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Lai (Migration) [2023] AATA  1676  (8 June 2023)

Last Updated: 19 June 2023

Lai (Migration)  [2023] AATA 1676  (8 June 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Huoi Thi Lai

REPRESENTATIVE:

CASE NUMBER: 2008273

HOME AFFAIRS REFERENCE(S): CLF2018/45227

MEMBER: Peter Emmerton

DATE: 8 June 2023

PLACE OF DECISION: Adelaide

DECISION: The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 08 June 2023 at 11:33am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – sponsor was sponsored on a Remaining Relative visa – physical residency and intention – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 835.212, 835.213, 835.221; rr 1.03, 1.15, 1.20

CASES

Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

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 Home Affairs on 1 May 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 26 April 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.213 of Schedule 2 of the Regulations.
3. The delegate refused to grant the visa on the basis that cl 835.213 was not met because they were not satisfied that the applicant has demonstrated she meets clause 835.213 as her sponsor, Ms Mien Thi Nguyen was sponsored on a Subclass 115 (Remaining Relative) visa.
4. The applicant was scheduled to appear before the Tribunal on 7 June 2023 to give evidence and present arguments. They did not appear without notifying the Tribunal on the day of the hearing of their nonattendance at their scheduled hearing.
5. For clarity the chronology of the Tribunal’s engagement is set out below.

AAT Application by applicant 14 May 2020

Hearing Invitation sent 5 May 2023

Advice from Representative that no response received from applicant 12 May 2023

Advice from Representative/Recipient that applicant had appointed
Representative and they were no longer assisting 25 May 2023

AAT attempted telephone call to applicant, and call placed to
Representative that we needed authorisation from applicant
to change correspondence status. 25 May 2023

Response to phone call from Representative - contact of Review
applicant and phone number Received from Representative 26 May 2023

Phone call to Liem Chieu explaining change of representative
change of contacts forms needed 26 May 2023

Request for hearing postponement and change of contact form
received 3 June 2023

Postponement is not granted 5 June 2023

Phone calls from hearing attendant and associate to check
interpreter/other needs, and informed by Liem Chieu of likely
non-attendance the next day. 6 June

Hearing date & non-appearance 7 June 2023

6. The Tribunal has decided to make a decision based upon the material before it. The Tribunal has formed a view the applicant has had ample time to prepare for the hearing and engage a representative with whom they were satisfied from the time they applied for review more than 3 years earlier, should they in fact wish to be represented. It is noted that the review process does not require a representative to appear at the hearing. The Tribunal observes the long history of minimal engagement with the Department throughout the visa determination process and even more scant engagement with the AAT, as the process of review which was initiated by them was being undertaken. Refer to paragraphs 12 and 13 of this decision.
7. The applicant’s lack of engagement with the department and the AAT has hindered the process of meeting the AAT’s objective which is set out in section 2A of the Administrative Appeals Tribunal Act. That is, it must be accessible, is fair, just, economical, informal and quick.
8. It is clear that the applicant can not meet the legislated requirements for a Subclass 835 visa as Ms Mien Thi Nguyen was sponsored on a Subclass 115 (Remaining Relative) visa. The Tribunal is afforded no discretion in this matter. Subsequently, there is no capacity for the AAT to take any course of action other than to affirm the original Departmental decision.
9. By making a decision the Tribunal is able to clear the way for the applicant to apply for Ministerial Intervention should they so desire. This is a course of action which is not enlivened prior to a decision by the AAT.
10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application was made on the basis that the applicant is the remaining relative of Ms Mien Thi Nguyen, who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).
12. The Tribunal has read and carefully considered the following evidence presented to the Department prior to the AAT hearing.

• Department refusal dated 1 May 2020
• Department application summary
• Passport photos of review applicant, Birth Certificate of review applicant translated on 3 April 2018
• Statement of Ms Mein Thi Nguyen, dated 20 April 2018, and Passport
• Citizenship Certificate of Ms Mien Thi Nguyen dated 7 April 2011
• Certificate of Title, Liem Chau, 20 April 2018
• Death Certificate, New York, Hoa Kiem Huynh dated 29 March 2018
• Court document of child support dated 29 March 2018, Hoa Huynh against Huoi Lai
• Visa Application forms

13. The Tribunal has read and carefully considered the following evidence presented to the Tribunal prior to the scheduled AAT hearing which did not occur due to non-appearance of the applicant.
    • Request for extension of hearing scheduled for 7 June 2023 received 3 June 2023
    • MR6 Form - Change of Contact dated 3 June 2023

14. In this case Ms Mien Thi Nguyen is the applicant’s mother, an Australian citizen and is therefore, an Australian relative for these purposes.

Is the applicant a remaining relative of an Australian relative?

15. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application and continue to be a ‘remaining relative’ at time of decision: cl 835.212 and cl 835.221. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision.
16. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent, (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.
17. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.

