Vo (Migration) - [2020] AATA 3580

Vo (Migration) [2020] AATA 3580 (13 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Tung Long Thi Vo
CASE NUMBER:  1918419
HOME AFFAIRS REFERENCE(S):          BCC2015/959800
MEMBER:Kate Millar
DATE:13 July 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 13 July 2020 at 6:09pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Full Federal Court remittal – member of family unit – ‘usually resident in the family head’s household’ – evidence of a common address –dependency – reliance on more than one person – dependent as distinct from merely receiving assistance – ‘substantial reliance’ – temporal and qualitative elements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A; 1.12; Schedule 2, cl 187.311
CASES
Vo v Minister for Home Affairs [2019] FCAFC 108
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Ms Tung Long Thi Vo is a citizen of the United States. On 26 March 2015 she applied to come to Australia on the basis that she is a member of the family unit of her son Mr Ricky Nguyen. Mr Nguyen had applied for a Subclass 187 visa and has been granted this visa.
To be a member of another person’s family unit, the person must be a relative of the person who does not have a spouse or de facto partner, is usually resident in the family head’s household, and is dependent of the family head. In this case, Mr Nguyen is the family head.
Ms Vo’s visa application was originally refused because a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs found that she did not meet the requirement to be a member of Mr Nguyen’s family unit. The delegate was not satisfied Ms Vo was usually resident in Mr Nguyen’s household, and therefore she did not meet the definition of member of the family unit. Ms Vo applied to this Tribunal for a review of the decision.
On review, the Tribunal (differently constituted) found that Ms Vo was not dependent on Mr Nguyen as defined in the Migration Regulations 1994 (the Regulations).
This decision was affirmed by the Federal Circuit Court, and then set aside by the Full Court of the Federal Court in Vo v Minister for Home Affairs[1] (Vo) which remitted this matter for reconsideration to the Tribunal.
[1] [2019] FCAFC 108
This is the rehearing of this matter following remittal by the Court.
Ms Vo appeared before the Tribunal on 31 March 2020 by teleconference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ricky Nguyen, Mr Tung Thoi Vo (Mr Khoi), Mr Tung Tho Vo (Mr Tung)…

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: [2020] AATA 3580
Decision Date: 13 July 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister to refuse to grant Ms Vo a Regional Employer Nomination (Permanent) (Class RN) visa, specifically Subclass 187. The primary dispute revolved around whether Ms Vo met the secondary criteria for the visa, which required her to be a member of the family unit of Mr Nguyen, the primary visa holder. The Administrative Appeals Tribunal considered the matter.

The legal issues before the Tribunal were whether Ms Vo was a "member of the family unit" of Mr Nguyen, as defined by Regulation 1.12 of the Migration Regulations 1994. This definition required Ms Vo to be a relative of Mr Nguyen, not have a spouse or de facto partner, be usually resident in Mr Nguyen’s household, and be dependent on him. The Tribunal was specifically tasked with determining if Ms Vo satisfied these criteria at the time of the decision.

