Tran (Migration)

[2018] AATA 262

Tran (Migration) [2018] AATA 262 (8 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thai The Tran

VISA APPLICANT:  Miss Thu Thao Tran

CASE NUMBER:  1622294

DIBP REFERENCE(S):  OSF2016/038389

MEMBER:Susan Trotter

DATE:8 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 08 February 2018 at 4:21pm

CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – Visa-holding parent – Holder of bridging visa – Outcome of decision at the Federal Court of Australia

LEGISLATION
Migration Act 1958, ss 65, 359C, 360(3), 363
Migration Regulations 1994, rr 1.03, 1.05A, Schedule 1 Item 1211, Schedule 2, cls 445.111, 445.211, 445.221, 445.223

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2014] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 and Border Protection (the Minister) on 25 November 2016 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 July 2016. The delegate refused to grant the visa on the basis that the visa applicant’s parent, Ms Thi Xuan Nga Le, was not a “visa-holding parent” as required for the criteria for the visa to be met.

3. The review applicant, the visa applicant’s sponsor and father, lodged an application for review with the Tribunal on 23 December 2016.

4. The review applicant was represented in relation to the review by his registered migration agent.

5. A letter from the review applicant’s registered migration agent to the Tribunal dated 10 January 2018, received 11 January 2018, stated as follows:

   We note that the main applicant Thi Xuan Nga Le is in the midst of appealing to the  Federal Court of Australia (FCA). Please find attached FCA’s Direction for your record.

   We kindly ask if you consider pending the hearing until after our client has received the decision from the Federal Court of Australia.

6. The Tribunal responded to that letter on 11 January 2018 as follows:

   In response to the correspondence dated the 10/01/2018, the Tribunal wishes to advise that both this application and the related application 1701019 will be deconstituted awaiting the outcome of the Decision at the Federal Circuit Court. As a result the Hearing on the 13/02/2018 at 11:30am will be postponed.

   Please advise the Tribunal of the outcome of the Federal Circuit Court Decision, following this Decision, the Tribunal will reconstituted the cases accordingly.

7. On 18 January 2018, the Tribunal invited the review applicant to comment on or respond to certain information before it and/or to provide information addressing the requirements of the visa. The Tribunal’s letter stated as follows:

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant an Extended Eligibility (Temporary) (Class TK) visa to Miss Thu Thao Tran.

   In conducting the review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that the Tribunal has not made up its mind about the information.

   The particulars of the information are:

   ·Records of the Department of Immigration and Border Protection show that Miss Thi Xuan Nga Le, who is identified in the visa application as Miss Tran’s mother, was the holder of a Bridging visa at the time of Miss Tran’s visa application on 29 July 2016 and not the holder of a Subclass 309 (Spouse (Provisional)), (Subclass 309 (Partner (Provisional)), Subclass 310 (Independency (Provisional)), Subclass 445 (Dependent Child), Subclass 820 (Spouse), Subclass 820 (Partner) or Subclass 826 (interdependency) visa.

   ·Records of the Department of Immigration and Border Protection show that Mr Thai The Tran, who is identified in the visa application as Miss Tran’s father and the main source of her financial support, was not the holder of a Subclass 309 (Spouse (Provisional)), (Subclass 309 (Partner (Provisional)), Subclass 310 (Independency (Provisional)), Subclass 445 (Dependent Child), Subclass 820 (Spouse), Subclass 820 (Partner) or Subclass 826 (interdependency) visa at the time of the visa application on 29 July 2016.

   This information is relevant to the review because the requirements for grant of the visa include that at the time of application for the visa on 29 July 2016 (pursuant to cl.445.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations)) and at the time of decision (pursuant to cl.445.221 of Schedule 2 to the Regulations), the visa applicant was:

   1.    a dependent child of a visa-holding parent; and

   2.    sponsored by the nominator or sponsor of the visa-holding parent.

