1411902 (Migration)

[2015] AATA 3538

1411902 (Migration) [2015] AATA 3538 (9 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ny Son

VISA APPLICANT:  Mr Van Nam Truong

CASE NUMBER:  1411902

DIBP REFERENCE(S):  2010070160

MEMBER:Glynis Bartley

DATE:9 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

· cl.309.311 of Schedule 2 to the Regulations; and

· cl.309.321(a) of Schedule 2 to the Regulations

Statement made on 9 October 2015 at 2:17pm

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 to refuse to grant the visa applicant, Mr Van Nam Truong, a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act). Mr Truong is 24 years old and is a citizen of Vietnam.

2. The primary visa applicant, Ms Thi Cam Hang Pham, applied for the visa on 23 July 2010 on the basis of her relationship with the sponsor, Mr Son. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Ms Pham’s four children, including Mr Truong, were included in the application as secondary applicants.

3. The visa applications were refused on 9 December 2010 because the delegate was not satisfied that Ms Pham and Mr Son were in a genuine and continuing spousal relationship. Mr Son sought review of that decision, and on 8 November 2012 the Migration Review Tribunal (differently constituted) remitted the decision regarding Ms Pham to the Department with directions.

4. On 14 May 2014 a delegate refused to grant the visa to Mr Truong on the basis that he did not satisfy cl.309.321 of Schedule 2 to Regulations. The delegate was not satisfied that Mr Truong was a “member of the family unit” of Ms Pham.

5. On 7 July 2014 Mr Son applied to this Tribunal for review of the delegate’s decision.

6. Mr Son appeared before the Tribunal on 17 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Pham and Ms Thi Cam Tam Do in person and from Mr Truong by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.

7. Mr Son was represented in relation to the review by his registered migration agent who appeared at the hearing.

8. Prior to the hearing, Mr Son’s migration agent provided further documentation to the Tribunal including but not limited to the following: a copy of the Record of Decision, statutory declarations by Mr Truong, Ms Pham, Mr Son and Ms Do, documents regarding Mr Truong’s study in Vietnam, money transfer receipts and a statement by Mr Dinh Khang Vo regarding money transfers from Ms Pham to Mr Truong. 

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   TRIBUNAL HEARING

   Mr Son’s evidence

10. Mr Son said that Mr Truong is studying a Master’s degree in health science. His wife sends money to Mr Truong now that she is here and she hopes that the family can be reunited. Mr Truong is single and has no health problems. Ms Pham sends $200 to her son through a money transfer agency in Cabramatta every month and has been doing so since she arrived in Australia in June last year. Mr Son said that he receives age pension and he also has some savings. His wife works at a restaurant and they pool their money.

11. As far as Mr Son is aware, Mr Truong did some English tutoring for someone in their home; it was not very much and only during his holiday period. Mr Truong lives alone and is studying at the moment.

    Ms Pham’s evidence

12. Ms Pham told the Tribunal that she came to Australia with three of her children in June 2014. Her son, Mr Truong, finished his science degree in September 2013 and then did some further study to prepare for his master’s course. He continued to reside at the same guesthouse in Ho Chi Minh City. Ms Pham confirmed that her son is single and does not have any health problems.

13. When he finished his science degree, Mr Truong intended to do further study in Australia. He asked Ms Pham’s permission to have some time off to prepare for the exams to be accepted into the master’s degree. He studied graphic design in 2014 because he enjoyed that and wanted to study in a course that he liked.

14. Ms Pham said that her son did not have sufficient time to prepare for the exams for the master’s degree and also the exams for the course that he wanted to study were only offered in October 2014. Ms Pham said that she supported her son by sending him VND4million per month until he finished his bachelor degree. She then reduced the figure to VND3million per month because he had fewer expenses when he finished the bachelor degree as he was studying at home.

