Tran (Migration) - [2024] AATA 1677

Tran (Migration) [2024] AATA 1677 (3 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Thai Hoa Tran
VISA APPLICANT:  Miss Gia Han Ly
REPRESENTATIVE:  Ms Karen Louis (MARN: 0003543)
CASE NUMBER:  2018330
DIBP REFERENCE(S):  BCC2018/5788174
MEMBER:Peter Emmerton
DATE:3 June 2024
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 03 June 2024 at 10:43am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary applicant – member of the family unit – dependency – financial reliance – ‘wholly or substantially reliant’ – level of reliance – substantial period – financial support provided by a couple – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v MIAC [2007] FMCA 874
Fusi v MIAC [2012] FMCA 1037
Huynh v MIMIA (2006) 152 FCR 576
MIMIA v Pires (1998) FCR 214
Phin v MIAC [2013] FMCA 60
Xie v MIMA (2000) FCA 230
Zeng v MIMIA [2005] FMCA 546
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 25 November 2020 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 applied for the visa on 22 December 2018 on the basis of her relationship with her sponsor, the review applicant. 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 nor 309.321 because not satisfied that the applicant is a dependent child of the primary applicant.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary visa applicant claiming to be a member of the family unit of the primary applicant, satisfies the secondary criteria under cl.309.311 and cl.309.321 of the Act for the grant of the visa.
In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility…

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 Tran (Migration)

Details

AGLC: Tran (Migration) [2024] AATA 1677
Case: [2024] AATA 1677
Decision Date: 3 June 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, where the primary dispute revolved around whether the secondary applicant, identified as the child of the primary applicant, met the criteria for being a member of the family unit. The review applicant, Mr. Thai Hoa Tran, claimed to have been financially supporting the secondary applicant, either through his wife in Australia (the sponsor) or in conjunction with the review applicant. The decision was made by Peter Emmerton.

The Tribunal was required to determine if the secondary applicant satisfied the secondary criteria under cl.309.311 and cl.309.321 of the Migration Regulations. Specifically, this involved assessing whether the secondary applicant qualified as a "member of the family unit" as defined in Regulation 1.12, particularly in relation to being a dependent relative. The assessment necessitated making findings of fact on disputed material matters, including the level and duration of financial reliance.

The Tribunal considered various forms of evidence, including statutory declarations, translated statements, records of money transfers totalling approximately AUD $37,000 between 2021 and 2024, and Vietnamese family and university documents. The core of the Tribunal's reasoning focused on the definition of "member of the family unit" under Regulation 1.12, which includes dependent children and certain relatives who are usually resident in the family head's household and are dependent on them. While the Tribunal acknowledged the evidence presented, it concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration. The direction was that the first and second named visa applicants meet the criteria specified in cl.309.311 and cl.309.321 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

For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the secondary visa applicant claiming to be a member of the family unit of the primary applicant, satisfies the secondary criteria under cl.309.311 and cl.309.321 of the Act for the grant of the visa. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances. The applicants rely on the evidence given before the Tribunal in the form of written submissions and supporting evidence provided to the Tribunal and previously to the Department. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate. The Tribunal has read and carefully considered the following additional evidence provided to it prior to this decision.·Statutory Declaration from Mr Thai Hoa Tran, (review applicant) dated 30 May 2024 Statement (translated) of LY Gia Han, 28 May 2024 Money transfers approximately AUD $37,000 between 2021 and 2024 Vietnam family documents including partial translations of Room Rental Contract- Socialist Republic of Vietnam, 31 August 2023 – Ms Vo Thi Huyen Trang University Acceptance document with handwritten English explanation Letter of Invitation – Van Lang University, undated Van Lan University IT Services Account Information Photos and documents in Vietnamese Representatives’ submission dated 30 May 2024 Photos including gifts for participation in basketball Are the secondary criteria requirements for the secondary applicant met?Member of the family unit and consideration of ‘relative’ This criterion requires that secondary applicants are members of the primary applicant’s family unit. The term ‘member of the family unit’ is defined in Regulation 1.12 of the Migration Regulations. The primary applicant submits at the time of visa application the above visa applicant, her child, as her dependent relatives (Reg 1.12(1)(b) and Reg 1.12(1)(e)) named as the secondary applicant whom she claims she has been supporting financially (through her husband in Australia, the sponsor and review applicant), and more recently by herself in conjunction with the review applicant. Regulation 1.12 provides for the definition of member of the family unit in subsection 5(1) of the Act that, subject to sub-regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:(a) a or of the family head; or(b) a dependent child of the family head or of a or of the family head; or(c) a dependent child of a dependent child of the family head or of a or of the family head; or[(d) omitted by SR 2004, 390 with effect from 02/04/2005 - note](e) a relative of the family head or of a or of the family head who:(i) does not have a spouse or de facto partner; and(ii) is usually resident in the family head's household; and(iii) is on the family head.

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 applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first and second named visa applicants meet 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 RegulationsPeter EmmertonMember

Ratio Decidendi

Legal Principle Established

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