   Clause 445.111 of Schedule 2 to the Regulation provides:

   For this Part, the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:

   (a) Subclass 309 (Spouse (Provisional));

   (aa) Subclass 309 (Partner (Provisional));

   (b) Subclass 310 (Independency (Provisional));

   (c) Subclass 445 (Dependent Child);

   (d) Subclass 820 (Spouse);

   (da) Subclass 820 (Partner);

   (e) Subclass 826 (interdependency).

   Clause 445 of Schedule 2 to the Regulations is extracted as an attachment to this letter for your reference.

   The information that neither Ms Le nor Mr Tran was a “visa-holding parent” at the time of the visa application on 29 July 2016 could lead the Tribunal to find that Miss Tran does not satisfy the criteria for the visa. The Tribunal notes from your representative’s letter to the Tribunal dated 10 January 2018 that Miss Thi Xuan Nga Le is currently appealing to the Federal Court of Australia in relation to refusal of a Subclass 820 visa to her. Regardless of the ultimate decision in relation to that Subclass 820 visa application by Ms Le, the position remains that as at 29 July 2016, neither Ms Le nor Mr Tran was a “visa-holding parent”, and there is no basis to continue to delay finalisation of this matter as you have requested pending the outcome of the Federal Court of Australia’s decision in relation to Ms Le’s matter.

   If the Tribunal relies on this information in making its decision, it would lead the Tribunal to find that Ms Tran does not meet cl.445.211 of the Regulations. This would lead the Tribunal to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 1 February 2018. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 1 February 2018, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 1 February 2018 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

8. The invitation was sent to the review applicant’s nominated authorised recipient, his registered migration agent, at the address last provided in connection with the review, being the recipient’s email address as advised to the Tribunal.

9. On 23 January 2018, the Tribunal received a letter from the review applicant’s registered migration agent dated 18 January 2018 (in relation to a related matter, Tribunal file no 1701019) but with reference to both matters, as follows:

   We note that we have written to you in our letter dated 10 January 2018 (attached for your reference) asking if you can consider pending the hearing until after our client has received the decision from the Federal Court of Australia.

   We confirm that we have received a response visa email, dated 11 January 2018 (attached for your reference) advising that both this application and the related application 1622294 will be placed on hold awaiting the outcome of the Decision of the Federal Circuit Court.

   Therefore, can please you confirm that our client is not required to respond to this letter and awaiting the outcome of the decision of the Federal Court Australia.

   [sic]

10. The Tribunal did not consider the letter dated 18 January 2018, received 23 January 2018, received from the applicant’s registered migration agent to be a response to the Tribunal’s letter of 18 January 2018. On 23 January 2018, the Tribunal wrote to the applicant care of his migration agent in the following terms:

    I refer to your correspondence of 23 January 2018 on the related case to this file. The Member already considered the correspondence of 10 and 11 January 2018 and advised you of the Tribunal’s reasons for proceeding on 18 January 2018 as follows:

    “The information that neither Ms Le nor Mr Tran was a “visa-holding parent” at the time of the visa application on 29 July 2016 could lead the Tribunal to find that Miss Tran does not satisfy the criteria for the visa. The Tribunal notes from your representative’s letter to the Tribunal dated 10 January 2018 that Miss Thi Xuan Nga Le is currently appealing to the Federal Court of Australia in relation to refusal of a Subclass 820 visa to her. Regardless of the ultimate decision in relation to that Subclass 820 visa application by Ms Le, the position remains that as at 29 July 2016, neither Ms Le nor Mr Tran was a “visa-holding parent”, and there is no basis to continue to delay finalisation of this matter as you have requested pending the outcome of the Federal Court of Australia’s decision in relation to Ms Le’s matter.”

    The Tribunal’s letter of 18 January 2018 clearly superseded its letter of 11 January 2018 and the current position is that the Tribunal is not delaying finalisation of either case 1622294 or case 1701019 pending the Federal Court decision in relation to Mrs Thi Xuan Nga Le’s Subclass 820 visa.

    Please find attached for your convenience the ‘Invitation to Comment or Respond to Information’ letter of 18 January 2018, noting that the Tribunal requires a response or a request for extension of time with reasons by 1 February 2018.

