1501374 (Migration)

[2016] AATA 3337

1501374 (Migration) [2016] AATA 3337 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Huynh Quang Lu

VISA APPLICANTS:  
Mr Quoc Quang Trinh
Mr Quoc Vinh Trinh

CASE NUMBER:  1501374

DIBP REFERENCE(S):  OSF2014/100097, OSF2014/026308

MEMBER:Catherine Carney-Orsborn

DATE:23 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 23 February 2016 at 2:22pm

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 26 November 2014 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 25 February 2014 on the basis of their relationship with their sponsor, the review applicant. 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.311 and cl.309.321.

3. The delegate refused to grant the visa on the basis that the visa applicants did not satisfy cl.309.321 because the delegate was not satisfied that the visa applicants are dependent on their mother and therefore do not meet r.1.03(b)(i). .

4. The review applicant appeared before the Tribunal on 16 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants and the visa applicants’ mother.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicants are dependants of their mother and the review applicant.

8. A criterion to be satisfied at time of application is clause 309.311. This clause provides that the secondary visa applicants must be members of the family unit, and to have made a combined application, with a person who satisfies the primary criteria in subclause 309.21.

9. The visa applicants are the sons of the person who satisfied the primary criteria in subclause 309.211. A copy of the visa applicants’ birth certificates are on the Department’s file. Their details were included in their mother’s application and their application was made at the same time and place as their mother’s application, with a single application fee paid. The Tribunal finds that the visa applicants have made a combined application with their mother. Electronic records before the Tribunal show that the visa applicants’ mother has now been granted a Subclass 309 visa. She thus satisfied the primary criteria in subclause 309.211.

10. Regulation 1.12 defines the term ‘member of the family unit’. The only applicable clause in this case is r. 1.12(1). The visa applicants argue that they are the dependent children of their mother and thereby meet r. 1.12(1)(b). The Tribunal must determine whether the visa applicants were dependent on their mother, within the meaning of r. 1.05A, at the time of the application and also at time of decision, for the purpose of cl. 309.321.   The visa applicants were respectively aged twenty four and twenty two at the time of application.

11. There is no evidence before the Tribunal that the visa applicants are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Tribunal finds that the visa applicants do not meet r. 1.05A(1)(b).

12. The review applicant claims that his step-sons are fully dependent on him and the primary visa applicant (their mother). The review applicant and primary visa applicant claimed that this was the case.  They stated that the visa applicants were both full-time students.  High School reports were provided which show the first named visa applicant finished high school and was enrolled in community college and had a completion date of December 2013.  He stated in the application he had a thesis to complete before he could graduate and he provided a copy of a confirmation that he was enrolled and studying English as a second language in 2014. The second named visa applicant stated that he commenced study at the community college in September 2010.  He provided no finish date in relation to that course.

13. The visa applicants claim they were dependent on their mother, however, they presented very little documentary evidence to support their claim at the time of application.  

14. The review applicant provided to the Tribunal money transfer documents which show the review applicant sending $200AUD to himself and the visa applicants’ mother in September 2014 and $200AUD being sent to the younger son in December 2014 from the mother.  Further money transfer documents show similar amounts going to the visa applicants in 2015.    Prior to that there is only the review applicant’s assertion that he was providing financial support to the visa applicants. 

15. At the hearing the Tribunal asked the review applicant about the financial support he sends to the visa applicants.  He stated that he sent money.  The Tribunal asked what the source of this money was.  He stated that his children provided money to him.  The review applicant stated that he was on an old age pension.  The Tribunal queried why his children from his first marriage would provide money to support the children of his current spouse.  He stated that they provided money to him.  He stated they deposit cash into his account. The Tribunal asked if there was any evidence on his bank statements of such transfers.  He provided a bank card.  The card did not show any transactions to his account, it was simply a bank card.  He claimed that when he was in Vietnam he was sent money by cheque.  The Tribunal asked how long he had provided this money.  He replied about one year from the date of the hearing.  The date of the hearing was 16 February 2016.

16. The review applicant then said words to the effect that he had lived in Vietnam for two years and regularly provided money.  The Tribunal again asked if there was any record of that money.  None was provided.  Prior to the date of application there was evidence of one money transfer to the review applicant and his spouse.

17. He said that the visa applicants are both studying English at the moment.  He said that after school they had helped their mother in her business. 

18. He said that his wife (the visa applicants’ mother) was working in Australia at a noodle restaurant. No evidence such as tax returns were provided to substantiate this claim. The review applicant stated that the visa applicants’ father has not provided any financial support to the visa applicants.

19. The Tribunal put to the review applicant information, as set out in the Department’s decision and provided by independent third parties in Vietnam that the visa applicants were working and receiving VND3,000,000 per month. 

20. The review applicant denied that this was the case.  The Tribunal asked why those persons would give that information.  He replied they were jealous neighbours.  The Tribunal pointed out they were not neighbours.  He then stated that he has over ten persons in Australia and all are working and not taking social security.  He said the visa applicants would be able to work in Australia.

