Nguyen (Migration) - [2022] AATA 5179

Nguyen (Migration) [2022] AATA 5179 (14 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Tan Thuong Nguyen
VISA APPLICANT:  Mr Anh Vu Nguyen
CASE NUMBER:  1834040
HOME AFFAIRS REFERENCE(S):          OSF2018/009582
MEMBER:Peter Vlahos
DATE:14 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.211of Schedule 2 to the Regulations; and
·cl 101.221of Schedule 2 to the Regulations.

This Statement was made on 14^th July 2022 at 8.00AM.
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – child/parent relationship – reliance on the parent for financial support to meet certain basic needs – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 101.211, 101.221
CASES
Huynh v MIMA [2006] FCAFC 122
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 November 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 5 June 2018. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Relevant to this case, they include cl. 101.211 which requires the applicant to be a dependent child of an Australian citizen or permanent resident.
The delegate refused to grant the visa on the basis that cl 101.211 (1)(a) was not met because the delegate was not satisfied that the visa applicant was the dependent child of the sponsor (the review applicant) because he (the sponsor) was not the one that was covering the costs of the applicant’s basic needs but were covered by the applicant’s biological mother and the sponsor’s former wife.
The review applicant appeared before the Tribunal on 14 June 2022 to give evidence and present arguments. The hearing was conducted via a teleconference due to the persistence of protective measures having been put in place due to the persistence of the COVID-19 pandemic and the continuation of public health protection measures in place in the State of Victoria, which was held with the consent of the review applicant. The Tribunal also received oral evidence from the review applicant’s son, Mr. Anh Vu Nguyen.
The parties were not represented at the hearing by a registered migration agent or qualified Legal Practitioner.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2022] AATA 5179
Case: [2022] AATA 5179
Decision Date: 14 July 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), made by Mr Nguyen Anh Vu. The applicant's father, the review applicant, sought to have the visa application remitted for reconsideration by the Tribunal. The central dispute revolved around whether the visa applicant met the criteria for being a "dependent child" at the time of his application.

The Tribunal was required to determine whether the visa applicant satisfied the dependent child criteria as set out in cl 101.211 of Schedule 2 to the Migration Regulations 1994. Specifically, this involved assessing whether the applicant was under 25 years of age, whether he was in a relevant child-parent relationship, and crucially, whether he met the definition of a "dependent child" as defined in reg 1.03 of the Regulations, which includes requirements regarding partnership status and, for those aged 18 or over, reliance on a parent for financial support for basic needs or incapacitation for work.

The Tribunal found that the visa applicant, born on 26 November 1996, was 21 years old at the time of application. There was no evidence of him being engaged or partnered. The Tribunal concluded that he met the definition of a child under reg 1.03(a) and, being under 25, also met cl 101.211(1)(b). Furthermore, the Tribunal found that the child-parent relationship criterion was met, as the review applicant had become an Australian citizen in 2016, and the visa applicant was his biological son living in Vietnam.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl 101.211 and cl 101.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl 101.211of Schedule 2 to the Regulations; and·cl 101.221of Schedule 2 to the Regulations.Peter VlahosMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:(a)has not turned 18; or(b)has turned 18 and:(i)is dependent on that person; or(ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.1.05A Dependent(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is 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.…

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether visa applicant meets the dependent child criteria at the time of application.Dependent child criteria The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).Dependent child At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions. The review applicant has provided the Tribunal with the birth certificate for the visa applicant which shows his date of birth as 26 November 1996.[1] This means that he was 21 years-of-age at the time of application. There is no evidence that the visa applicant was engaged or partnered. The Tribunal finds that the visa applicant had turned 18 years at the time of application and was a child as defined in reg. 1.03(a). [1] see, birth certificate, in Department of Home Affairs File no. OSF2018/009582. As the applicant was under the age of 25 years at the time of application, he meets cl.101.211(1)(b). Where the applicant was under 18 years at the time of application, they are also assessed at the time of decision as if still under the age of 18 regardless of whether they have since turned 18 (cl.101.221 (1)(b)). The visa applicant is now 25 years-of-age and the Tribunal finds that he is a dependent child at the time of this decision. Accordingly, cl.101.211(1)(a) was met at the time of application and continues to be met at the time of decision. Child/Parent relationship At the time of application, the visa applicant must be a child (other than an adopted child) or specific kind of stepchild of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c). The review applicant told the Tribunal that he arrived in Australia on 1 March 2011, then as the holder of a Prospective Spouse visa. He became a permanent resident/Australian citizen in 2016. The review applicant had previously been married in Vietnam but had divorced. The review applicant told the Tribunal that he divorced his first wife in 2000. From this previous marriage, the review applicant had two children a daughter and the applicant in this matter, Mr Nguyen Anh Vu, who is current living in Vietnam with his mother and is undertaking studies in Vietnam at a branch of Victoria’s RMIT University. The Tribunal was told by the review applicant that his son had finished his initial studies in 2020 and had re-enrolled for further studies in Professional Management.[2][2] see, AAT File, for confirmation of applicant’s enrolment for further studies at the Vietnam campus, RMIT University.