11. The Tribunal did not receive a response to its 18 January 2018 letter by 1 February 2018 as stated was required in the 18 January 2018 letter, and as was again pointed out in the Tribunal’s email of 23 January 2018, nor has the Tribunal received a response as at the date of this decision. That is, the Tribunal did not receive a response to or comments on the stated information within the prescribed time for responding to the statutory invitation, nor was an extension of time sought within which to respond. As the review applicant failed to provide written comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the review applicant’s comments/response.

12. Further, as s.359C(2) of the Act applies to the review applicant, he loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act.

13. Although neither the review applicant nor his representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the review applicant additional time in which to provide evidence to support his application for review, or pending the outcome of the Federal Court application in relation to the visa applicant’s mother’s Subclass 820 visa application.

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

15. The review applicant and his representative did not provide any response or comment to the Tribunal’s invitation within the prescribed period set for this purpose.

16. The Tribunal has taken into account the fact that the review applicant has had the benefit of representation from a registered migration agent in order to assist him with this application and considers it reasonable to expect that applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of the invitation the Tribunal sent to the applicant on 18 January 2018.

17. In these circumstances, the Tribunal considers that the review applicant has had sufficient time in which to address the central issues arising in the application for review. Further, as noted in the 18 January 2018 letter, regardless of the ultimate decision in relation to the Subclass 820 visa application by Ms Le, the position remains that as at the date of the visa application the subject of this review, 29 July 2016, the visa applicant did not have a “visa-holding parent” as defined and as required, and there is no basis to continue to delay finalisation of this matter pending the outcome of the Federal Court of Australia’s decision in relation to Ms Le’s matter.

18. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time in which to demonstrate that the visa applicant meets the requirements of cl.445.223(4)(a) for the purposes of her Subclass 445 visa application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations.

21. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

22. The primary criteria require that at the time of application, the visa applicant must be a “dependent child” (as defined in r.1.03 and r.1.05A) of a visa-holding parent: cl.445.211(a). A “visa-holding parent” is defined to include a person who is the holder of any of the following visas: Subclass 309; Subclass 310; Subclass 445; Subclass 820; Subclass 826.

23. The other primary criterion to be satisfied at the time of application for this Subclass, is that the visa applicant is sponsored by the nominator or sponsor of the visa-holding parent: cl.445.211(b). At the time of decision, cl. 445.221 provides that the parent of the applicant must continue to be a visa-holding parent. The visa applicant must also continue to be a dependent child of the visa-holding parent – cl. 445.222.

24. As noted in the Tribunal’s 18 January 2018 letter, records of the Department show that Miss Thi Xuan Nga Le, who is identified in the visa application as the visa applicant’s mother, was the holder of a bridging visa at the time of the visa application on 29 July 2016 and not the holder of a Subclass 309 (Spouse (Provisional)), (Subclass 309 (Partner (Provisional)), Subclass 310 (Independency (Provisional)), Subclass 445 (Dependent Child), Subclass 820 (Spouse), Subclass 820 (Partner) or Subclass 826 (Interdependency) visa. It follows that the requirement of cl.445.211(a) is not and cannot be met.

25. Even if Ms Le was to be granted a Subclass 820 visa in the future, including following a favourable decision in relation to the pending Federal Court appeal and subsequent remittal and favourable decision and grant, the position cannot change that the requirement for her to be the holder of one of specified visas at the time of the visa application was not met.

26. For completeness, as also noted in the Tribunal’s 18 January 2018 letter to the review applicant, the Department’s records show that the visa applicant’s father, the sponsor and review applicant, was also not the holder of one of the stipulated visas at the time of the visa application.

27. Clause 445.211(a) is therefore not satisfied and cannot be satisfied. The visa applicant does not and cannot satisfy the mandatory time of visa application criteria for the grant of the visa.

28. The visa applicant therefore does not satisfy all the required criteria for the grant of the visa.

    DECISION

29. The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

    Susan Trotter
    Member