15. In March 2014 Mr Truong asked Ms Pham’s permission to do some tutoring work for his landlord to help his niece and two others to prepare for their exams. Ms Pham said that she is not aware of what subject her son was providing tutoring in. The Tribunal asked Ms Pham why her son had asked for permission to work as a tutor. She said that he wanted to keep any additional money that he earned because he wanted to repair his motorbike and purchase speakers for his computer. Ms Pham said that her son only did tutoring work for three weeks.

16. Before she came to Australia, Ms Pham sent the money to her son each month via a driver who lives in her home village; Mr Khang. He delivered cash to her son in Ho Chi Minh City each month. In response to the Tribunal’s questioning, Ms Pham said that Mr Khang was not paid for his services, although they gave him gifts on special occasions. Mr Khang works as a coach driver and Mr Truong came to the bus depot to collect the money in person. Ms Pham said that she had never transferred money through a bank and does not know how to.

17. Mr Truong’s rent was VND500,000 per month when he was studying in the bachelor degree, but it is now VND1million per month. He has sufficient funds from the money she sends him to buy clothes. Mr Truong sees his father once per year but his father does not assist him to meet any of his living expenses. Ms Pham said that her ex-husband is a gambler and a drinker. Ms Pham told the Tribunal that her son is a very good student and she misses him very much.

    Ms Do’s evidence

18. Ms Do said that she is Ms Pham’s sister-in-law. She has met Mr Truong in Vietnam and he is a good student and studies hard. He is the only person in their village of 10,000 that has attended university. His English is very good. Ms Do understands that Mr Truong was asked by his landlord to tutor the landlord’s niece and some friends to help them prepare for their exams.

    Evidence of Mr Truong

19. Mr Truong said that he is single and has no health problems. He is currently studying in a Master of Material Science and commenced that course in December 2014. Mr Truong finished his bachelor degree in September 2013 and intended to go on to study at the master’s level. He could not enrol immediately in the master’s program because the exam for his field of study was only offered in October 2014. During that period he studied English to prepare for the master’s level exam and also studied in a graphic design course. Mr Truong said that he studied in the graphic design course between July and November 2014 because he enjoyed that field and he hoped to be able to do the two courses concurrently. However, he decided that he did not like the graphic design as much as he had expected, so he discontinued.

20. Mr Truong told the Tribunal that he only worked as a tutor for four weeks in March 2014. He denied that he advised the Department that he had been self-supporting since November 2013 and said that he only taught three students. One was the niece of his landlord. He earned VND3million in the four weeks that he worked as a tutor. The Tribunal asked Mr Truong about the statements he reportedly made to the Department. He said that there had been a misunderstanding and also that he had not majored in physics.

21. His mother sent him VND4million when he was studying in the bachelor degree and when he finished that degree she reduced the amount to VND3million per month. His mother is currently sending him VND4million per month to support him to study. The money was sent via a driver and Mr Truong collected it from the driver at the bus depot in Ho Chi Minh City at the beginning of each month when his mother was living in Vietnam. He said that his mother has never transferred money through the bank and that he did not have an ATM card at the time.

22. Mr Truong denied that he told the Department he was self-employed; the phrase means “labour free”. The Tribunal asked Mr Truong if he had advised the Department that he receives some additional money from his mother. He said that in March 2014 she continued to send VND3million to him, but he asked his mother for permission to keep the money from tutoring for his personal use.

    Submissions by the review applicant’s migration agent

23. Mr Son’s migration agent said that the Tribunal should be cautious about placing undue weight on the file notes as the conversation had not been recorded and is only a summary of the responses that were provided. She said that there had been discrepancies and it is likely that there are errors in the summary made.

24. Ms Pham has always taken care of her son and supported him during his studies in Ho Chi Minh City. When she was in Vietnam, she was employed in a marketplace and also received financial support from the sponsor. It took the Department 18 months to eventually grant the visas, and there is no indication during that time that Mr Truong worked full-time or part-time. He has continued his studies in the master’s course.

