentative and conducted an identification check and confirmed they were speaking with Mr Chi Hieu Nguyen. The officer asked Mr Chi Hieu Nguyen whether he had received the email sent on 24 July 2023 and whether he was attending the hearing scheduled for 25 July 2023 at the Tribunal’s Adelaide office. Mr Chi Hieu Nguyen informed the officer that he had just seen the email and would not be able to attend the hearing. The officer asked him to email the Tribunal with the reasons for the non-attendance and informed him that it would be up to the Member to consider whether to reschedule the hearing. The officer asked Mr Chi Hieu Nguyen to update their contact details with the Tribunal as soon as possible.

9. On 25 July 2023, the Tribunal received the completed MR6 form withdrawing authorisation of the representative and advising that the first named review applicant (Mr Chi Hieu Nguyen) should now receive all correspondence in respect of the present review. Mr Chi Hieu Nguyen requested the Tribunal to postpone the hearing as they still did not have legal representation.

10. On 1 August 2023, the Tribunal wrote to the applicants and invited them to a rescheduled video hearing to be held on 17 August 2023 at 9.30am (Adelaide time) from the Tribunal’s Adelaide office.

11. No response was received from the applicants about whether they intended to appear. On 11 August 2023, an officer of the Tribunal called Mr Chi Hieu Nguyen and left two voicemail messages requesting him to contact the Tribunal about their attendance at the rescheduled hearing. However, Mr Chi Hieu Nguyen did not return the calls.

12. On 14 and 15 August 2023, the Tribunal officer again attempted to call Mr Chi Hieu Nguyen several times to ascertain whether the applicants intended to attend the hearing and whether an interpreter was required. The officer left voice messages requesting the applicant to return the call, however, the calls were not returned.

13. On 15 August 2023, the Tribunal received an email from Mr Chi Hieu Nguyen requesting the hearing be in person for reasons he has previously explained and requesting a Vietnamese interpreter. The officer responded to the email and confirmed that the hearing will be conducted at the Tribunal’s Adelaide office, and that he and Mr Chinh Trung Nguyen should attend the Adelaide office for the hearing as instructed in the hearing invitation sent to them on 1 August 2023 (a copy of which was attached). The applicants were informed that Member would be conducting the hearing via video link from the Tribunal’s Sydney office, but that Registry staff in the Adelaide office would be responsible for setting up the video facility for them. They were requested to arrive at least 15 minutes before the scheduled time (by 9.15am Adelaide time) so that the hearing could commence on time.

14. On 16 August 2023, the Tribunal received the following email from Mr Chi Hieu Nguyen:

    Hi, we are writing this email in request for extension for the hearing.

    The reason for this is because we need more time to find a lawyer to act for me. Since [former lawyer] has been misconduct with us and we have to lodge complaints against him. Due to his misconduct, we were really struggling in our visa application and AAT matter which is why we need more time to find a lawyer, and for the lawyer to understand the situation.

    And if possible, can you please arrange the hearing in person, not in a video conference as we don't feel comfortable in doing it.

    We have attached a copy of complaints against [former lawyer].

15. A copy of a completed Complaint Form: Legal Profession Conduct Commissioner (signed on the same day) was attached to the email. On the same day, the Tribunal wrote to the applicants and informed them that the Tribunal considered their request but has decided not to postpone the hearing. The applicants were informed that there were several issues regarding their review that the Member wished to explain to them at the hearing. The Tribunal informed the applicants that a Vietnamese interpreter would be available during the hearing. They were also informed that if they still wished to seek additional time to make submissions, they could discuss this with the Member at the hearing and that the Member would consider their request for additional time and inform them accordingly. The applicants were informed that the rescheduled time and date of their hearing remains 9.30am Adelaide time on 17 August 2023 and they were requested to arrive at the Tribunal's Adelaide office (the address of which was provided) at least 15 minutes before the hearing is scheduled to begin.

16. The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s 379A(5).

17. The Tribunal considered the applicant’s initial complaint that they wanted an in person hearing because they did not know how to use MS Teams video. They also wanted time to instruct another lawyer. Having regard to the issues in the review and the applicants’ circumstances, the Tribunal considered it reasonable to proceed with a video hearing, but nevertheless arranged for the applicants to attend (in person) the Tribunal’s office in Adelaide where they would be assisted with the setup of a video hearing. As the presiding Member was in Sydney, the Member considered this to be a reasonable solution which would enable a fair and efficient conduct of the review. The applicants failed to appear at the first hearing, and when contacted, Mr Chi Hieu Nguyen, informed the Tribunal officer that he had just seen the Tribunal’s correspondence and would not be able to attend.

18. The Tribunal decided to schedule another hearing. On 1 August 2023, the applicants were informed that the hearing would be held on 17 August 2023. For reasons explained above, the Tribunal considered it reasonable to proceed with a video hearing, but it also arranged for the applicants to attend the Tribunal’s Adelaide office in person, where they could appear from a hearing room by video. From 11 August 2023 to 16 August 2023, an officer of the Tribunal attempted to call Mr Chi Hieu Nguyen on at least 6 occasions, but he did not answer and nor were the officer’s calls returned. The Tribunal arranged for a Vietnamese interpreter, however, the applicants failed to appear. 

