Tran (Migration)

[2019] AATA 1382

Tran (Migration) [2019] AATA 1382 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Thanh Thuy Tran

VISA APPLICANT:  Mr Hoa Hung Nguyen

CASE NUMBER:  1700910

HOME AFFAIRS REFERENCE(S):           2016038854

MEMBER:Kira Raif

DATE:8 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 08 April 2019 at 11:21am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – under the age of 25 – Tribunal’s power to review limited to decision before it – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 101.211

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 on 22 December 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam born in May 1990. He previously applied for the Class TK visa but was refused that visa because his mother was no longer a visa holding parent. The visa applicant applied for the Child visa that is the subject of this review on 17 October 2016. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the visa applicant had turned 25 at the time of application. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211. It requires the visa applicant to be a dependent child of another person and, subject to certain provisions, to be under the age of 25.

   Does the applicant meet cl. 101.211?

6. There is no evidence that at the time of making the application, the applicant was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

7. The primary decision record indicates that the visa applicant was born in May 1990. The application for the visa was made in October 2016. The Tribunal finds that the visa applicant was 26 years of age at the time the application was made.

8. The review applicant provided a number of documents to the Tribunal on 25 March 2019. The review applicant presented evidence of financial transfers and of her communication with the visa applicant. The Tribunal accepts that the review applicant supports the visa applicant financially and also accepts evidence of their contact.

9. The review applicant provided information relating to the visa applicant’s previous visa application and refusal. In her written submission to the Tribunal the review applicant submits that the previous delegate’s and the Tribunal’s decisions in relation to the Subclass 445 visa were affected by jurisdictional errors. The applicant repeated these submissions in oral evidence to the Tribunal in her post-hearing written submissions to the Tribunal. Following the hearing, the applicant provided to the Tribunal a copy of her correspondence to the Department and the Tribunal addressing her concerns with the previous decisions. The Tribunal is mindful, however, that the decision under review does not relate to the refusal of the Subclass 445 visa. The decision that is under review relates to a different visa application. It is unhelpful, in the Tribunal’s view, to establish any jurisdictional error in relation to an application that is not presently before the Tribunal. The applicant’s representative submits that the two decisions should be revisited. The present Tribunal has no power to do so and no power to consider any application other than an application in relation to which the applicant sought review.

10. With respect to the visa applicant’s age, the review applicant submits that her son applied for the Subclass 101 visa only because his previous subclass 445 visa application was refused and that decision was affected by a jurisdictional error and he should have been granted the visa. As noted above, the Tribunal has no power to revisit that decision and to assess the visa applicant’s eligibility for the Subclass 445 visa. The applicant has the option of seeking judicial review in relation to those decisions. The matter for the Tribunal is to determine whether the applicant meets the requirements for the grant of the Subclass 101 visa. The applicant’s motivations in making this application are not relevant to that assessment. Pursuant to s. 65, the Tribunal has no power to grant the visa on the basis that the applicant claims to have been eligible to be granted a different visa which he claims was erroneously refused. In particular, the Tribunal has no power to waive the express statutory requirement in cl 101.211(1)(b) in relation to the applicant’s age because of the circumstances leading to the present application. There is no discretion in relation to the express requirement in that provision.

11. In her submission to the Tribunal of 5 April 2019 the applicant outlined a number of reasons why the Tribunal is able to, and should, consider the circumstances of her son’s previous visa application and reach a correct and preferable decision. As noted above, the Tribunal does not consider that it has any power to do so. Section 65 of the Act does not permit the grant of the visa where an applicant is found not to meet the criteria for the grant of the visa, on the basis that a jurisdictional error may have occurred in relation to a different visa application, The Tribunal’s power to review is limited to the decision before it and not to a different decision that has been finally determined.

12. The Tribunal has found that the visa applicant was over the age of 25 at the time the application was made. There is no evidence of any incapacity. The Tribunal is not satisfied the visa applicant meets cl. 101.211(1)(b) and cl. 101.211.

13. There is no evidence that the visa applicant is an adopted child and he does not meet the requirements for the Adoption visa. As the visa applicant was over the age of 18 when the application was made, he does not meet the definition of ‘orphan relative’ and the requirements for the Orphan Relative visa.

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Essentially, the applicant submits that there were errors in relation to the previous visa application and it would be preferable to avoid costly litigation. The applicant also refers to the lengthy of time that has passed since the application was made. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

15. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Kira Raif
    Senior Member