    Information received after the hearing

25. After the hearing the review applicant’s migration agent provided a statement from Mr Truong’s landlord and documents regarding Ms Pham’s employment.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in the present case is whether Mr Truong is a member of the family unit of the primary visa applicant, Ms Pham.

27. Part 309 of Schedule 2 contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who has satisfied the primary criteria. Subclause 309.311 provides that at the time of application:

    309.311 The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

28. At the time of decision the secondary visa applicant must continue to be a member of the family unit of a person who has satisfied the primary criteria; cl.309.321. 

29. The term ‘member of the family unit’ is defined in r.1.12 as:

    Reg 1.12      Member of the family unit
    1.12      (1)      Subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
    (a)      a spouse of the family head; or
    (b)      a dependent child of the family head or of a spouse of the family head; or
    (c)      a dependent child of a dependent child of the family head or of a spouse of the family head; or
    [(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]
    (e)      a relative of the family head or of a spouse of the family head who:

    (i)      has never married or is widowed, divorced or separated; and
    (ii)      is usually resident in the family head's household; and
    (iii)      is dependent on the family head.

30. The term ‘dependent child’ is defined in r.1.03

    “dependent child”
    means the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married), being a child who:
    (a)      has not turned 18; or
    (b)      has turned 18 and:

    (i)      is dependent on that person; or
    (ii)      is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

31. The term ‘dependent’ is defined in r.1.05A;

    Reg 1.05A      Dependent
    1.05A      (1)      Subject to subregulation (2), a person (the "first person") is dependent on another person if:
    (a)      at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)      the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
    (b)      the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
    …

32. The term “child” as used in the definition of dependent child in r.1.03 has the familial “parent-child” meaning and the relationship must exist by blood, adoption or through a spousal relationship.  Natural children, adopted children and step-children of the family head or partner of the family head are, therefore, included in the term “dependent child”.

33. Regulation 1.05A prescribes clear objective criteria to be met for dependence to be established. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs: Huynh v MIMA [2006] FCAFC 122 at [28]. The Full Federal Court held in Huynh, that the words of the regulation, on their proper construction, do not carry with them any implication of there being a necessity to provide the relevant support. The question which the Regulations require to be addressed is whether as a matter of fact, the first person is relying for support on the other person: Huynh at [44].

34. Ms Pham has been found to meet the definition of “spouse” and is living in Australia. However, the delegate was not satisfied that the secondary visa applicant, Mr Truong, was a “dependent” of Ms Pham at the time of her decision.

35. The Tribunal finds that the primary applicant made a combined application for a Partner (Spouse)(Provisional) (Class UF) (Subclass 309) and a Spouse (Permanent) (Subclass 100) visa on 23 July 2010. That application was refused by the Department and Mr Son sought further review of the decision. On 8 November 2012 the Migration Review Tribunal (differently constituted) found that Ms Pham met the definition of spouse within the meaning of r.1.15A and she and three of her children were subsequently granted Subclass 309 visas. The Tribunal is satisfied that the primary applicant has been found to have satisfied the primary criteria for the Subclass 309 visa.

36. However, the delegate was not satisfied that Mr Truong met the requirements of cl.309.321 as she was not satisfied that he was a member of the family unit of Ms Pham for the visa as defined in r.1.12. As noted above, “members of the family unit” include dependent children of the family head or a spouse of the family head.

37. The Tribunal has considered whether Mr Truong meets the definition of “dependent child” as defined in Regulation 1.03.

38. Mr Truong is currently 24 years old. The Tribunal accepts on the basis of the evidence before it that Mr Truong is the natural child of Ms Pham and had turned 18 years at the date of application. The Tribunal also accepts that he made a combined application with Ms Pham for the grant of the visa.

39. As Mr Truong had turned 18 at the time of application he does not meet the definition of “dependent child” in r.1.03(a).

40. There is no information before it indicating, and the Tribunal is not satisfied, that Mr Truong is incapacitated for work due to the total or partial loss of his bodily or mental functions and he therefore does not meet the definition of “dependent child” in Regulation 1.03(b)(ii).

