Tieu (Migration) - [2020] AATA 4732

Tieu (Migration) [2020] AATA 4732 (2 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Men Tieu
VISA APPLICANT:  Mr Le Vu Tran
CASE NUMBER:  1809311
DIBP REFERENCE(S):  OSF2015/070646 OSF2018/031893
MEMBER:Steven Griffiths
DATE:2 September 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311 of Schedule 2 to the Regulations
·cl.309.321 of Schedule 2 to the Regulations

Statement made on 02 September 2020 at 4:00pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of family unit – dependent child – biological child of the primary visa applicant – turned 18 years of age – wholly or substantially reliant – full-time student – unpaid internship – financial reliance – regular bank transfers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v MIAC [2007] FMCA 874
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 Immigration on 16 March 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Mr. Le Vu Tran, applied for the visa on 11 September 2015 on the basis of his relationship with the primary applicant, and his sponsor, the review applicant, Mr. men Tieu. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 because the delegate was not satisfied the visa applicant was the dependent child of the primary visa applicant, and therefore not a member of the family unit of the primary visa applicant at the time of application or at the time of decision.
The applicants registered migration is Mr. Zachary Bright of the Law Firm of Nicholas Koenig & Adrian Simons.
The review applicant appeared before the Tribunal on 2 September 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, the primary applicant, Ms. Thanh Hong Nguyen, and Ms. Thanh Nhanh Nguyen, the aunt of the applicant. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The registered migration agent took part in the hearing.
The Tribunal exercised its discretion to hold the hearing by Microsoft Teams…

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 Tieu (Migration)

Details

AGLC: Tieu (Migration) [2020] AATA 4732
Case: [2020] AATA 4732
Decision Date: 2 September 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding a Partner (Provisional) (Class UF) visa, Subclass 309. The primary dispute revolved around whether the visa applicant, the biological child of the primary visa applicant, qualified as a "dependent child" under the relevant migration regulations, particularly after turning 18 years of age. The Tribunal was required to determine if the applicant met the secondary criteria for the visa, specifically concerning their status as a member of the family unit and their financial reliance on the primary applicant.

The Tribunal considered the evidence presented, including visa application forms and grant notices. It was accepted that the primary visa applicant had satisfied the criteria for a Subclass 309 visa. The Tribunal also accepted that the visa applicant was the biological child of the primary applicant and the stepson of the sponsor. Crucially, the visa application indicated the applicant was born on 10 October 1990, meaning they were 24 years and 11 months old at the time of application. The Tribunal found that the applicant was not engaged to be married or in a partner or spousal relationship at that time.

The central issue was whether the applicant, having turned 18, met the definition of a "dependent child" as defined in the regulations, specifically in relation to being wholly or substantially reliant on the primary applicant for financial support for basic needs. While the Tribunal accepted the applicant was the biological child of the primary applicant, it determined that the applicant did not meet the requirements of "dependent child" based on the information before it at the time of the initial refusal. The Tribunal noted the issues raised in the Refusal Decision Record concerning the applicant's dependency.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations, and the application was remitted to the Minister for reconsideration of the remaining criteria for a Subclass 309 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant meets the secondary criteria in cl.309.311 and cl.309.321 and if the visa applicant is the dependent child of the primary visa applicant, who is married to the sponsor. The Tribunal has considered the visa application forms, and the visa applicant is listed as a secondary applicant in the form and made a combined application with the primary visa applicant. Based on the visa grant notice, the primary visa applicant has been assessed as satisfying the criteria in subdivision 309.21. The Tribunal accepts the primary visa applicant was granted a permanent visa, on the basis she met the requirements of the temporary visa subclass 309, prior to meeting the requirements of the permanent visa subclass 100. Based on the visa grants dated 16 March 2018, the Tribunal accepts that the primary visa applicant was granted a subclass 309 visa. Based on the grant of the 309 visa to the primary visa applicant, I am satisfied that she is a person who satisfies the primary criteria in Subdivision 309.21. Based on the details provided as part of the visa application, the Tribunal accepts that the visa applicant is the biological child of the primary visa applicant, his mother. The Tribunal accepts the documented evidence of the visa applicant being the stepson of the sponsor. The requirements of cl.309.311 are that the visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. The visa application, lodged 11 September 2015, identifies the applicants date of birth as 10 October 1990. The Tribunal accepts the identification details provided for the applicant as part of the visa application and subsequently submitted details, and accepts the applicant was aged 24 years and 11 months at the time of application. The Tribunal accepts the documented and oral evidence of the parties and determines, the visa applicant was not engaged to be married, or had a partner or spouse at the time of application. The Tribunal accepts the visa applicant had turned 18 years at the time of application, and he is the biological child of the primary visa applicant and does not meet the requirements of “dependent child”. The Tribunal notes the issues raised in the Refusal Decision Record in determining the applicant to not be a dependent child of the primary visa applicant within the meaning of r.1.03 at the time of application and decision. The Tribunal notes the issues raised in the Refusal Decision Record in considering the visa applicant to be a dependent as defined in r.1.05A and if the applicant is wholly or substantially reliant on the primary applicant for financial support to meet the basic needs for food, clothing and shelter. The Tribunal accepts the documented and oral evidence of the parties of the primary applicant and sponsor meeting in February 2009, committed to a shared life together December 2010 and marrying on 21 June 2011.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.311 of Schedule 2 to the Regulations·cl.309.321 of Schedule 2 to the Regulations Steven GriffithsMember

Ratio Decidendi

Legal Principle Established

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