21. The visa applicants’ mother then gave evidence.  She came to Australia in 2015.  She said she was previously a food vendor in Vietnam.   She stated that she provided food for the visa applicants and they studied.

22. She said the first named visa applicant finished high school and then learned a trade at the community college until 2013.  She said he needs to complete one subject.  She said the second named visa applicant finished his course in 2014.  She said that she worked as a vendor to support the visa applicants and the review applicant also provided money to support them.  She claimed he gave them VND10,000,000 per month.  She said he can withdraw that amount with his card and that his children gave it to him. 

23. She said that when she was a vendor they assisted her.  The Tribunal asked why third parties would say they worked.  She replied that they saw them doing delivery jobs, however, they were doing those jobs to simply help her.  She said they are now 27 and 25 years of age and have never worked.

24. The Tribunal then took evidence from the first named visa applicant.  He said he was studying English and looking for work.  He said his mother sends him money every month.  He said she gets the money from his step-father.

25. The Tribunal asked who was keeping him at the time of application.  He replied his parents provided money. 

26. The second named visa applicant then gave evidence.  The Tribunal asked him if he had ever worked, he said he had not.  The Tribunal then put to him information outlined in the decision record and put to him by the Department at interview that he had worked.  He again said he had never worked.

27. He said he was currently studying English at night time.  The Tribunal asked what he did during the day.  He said he assisted the family in their business.  He said that his aunt is running the business his mother used to run.  The Tribunal asked if his aunt paid him.  He said that she gave him no money and he only relied on his mother’s money.

28. The Tribunal then asked the review applicant if he had anything he wanted to say in relation to the evidence.  He said that the visa applicants are living in Vietnam and their father is there but he is like no father.  He said that if he can sponsor them to come to Australia they could work and pay taxes.  He said that the aunt is poor and only sells buns and could not help support the visa applicants.  The Tribunal pointed out that this contradicts the evidence that the visa applicants’ mother had supported the visa applicants through the same business.  The representative put forward that the visa applicants’ mother had more business acumen than the aunt and a more successful business.

29. Information held on the Department’s file indicates that at the time of application the visa applicants were working and earning a monthly salary of VND3,000,000.  When this was put to the review applicant he said that the sources of the information were jealous neighbours.  The Tribunal pointed out that they were officials.  The review applicant continued to assert that they did not work.

30. At the time of application the only independent information was one money transfer showing $203.91AUD sent to the visa applicants’ mother by the sponsor in August 2014.  No other information was provided to show the review applicant was sending money to the visa applicants at the time of application.  The only independent information was provided after the date of the department’s decision.  There is no explanation as to why this could be provided after the date of decision in November 2014 and not before.

31. No information except the review applicant and visa applicants’ assertions were provided in relation to the visa applicant’s business selling buns and drinks and being able to financially support her adult sons. 

32. The information put to the visa applicants as set out in the Decision record is that the visa applicants were working and receiving VND3,000,000 per month.  Independent information as set out below indicates that this is around the average wage a person can earn in Vietnam.

    The average wage per person in Vietnam is around 3.2 million VND ($150) a month and differentiated by many factors.  Average Monthly Wages  2007-2016 | Data | Chart | Calendar     Wages in Vietnam decreased to 4458 VND Thousand/Month in the second quarter of 2015 from 4895 VND Thousand/Month in the first quarter of 2015. Wages in Vietnam averaged 3693.86 VND Thousand/Month from 2007 until 2015, reaching an all-time high of 4895 VND Thousand/Month in the first quarter of 2015 and a record low of 1399 VND Thousand/Month in the fourth quarter of 2007. Wages in Vietnam are reported by the General Statistics Office of Vietnam. >

    Identity information provided by the review applicant to the Department and held on the Department file indicates that the visa applicants continue to live in the family home in Vietnam and that the home was the home of their deceased grandparents and family members reside there.

33. The Tribunal is not satisfied that the visa applicants have been forthcoming in relation to whether they work for income.  The third party evidence was given by persons who have no interest in the application and no motive to mislead the Tribunal.

34. The Tribunal, after considering all the evidence including that they are only studying English at night part-time and the lack of any independent evidence of the review applicant or their mother providing financial assistance for their basic needs, is not satisfied that at the time of application the visa applicants’ reliance on the review applicant and primary visa applicant is greater than any reliance by them on any other person or source of support for financial support to meet their basic needs for food, clothing and shelter. The Tribunal is not satisfied that they meet r.1.05A(1)(a)(ii) and r. 1.05A.

35. For the reasons given above, the Tribunal finds the visa applicants do not satisfy the requirements of cl.309.311.

    DECISION

36. The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Catherine Carney-Orsborn
    Member

    
    

    Regulation 1.05A(1) offers the following definition of dependency:

    (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.