41. The remaining issue is whether Mr Truong, who is the natural child or the primary visa applicant, Ms Pham, is over the age of 18 years and is dependent on her so as to fall within the definition of “dependent child” in Regulation 1.03(b)(i).

42. “Dependent” is a term defined in Regulation 1.05A. A person is “dependent” on another person if at the relevant time the person is and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the persons basic needs for food, clothing and shelter and the reliance on the other person is greater than any reliance on any other person, or source of support for financial support or the person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to total or partial loss of the first person’s bodily or mental functions.

43. On the Form 47A signed by Mr Truong on 10 October 2013, he wrote that he was dependent on his family. In the written statement he signed on 15 March 2014, Mr Truong reportedly stated that he had been ‘self-employed’ since November 2013, although the translation of that phrase is disputed. The delegate contacted Mr Truong to clarify his self-employment 19 March 2014. During the telephone interview he is reported to have advised the delegate of the following (as set out in the Record of Decision):

    ·After graduating from university he remained in Ho Chi Minh City and had been working as a self-employed tutor;

    ·He had majored in physics and was teaching three classes with students from grades 7 to 10 and earned around VND3million per month;

    ·His accommodation cost VND500.000 and the remainder of his income was spent on food and clothing; and

    ·He sometimes receives money from his mother as additional money.

44. Mr Son’s migration agent denied that Mr Truong’s statement of 15 March 2014 says that he was self-employed, but rather that the correct interpretation was “Occupation: Labour free”. At the hearing the Vietnamese interpreter advised the Tribunal that the phrase could be interpreted in a number of ways. Given the lack of clarity regarding the meaning of the phrase used by Mr Truong in the statement he provided to the Department, the Tribunal places no weight on that document.

45. The Tribunal has considered the information that Mr Truong reportedly provided to the Department during a telephone interview on 19 March 2014, as set out in the Record of Decision. At the hearing the review applicant’s migration agent cautioned against relying on that evidence given the interview had not been recorded and was merely a summary of the conversation. However, given the level of detail that Mr Truong provided to the delegate and the spontaneity of his responses, the Tribunal considers the record of the conversation to be persuasive.

46. After the hearing the review applicant’s migration agent submitted further supporting evidence, including a translated statement by Mr Truong’s landlord, Ms Thi Trinh Nguyen, which asserted that Mr Truong tutored her niece and two other students for four weeks in March 2014 and was paid VND3million. Ms Nguyen stated that her niece was in Year 8 and the other students were in Years 7 and 10. That evidence was consistent with the oral evidence given at the hearing.

1. In the statement he provided to the Tribunal, Mr Truong denied that he stated that he had three tutoring classes of Year 7 to Year 10 students and that he received VND3million (approximately $180) per month for his tutoring when he was interviewed by the Department by telephone on 19 March 2014. He stated that the correct information is that he had three students for casual tutoring for eight sessions over a period of four weeks and that he received VND1million from each student. Mr Truong stated that the tutoring was one-off and that the income was used for his personal expenses; he continued to rely on his mother’s finances for accommodation, food and clothing.

2. The Tribunal has carefully considered the evidence before it regarding Mr Truong’s employment after his graduation and prefers the evidence recorded by the delegate during a telephone interview with Mr Truong on 19 March 2014, as set out in the Record of Decision. The Tribunal is not prepared to accept that Mr Truong would state that he has three classes and advise of his monthly income and expenses if the tutoring was indeed for a niece of his landlord and two of her friends as later claimed. The review applicant, Ms Pham and Mr Truong have asserted that Mr Truong’s employment was temporary and relatively insignificant. However, the Tribunal does not accept that Mr Truong would fail to mention that the employment was done as a favour for his landlord during the telephone interview with the Department if that were indeed the case. The Tribunal has taken into account the statement by Ms Nguyen, but did not find that evidence convincing. Overall, the Tribunal did not find the explanation provided for Mr Truong’s comments to the delegate to be credible. Nonetheless, the Tribunal is satisfied that Mr Truong’s tutoring of three classes amounted to part-time employment. The Tribunal finds that Mr Truong commenced the tutoring work in November 2013, as he advised the delegate, rather than March 2014 as later claimed.

