Tran (Migration) - [2019] AATA 2050

Tran (Migration) [2019] AATA 2050 (8 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Thi Nhu Thao Tran
CASE NUMBER:  1700814
DIBP REFERENCE(S):  CLF2016/51152
MEMBER:Kira Raif
DATE:8 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 08 February 2019 at 10:53am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) – Subclass 837 (Orphan Relative) – no evidence applicant is adopted or biological child of sponsor – biological niece of sponsor – guardianship arrangements not sufficient to establish parent-child relationship – whereabouts of parents unknown – application not made within 12 months after substantive visa expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362A
Migration Regulations 1994 (Cth), Schedule 2, cl 837.212, Public Interest Criterion 3002

CASES
Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 844
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 4 January 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Vietnam born in March 2001. The applicant applied for the visa on 25 August 2016. The delegate refused to grant the visa because the applicant did not meet cl.837.212 of Schedule 2 to the Regulations because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 3002. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 8 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s uncle, Mr Bui. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the reconsideration decision under review should be affirmed.
Procedural matters
The Tribunal wrote to the applicant on 13 December 2018 inviting her to attend the hearing on 4 February 2019. Two hours before the hearing was due to commence, the applicant’s representative Mr Tran of Winstan Lawyers wrote to the Tribunal stating that the carer of the applicant was ill and could not assist the applicant to attend the hearing, requesting hearing postponement. Mr Tran also indicated that the applicant’s FOI request has not been finalised by the Department on time. The Tribunal has considered the request to postpone the hearing but decided not to do so. Firstly, the applicant presented no medical evidence concerning her uncle’s inability to help with the hearing arrangements. The applicant’s representative, who is a legal practitioner, would be well aware of the need to provide supporting evidence such as a medical certificate and this was not done. Secondly, it is unclear why the applicant – who is close to 18 years of age – required a carer to attend the hearing. The applicant has…

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.

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Details

Case: [2019] AATA 2050
Decision Date: 8 February 2019

CaseChat Overview and Summary

The applicant sought review of a decision not to grant a Subclass 837 (Orphan Relative) visa. The applicant was the biological niece of the sponsor, and the whereabouts of her parents were unknown. The Tribunal affirmed the decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Subclass 837 visa. This required determining whether the applicant was an "orphan relative" as defined by the Migration Regulations.

The Tribunal reasoned that the applicant, being the biological niece of the sponsor, did not satisfy the definition of an orphan relative. The regulations require an applicant to be the adopted or biological child of a sponsor, or to be in the legal custody of and be maintained by a sponsor who is a parent of the applicant. The guardianship arrangements in place, while indicating the sponsor's care for the applicant, were not sufficient to establish the necessary parent-child relationship for the purposes of this visa subclass. Furthermore, the Tribunal noted that the application was not made within 12 months after the applicant's substantive visa expired, which is a further criterion for this visa subclass.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.

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

For these reasons, the criteria for the grant of a Subclass 837 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 802).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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