19. The Tribunal acknowledges that the applicants have had a dispute with their previous agent/lawyer and that they wished to obtain legal representation. However, they have been on notice since the first hearing invitation that a hearing had been scheduled in their matter. The Tribunal considers that the applicants had sufficient time to instruct another agent/lawyer to represent them. They were also given the opportunity to appear at the rescheduled hearing, where the issues in the review would have been explained to them with the assistance of an interpreter, and they would have had the opportunity to give evidence and seek additional time. However, they did not avail themselves of that opportunity.

20. The Tribunal also does not consider the applicants not being comfortable with a video hearing to be a satisfactory reason not to appear at the rescheduled hearing, particularly given the Tribunal’s arrangement for the applicants to attend the Adelaide office in person, where the hearing would be conducted from a hearing room with video facility, with the assistance of Registry staff and a Vietnamese interpreter.

21. The Tribunal has had regard to the objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal is satisfied, for reasons explained above, that the applicants were given a fair opportunity to give evidence and present arguments at a hearing. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this review is whether Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen are members of the family unit of Mr Trung Dung Nguyen (the primary visa applicant) and satisfy cl 188.311.

24. Clause 188.311 requires Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen to be members of the family unit of a person (the primary applicant) who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

25. 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.

26. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

27. In this matter, Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen were included in Mr Trung Dung Nguyen’s visa application as his children.

28. A person is a member of the family unit of the family head if they are the child or step-child of the family head or of a spouse or de facto partner of the family head.

29. The child or step-child of the family head or of a spouse or de facto partner of the family head must meet certain dependency requirements. Essentially, the child or step-child must not be engaged, married or in a de facto relationship, have not turned 18, or if aged between 18 and 22 years of age they must be must be ‘dependent’ within the meaning of reg 1.05A, or if 23 years of age or older they must be wholly or substantially reliant on the family head or their partner 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.

30. If the applicant has turned 23, as in this case, then the Tribunal must be satisfied that they are dependent on the family head because they meet reg 1.05A(1)(b), i.e. that they are wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. ‘Incapacitated for work’ means the applicant must be at least substantially incapacitated for paid work.

31. Mr Chi Hieu Nguyen was born in December 1999 and is 23 years of age. The documents on the Department’s file for Mr Chi Hieu Nguyen included various personal documents, Form 47A (details of child or other dependent family member aged 18 years or over), personal particulars form and tax return statement. There was no information contained in those documents or other evidence before the Tribunal which supports a finding that Mr Chi Hieu Nguyen suffers from a disability which renders him incapable of working.

32. For these reasons, the Tribunal is not satisfied that Mr Chi Hieu Nguyen is wholly or substantially reliant on his father because he is incapacitated for work due to loss of bodily or mental functions. It follows that the definition in r.1.12(2) does not apply to Mr Chi Hieu Nguyen.

33. Mr Chinh Trung Nguyen was born in April 1998 and is 25 years of age. The documents on the Department file for Mr Chinh Trung Nguyen also included personal documents, a Form 47A, Form 80 (personal particulars) and tax return information. There was no information or evidence which suggested that Mr Chinh Trung Nguyen had a disability (physical or mental), which incapacitates him, such that he needs to financially rely (wholly or substantially) on his father for financial support. For these reasons, the Tribunal finds that r.1.12(2) does not apply to Mr Chinh Trung Nguyen.

34. In relation to the provision in reg 1.12(5), the Tribunal acknowledges that the applicants (Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen) held a Business Skills (Provisional) Class EB (Subclass 188) visa at the time of application. The applicants would have continued to be considered members of the family unit of Mr Trung Dung Nguyen (their faither) had the family applied for the associated permanent visa, namely the Business Skills (Residence) (Class EC) visa, as provided in r.1.12(5), however, this is not what occurred. In this case, the family applied for the renewal (extension) of their temporary Subclass 188 visa, consequently, the applicants were unable to benefit from the provision in r.1.12(5). It follows, that the applicants do not satisfy r.1.12(5).

35. For the above reasons, the Tribunal finds that Mr Chi Hieu Nguyen and Mr Chinh Trung Nguyen are not members of the family unit of the primary visa applicant. It follows that cl 188.311 is not met.

36. The Tribunal notes that there is no evidence before it regarding the current circumstances of the applicants and whether their father (the primary visa applicant) has since been granted a business visa. Had the applicants appeared before the Tribunal, it would have sought further information from them about their and their family’s circumstances so as to ascertain whether this was an appropriate case to refer to the Minister. However, as discussed above, the applicants did not avail themselves of this opportunity and the Tribunal did not consider it in the interest of administrative efficiency to delay the proceedings in the review.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional).

    R. Skaros
    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.

    …

    (5)  In addition to subregulation (2), a person is a member of the family unit, of an applicant for a visa (the new visa) described in column 1 of an item of the following table who seeks to satisfy the primary criteria for the new visa, if, at the time of the application for the new visa, the person:

    (a)  is included in the application for the new visa; and

    (b)  holds a visa (the old visa) described in column 2 of the item granted on the basis that the person was a member of the family unit of a person who held a visa of the same kind as the old visa.

Members of the family units of applicants for new visas
Column 1 New visa applied for	Column 2 Old visa person holds at time of application for new visa
1	Contributory Parent (Migrant) (Class CA) visa	Contributory Parent (Temporary) (Class UT) visa
2	Contributory Aged Parent (Residence) (Class DG) visa	Contributory Aged Parent (Temporary) (Class UU) visa
3	Business Skills (Residence) (Class DF) visa	Business Skills (Provisional) (Class UR) visa
4	Business Skills (Permanent) (Class EC) visa	Business Skills (Provisional) (Class EB) visa