3. The review applicant’s migration agent provided documents to the Tribunal regarding Mr Truong’s studies after the completion of his Bachelor of Science degree in October 2013. In her statutory declaration, Ms Pham stated that Mr Truong remained in Ho Chi Minh City to prepare for his entrance exams for his master’s course which was to be held in October 2014. She said that he studied English and also graphic design and that she financially supported him during that period. The Tribunal did not find the evidence regarding Mr Truong’s decision to enrol in a two-year graphic design course in July 2014 to be convincing in light of his stated plans to undertake a Master of Science (Materials) in October 2014. Mr Truong’s evidence that he intended to study both courses simultaneously was not plausible. In his statement provided to the Tribunal, Mr Truong said that he spoke with his mother in October 2013 and said that he wanted to take a short break from his studies before he sat for the entrance exams for his master’s course in 2014. He said that he wanted to revise his English skills and also the work he had undertaken during his bachelor degree. Mr Truong stated that the first entrance exam for his area of study was not offered until October 2014. Mr Truong said that he was required to attend an English language skills course in August 2014 and that he achieved the required mark for the English component of the master’s degree. Mr Truong asserted that his mother had continued to pay for all of his tuition and living expenses after he graduated in October 2013.

4. Copies of financial transfers have been provided to the Tribunal from Ms Pham to Mr Truong. The Tribunal accepts that Ms Pham has provided ongoing financial support to Mr Truong to assist him with his university studies since he commenced the Bachelor of Science degree in September 2009. The Tribunal accepts that Mr Truong studied graphic design for a brief period in 2014. He also undertook an English language course in around August 2014. The Tribunal accepts that Mr Truong was studying for his entrance exam for the Master of Science degree and also did some intermittent study after he graduated from the Bachelor of Science degree in October 2013.  However, the Tribunal is not prepared to accept that Mr Truong was a full-time student between October 2013 and November 2014. The Tribunal finds on the basis of the evidence before it, including the translated copy of his student card provided, that Mr Truong has been studying in a Master of Science degree on a full-time basis since December 2014.

5. As noted above, r.1.05A stipulates that the person must be wholly or substantially reliant upon the other person at the relevant time and for a substantial period immediately before the relevant time. For example, if the definition of ‘dependent’ arises in relation to a time of application criterion in a visa subclass, then the applicant must be dependent on the relevant person at the time of application and for a ‘substantial period’ immediately before the visa application. In this case, there is also a requirement that the applicant be dependent on the relevant person for a ‘substantial period’ at the time of decision. Consequently, the Tribunal must also consider whether Mr Truong was dependent upon Ms Pham for a ‘substantial period’ immediately before its decision.

6. There is no definition in the Regulations of what constitutes a ‘substantial period’, but in the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period  (Huang v MIMA [2007] FMCA 720). Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months. While the Tribunal may have regard to Departmental policy, it is not binding on the Tribunal. The Tribunal is required to consider the individual circumstances of the case. In Zeng v MIMIA ([2005] FMCA 546) the following factors were identified as relevant to the consideration of whether the dependence was for a “substantial period”:

   ·  The actual period of dependence;

   ·  The reason for the dependence; and

   ·  The extent or nature of the dependence.

7. Departmental guidelines provide that full-time students completing their first major, undergraduate qualification may be considered ‘wholly or substantially reliant’ on their parents, even if they are working part-time or receiving a scholarship, provided they are otherwise financially reliant on their parents and have been in continuous full-time study since high school. The guidelines state that students in other circumstances, such as postgraduate students, should be carefully assessed against the criteria in r.1.05A. As noted above, Departmental policy is not binding on the Tribunal.