The Tribunal found that Ms Vo was indeed the mother of Mr Nguyen, based on documentary evidence including a birth certificate, divorce order, change of name certificate, and a DNA test. It was also satisfied that Ms Vo did not have a spouse or de facto partner, having been divorced since 1990. However, the Tribunal did not make findings on whether Ms Vo was usually resident in Mr Nguyen’s household or dependent on him, as these issues were not fully explored in the provided text. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that Ms Vo met the criteria under cl.187.311 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND Ms Vo and Mr Nguyen provided statutory declarations and gave oral evidence to the Tribunal. This background is drawn from their statutory declarations and oral evidence. Ms Vo was born in Vietnam and is one of 13 siblings. There are 10 brothers and 3 sisters, with 8 siblings in Perth, 2 in the United States, 2 in Vietnam and one is deceased. Ms Vo divorced in 1990, and Mr Nguyen is her only child and was born in 1985. In 2002, they migrated to the United States to join her parents who were granted humanitarian visas as her father was in the army. Ms Vo lived in the United States for approximately 8 years, and first came to Australia in 2009. Mr Nguyen migrated to Australia on 11 December 2008, and Ms Vo remained in the United States. He applied for a Subclass 457 visa in 2009, however this was not granted until March 2015. CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 26 March 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Ms Vo is required to meet the secondary criteria in Part 187 to be granted the visa. The delegate refused the visa on the basis that she did not meet cl.187.311 of Schedule 2 to the Regulations, in particular the requirement that she is a member of the family unit of Mr Nguyen. As Mr Nguyen was granted this visa, and Ms Vo made a combined application with Mr Nguyen, she otherwise meets the requirements of cl.187.311. The issue in this case then is whether Ms Vo is a member of Mr Nguyen’s family unit. As the Regulations were at the relevant time, the secondary criteria in Part 187.3 include a note that states These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application. The notes to the Schedule form part of the Regulations[2] and must be given meaning.[3] This meaning may be in the context of the statute as a whole. It follows that the time at which Ms Vo must be a member of Mr Nguyen’s family unit is the time of this decision. [2] Legislation Act 2003 (Cth) s.13; Acts Interpretation Act 1901 (Cth) s.13[3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71] Regulation 1.12 sets out the definition of member of a family unit and, as it applies to Ms Vo, required that she:· Is a relative of Mr Nguyen; and· Does not have a spouse or de facto partner; and· Is usually resident in Mr Nguyen’s household; and· Is dependent on Mr Nguyen.Is Ms Vo a relative of Mr Nguyen?

Evidence

Evidence Before The Court

Mr Nguyen migrated to Australia on 11 December 2008, and Ms Vo remained in the United States. He applied for a Subclass 457 visa in 2009, however this was not granted until March 2015. CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 26 March 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Ms Vo is required to meet the secondary criteria in Part 187 to be granted the visa. The delegate refused the visa on the basis that she did not meet cl.187.311 of Schedule 2 to the Regulations, in particular the requirement that she is a member of the family unit of Mr Nguyen. As Mr Nguyen was granted this visa, and Ms Vo made a combined application with Mr Nguyen, she otherwise meets the requirements of cl.187.311. The issue in this case then is whether Ms Vo is a member of Mr Nguyen’s family unit. As the Regulations were at the relevant time, the secondary criteria in Part 187.3 include a note that states These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application. The notes to the Schedule form part of the Regulations[2] and must be given meaning.[3] This meaning may be in the context of the statute as a whole. It follows that the time at which Ms Vo must be a member of Mr Nguyen’s family unit is the time of this decision. [2] Legislation Act 2003 (Cth) s.13; Acts Interpretation Act 1901 (Cth) s.13[3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71] Regulation 1.12 sets out the definition of member of a family unit and, as it applies to Ms Vo, required that she:· Is a relative of Mr Nguyen; and· Does not have a spouse or de facto partner; and· Is usually resident in Mr Nguyen’s household; and· Is dependent on Mr Nguyen.Is Ms Vo a relative of Mr Nguyen? Ms Vo provided a translated birth certificate for Hoa Minh Nguyen, and a translated divorce order specifying a child of the relationship is Hoa Minh Nguyen. She provided a change of name certificate stating Hoa Minh Nguyen is now known as Ricky Minh Nguyen. She also provided a DNA test, albeit where the taking of the samples was not supervised by Immigration, that shows she as the mother of Mr Nguyen to a probability of 99.99%. As a result of this information, the Tribunal is satisfied Ms Vo is the mother of Mr Nguyen. Does Ms Vo have a spouse or de facto partner? In her statutory declarations, Ms Vo states has been divorced since 1990 and has not had a spouse or de facto partner since. There is nothing to indicate otherwise, and the Tribunal finds she does not have a spouse or de facto partner. Is Ms Vo usually resident in Mr Nguyen’s household?

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·cl.187.311 of Schedule 2 to the Regulations.Kate MillarSenior Member

Ratio Decidendi

Legal Principle Established

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