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

1. 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).

2. 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.

3. 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

4. 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 not presented satisfactory evidence that she was unable to participate in the hearing without her uncle. The Tribunal also offered the applicant and her uncle the opportunity to attend the hearing by telephone, so that no travel arrangements would need to be made.

5. In relation to the representative’s indication that the Department has not finalised its FOI request, even if that was the case, the Tribunal has formed the view that the applicant is not in any way disadvantaged by that fact. The applicant made two requests for Access to Documents to the Tribunal under s. 362A of the Migration Act. The Departmental file was provided to the applicant, through Winstan Lawyers, in August 2017 and again in January 2019. The Tribunal is also mindful that the issues that arise on review is clearly set out in the primary decision record, which is in the applicant’s possession. The applicant was represented by the same agent during the primary application process and Mr Tran would be well familiar with the background and the circumstances of this case. The Tribunal is satisfied that the applicant is well aware of the issues to enable her to meaningfully participate in the hearing.

6. Having considered the applicant’s request to postpone the hearing, the Tribunal decided not to do so and the applicant’s representative was informed of the Tribunal’s decision. Despite that advice, the applicant did not attend the hearing on 4 February 2019. Mr Tran informed the Tribunal that she was attending to her studies instead.

7. The Tribunal invited the applicant to attend a further hearing on 8 February 2019. A few hours before the hearing the applicant’s representative Mr Khoa Dang Tran provided a lengthy written submission to the Tribunal with supporting evidence. It is unclear to the Tribunal why the applicant or her representative chose to provide written arguments and supporting evidence to the Tribunal on the day of the hearing and more two years after her application for review was lodged with the Tribunal. No explanation has been offered by Mr Tran for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters.

   Relevant law

8. At the time the application was made, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of the Subclass 837 visa.

9. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). In the case of an applicant who did not hold a substantive visa at the time of application, and did not hold a Subclass 771 (Transit) visa immediately before ceasing to hold a substantive visa, cl.837.212 requires the applicant to meet Schedule 3 criterion 3002: cl.837.212(b).

10. Criterion 3002 is met if the visa application is validly made within 12 months after the relevant day within the meaning of subclause 3001(2).

    Does the applicant meet Schedule 3 criterion 3002?

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant entered Australia as a holder of a Student visa in April 2010. That visa expired in March 2013 and since that time the applicant has held Bridging E visas. She made the application for the Orphan Relative visa in August 2016.

12. The Tribunal finds that the applicant’s last held a substantive visa was a Student visa which expired in March 2013. The applicant was not the holder of a substantive visa when the present application was made. She does not meet cl. 837.212(a). There is nothing to suggest that the applicant ever held a Subclass 771 Transit visa.

13. The applicant confirmed her immigration history in her submission to the Tribunal of 8 February 2019. In oral evidence, the sponsor explained the circumstances of the previous applications. Her uncle told the Tribunal that he did not realise the applicant’s student visa had expired and when he approached the Department, he was told to take the applicant to Vietnam but he could not locate her parents.

14. Having regard to the information in the primary decision record and the applicant’s written evidence, the Tribunal finds that the last substantive visas held by the applicant was a Student visa which expired in March 2013. The Tribunal finds that this is the ‘relevant day’ within the meaning of subclause 3001(2). As the present application was made in August 2016, the Tribunal is not satisfied that the application was made within 12 months after the relevant day. The Tribunal finds that the applicant does not meet Item 3002. 

15. In her written submission to the Tribunal of 8 February 2019 the applicant refers to the fact that the whereabouts of her family are unknown and she outlined her arrangements with the sponsor and her reliance on him. The applicant notes that she was a child when the previous applications were made and had no control over the process. The applicant refers to the Convention on the Rights of the Child (CROC). The applicant states that there were ‘mistakes’ relating to the processing of her student visa applicant and the failure to apply for the Child visa within the required timeframe and it would be unfair to punish her for such ‘errors’. The Tribunal is mindful that the issues relating to the Student visa are not before the present Tribunal. The Tribunal also cannot comment on the reasons why the present application was lodged outside the required timeframe.

16. With respect to the applicant’s claim that that an adverse outcome would be unfair to her and that the Tribunal must consider Australia’s obligations under CROC and waive the requirement of cl. 837.212. The applicant states that if her visa is not granted, she would have nowhere to turn to and would be deported to Vietnam contrary to the requirements of CROC. The applicant states that it is ‘a matter of public interest’ that she be granted the visa due to her ties in Australia and the hardship she would experience in Vietnam. The applicant refers to lack of safety and support in Vietnam, her poor language skills and other reasons she cannot return to Vietnam.

17. The Tribunal considers such submissions misguided. It is well established that Australia’s international obligations cannot override the express statutory requirements (see, for example, Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 844). Importantly, contrary to Mr Tran’s submission, there is no provision allowing the Tribunal to waive the requirements of cl. 837.212 of Item 3002. Whatever the applicant’s circumstances and whatever care arrangements exist between the applicant and the sponsor, the Tribunal cannot overlook the express provisions of the legislation and these do not allow such considerations to be taken into account.

18. The representative conceded in the course of the hearing that there is no waiver provision in relation to cl. 837.212. The representative submits that cl. 837.212 may be liberally interpreted to allow for the consideration for the applicant’s circumstances. The Tribunal does not consider that the wording of this provision is unclear or open to a different interpretation. Specifically, the Tribunal does not consider that this provision allows for consideration of the applicant’s personal circumstances or the reasons why the applicant does not satisfy schedule 3 criterion 3002.

19. The representative submits that it is the Parliament’s intention to consider exceptional circumstances of children who cannot locate their parents and should be given a right to apply for the visa if there are Australian relatives who are able to support them. The representative does not point to any supporting evidence to establish such a parliamentary intention and the Tribunal does not accept that claim.

20. The Tribunal finds that the applicant was not the holder of a substantive visa at the time she made the application in August 2016. Her application was not made within 12 months after her substantive visa expired, and she does not meet criterion 3002. The Tribunal is not satisfied the applicant meets cl. 837.212.

21. With respect to Subclass 802, there is no evidence before the Tribunal that the visa applicant is the child of the sponsor, either adopted or biological. The application form indicates that she is the biological niece of the sponsor. The applicant presented with her application evidence showing that guardianship arrangements have been put in place and that the sponsor has accepted responsibility in relation to the applicant. The applicant also claims that the whereabouts of her parents is unknown and there is evidence that some arrangements have been made to locate the parents. None of this evidence establishes that the applicant is the child of the sponsor. She is not the biological child of the sponsor and there is no evidence of adoption. The Tribunal considers that guardianship arrangements are not sufficient to establish a parent – child relationship between the applicant and the sponsor.  The Tribunal is not satisfied the applicant is a dependent child of the sponsor. The Tribunal is not satisfied she meets cl 802.212.

    Conclusion

22. 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

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

    Kira Raif
    Senior Member