8. Mr Truong was 19 years of age when the application was lodged in July 2010. There is no evidence before the Tribunal to indicate that Mr Truong’s father, or any other person, has provided him with any financial support to assist him with his high school or undergraduate studies. The Tribunal is satisfied on the basis of the oral evidence provided at the hearing, the copies of money transfer receipts from the review applicant to Ms Pham and the statement by Mr Dinh Khang Do, that Ms Pham provided regular financial support to Mr Truong to enable him to pursue his studies in Ho Chi Min City from September 2009. Ms Pham was employed at a market and also received monies from the review applicant at the time of application. The Tribunal finds that Mr Truong was a full-time undergraduate university student at the time of application, as evidenced by the certified copy of his academic transcript, and that he commenced his university studies in September 2009. Prior to September 2009, Mr Truong was a full-time high school student. The Tribunal accepts on the basis of the oral and documentary evidence before it that Mr Truong was wholly or substantially reliant upon Ms Pham for financial support to meet his basic needs for food, clothing and shelter at the time of application. The oral and documentary evidence about the level of financial support that Ms Pham was providing to Mr Truong at the time of application has been consistent throughout the review process. The Tribunal has considered the Departmental policy and has decided to follow that policy in determining the timeframe to be considered a substantial period. The Tribunal is satisfied on the basis of the evidence before it that Mr Truong had been wholly or substantially reliant upon Ms Pham for a substantial period (of at least 12 months) prior to the date that the application was lodged. The Tribunal finds that Mr Truong’s reliance on Ms Pham was greater than his reliance on any other person or source of support.

9. The Tribunal accepts that Mr Truong undertook some studies in graphic arts and English in mid-2014. However, as discussed above, it is not prepared to accept that he was a full-time student between October 2013 and November 2014 as claimed. The Tribunal finds on the basis of Mr Truong’s statements to the delegate that he was earning sufficient income from his employment as a part-time tutor after he graduated from his science degree to support himself for a period of at least four months between November 2013 and March 2014. The Tribunal accepts that Ms Pham continued to send money to Mr Truong during that period, but finds that this was to supplement his income from employment.

10. The Tribunal is satisfied on the evidence before it, including the oral evidence at the hearing and the translated copy of his student card, that Mr Truong resumed his full-time university studies in December 2014. The Tribunal has had regard to the evidence that Mr Truong has now been studying in the Master of Science degree for approximately 10 months. The Tribunal has considered all of Mr Truong’s circumstances, including his break from full-time studies and that he was able to support himself financially for a period of at least four months between November 2013 and March 2014. There is no evidence before the Tribunal to indicate that Mr Truong’s part-time employment as a tutor continued beyond March 2014. The Tribunal finds on the basis of the oral evidence at the hearing and the supporting documentation provided, including the copies of money transfer receipts and evidence of Ms Pham’s employment, that Ms Pham has been financially supporting Mr Truong since March 2014 while he prepared for the master’s entrance exam and undertook some short courses.

11. After considering all of the above, the Tribunal is satisfied that at the time of decision Mr Truong is wholly or substantially reliant on Ms Pham for financial support to meet his basic needs for food, clothing and shelter. The Tribunal accepts that Ms Pham has been transferring money to Mr Truong since she arrived in Australia, as evidenced by the receipts provided. As discussed above, the Tribunal has decided to follow the Departmental policy in determining the timeframe to be considered a substantial period. The Tribunal finds that Mr Truong was wholly or substantially reliant on Ms Pham for financial support to meet his basic needs for food, clothing and shelter for a substantial period (of at least 12 months) prior to this decision. The Tribunal finds that at the time of decision Mr Truong’s reliance on Ms Pham is greater than his reliance on any other person or source of support.

12. Consequently, the Tribunal finds that Mr Truong continues to be a member of the family unit of Ms Pham who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa.

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

14. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    · cl.309.311 of Schedule 2 to the Regulations; and

    · cl.309.321(a) of Schedule 2 to the Regulations

    Glynis Bartley
    Member