The requirement to be a parent or sibling: reg 1.15(1)(a)

18. The Tribunal has reviewed the relevant identification documents of both the visa applicant and sponsor including in both individual’s cases, Passport photographs and data pages. The Tribunal is satisfied that the Australian relative in this case is the mother of the applicant, reg 1.15(1)(a) is met.

Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)

19. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in reg 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.
20. Travel records and immigration records maintained and provided by the Department clearly indicate that the Australian relative referred to in this decision is usually resident in Australia. As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.

Assessment of Clause 835.213

21. A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied. Clauses 835.213 in Schedule 2 of the Regulations has not been met by the applicant on the date the Tribunal made its decision.
22. Documents supplied with the application demonstrate that the applicant Ms Huoi Thi Lai claims to be the daughter of the sponsor, Ms Mien Thi Nguyen who is an Australian permanent resident and who is usually resident in Australia. As stated previously the Tribunal accepts this as fact and it is not in dispute.
23. Within the definition of ‘remaining relative’ sub regulation 1.20K (1)(a) and (b) requires that the applicant demonstrates that they are not sponsored by an applicant; if that applicant is sponsored for the visa by a person

(a) who is an Australian relative for the applicant; and

(b) to whom the Minister has granted any of the following:

(i) a Subclass 104 visa;

(ii) a Subclass 115 (Remaining Relative) visa;

(iii) a Subclass 806 visa;

(iv) a Subclass 835 (Remaining Relative) visa.

24. The Tribunal has interrogated Departmental records which confirm that Ms Mien Thi Nguyen was granted a Remaining Relative (Offshore)(BO 115) visa on 25 May 2005 and arrived in Australia with that visa on 18 June 2005.
25. Therefore, the Tribunal cannot be satisfied the applicant has demonstrated they meet clause 835.213 as their sponsor, Ms Mien Thi Nguyen was sponsored on a Subclass 115 (Remaining Relative) visa.
26. The Tribunal must consequently find that the applicant has not demonstrated that they meet the requirements of sub regulation 1.20K (1)(a) and (b) within the definition of remaining relative at Regulation 1.15 at time of application. Therefore, the Tribunal must find that the applicant does not meet clause 835.213 in Schedule 2 of the Regulation.
27. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
28. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Peter Emmerton
Member

ATTACHMENT - Extracts from the Migration Regulations 1994

1.15 Remaining relative

(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

(a) the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

(b) the other person is usually resident in Australia; and

(c) the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

(i) usually resident in Australia; and

(ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

(d) if the applicant is a child who:

(i) has not turned 18; and

(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

(2) In this regulation:

near relative, in relation to an applicant, means a person who is:

(a) a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

(b) a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:

(i) has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).

Regulation 1.20K - Limitation on sponsorships – remaining relative visas

The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:

(a) who is an Australian relative for the applicant; and

(b) to whom the Minister has granted any of the following:

(i) a Subclass 104 visa;

(ii) a Subclass 115 (Remaining Relative) visa;

(iii) a Subclass 806 visa;

(iv) a Subclass 835 (Remaining Relative) visa.

(2) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if the applicant is sponsored for the visa by a person:

(a) who is an Australian relative for the applicant; and

(b) who has sponsored another applicant for any of the following:

(i) a Subclass 104 visa;

(ii) a Subclass 115 (Remaining Relative) visa;

(iii) a Subclass 806 visa;

(iv) a Subclass 835 (Remaining Relative) visa; and

(c) the Minister granted the visa to the other applicant.

(3) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:

(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and

(b) the Australian relative for the applicant is a person to whom the Minister has granted any of the following:

(i) a Subclass 104 visa;

(ii) a Subclass 115 (Remaining Relative) visa;

(iii) a Subclass 806 visa;

(iv) a Subclass 835 (Remaining Relative) visa.

(4) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:

(a) the applicant is sponsored for the visa by a person who is the spouse or de facto partner of an Australian relative for the applicant; and

(b) the Australian relative for the applicant has sponsored another applicant for any of the following:

(i) a Subclass 104 visa;

(ii) a Subclass 115 (Remaining Relative) visa;

(iii) a Subclass 806 visa;

(iv) a Subclass 835 (Remaining Relative) visa; and

(c) the Minister granted the visa to the other applicant.

(5) The Minister must not grant a Subclass 115 (Remaining Relative) visa or a Subclass 835 (Remaining Relative) visa to an applicant if:

(a) the applicant is sponsored for the visa by the spouse or de facto partner of an Australian relative for the applicant; and

(b) the spouse or de facto partner has sponsored another applicant who is a relative of the Australian relative for the applicant for any of the following:

(i) a Subclass 104 visa;

(ii) a Subclass 115 (Remaining Relative) visa;

(iii) a Subclass 806 visa;

(iv) a Subclass 835 (Remaining Relative) visa; and

(c) the Minister granted the visa to the other applicant.

(6) In this regulation:

Subclass 104 visa means a Subclass 104 (Preferential Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.

Subclass 806 visa means a Subclass 806 (Family) visa that could have been granted by the Minister under these Regulations, as in force immediately before 1 November 1999.