1502088 (Migration)

1502088 (Migration) [2016] AATA 4138 (18 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Kim Loan Tran
VISA APPLICANT:  Mr Anh Thi Le
CASE NUMBER:  1502088
DIBP REFERENCE(S):  OSF2013/028078
MEMBER:Alan Duri
DATE:18 July 2016
PLACE OF DECISION:  Sydney
DECISION:The tribunal remits the applications for Partner (Provisional) (Class UF) visas 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 of Schedule 2 to the Regulations.

Statement made on 18 July 2016 at 8:00am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Van Toan Le, a Vietnamese citizen married Ms Kim Loan Tran, an Australian citizen on 30 July 2013.
On 19 November 2013 Mr Le applied for a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act) on the basis of his marriage to Ms Tran. Mr Le included his three children in the visa application, including his son Anh Thi Le, born 25 January 1991.
On 7 January 2015 the delegate refused to grant the secondary applicant Mr Anh Thi Le a visa on the basis that cl.309.321 of Schedule 2 to the Regulations was not satisfied. In particular the delegate was not satisfied that Mr Anh Thi Le was a dependent child of his father.
Hearing
The review applicant Ms Tran appeared by phone before the tribunal on 31 March 2016 to give evidence and present arguments. The tribunal also received oral evidence from Anh Thi Le and Mr Van Toan Le. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Ms Tran was represented by her registered migration agent Ms My Yen Tran.
Before the hearing the tribunal received a variety of material that where relevant will be referred to below.
Ms Tran’s evidence
Ms Tran told the tribunal that she first met her stepson Mr Anh Thi Le in January 2012 when she went to Vietnam. As far as she recalls he was totally dependent on his father Mr Van Toan Le. At the time Mr Anh Thi Le was studying medicine and he was travelling backwards and forwards to his home town in Tra Vinh. Ms Tran indicated that Mr Anh Thi Le is currently being supported by remittances from his father Mr Van Toan Le.
Mr Anh Thi Le’s evidence
Mr Anh Thi Le told the tribunal that he is single and he is in good health. He is currently living in Saigon in a share household. He stated that his rent is about 1½ million dong per month and that his food and clothing cost about 3 million dong per month. He stated that his father sends him about 4½ million dong per month. Mr Anh Thi Le stated that he has no knowledge of his biological mother’s whereabouts. He also indicated that no other relatives provide him with financial support.
The tribunal asked Mr Anh Thi Le about his education. He stated that he completed high school when he was 18 in 2009. At the time he was living in Tra Binh. From July 2009 until July 2011 he was studying an automotive course in Tra Binh. However he never completed the course. At the time he was living with his father. In December 2011 he moved to Saigon and undertook another automotive course at the In situ of Pedagogical Technology and completed a course in June 2013. He completed the course but has lost the certificate. When he moved to Saigon he lived with his father’s cousin. After June 2013 he undertook an IT course which was originally meant to last until September 2016. However in December 2015 he switched to study medicine.
The tribunal noted the record of interview in the department’s file. Mr Anh Thi Le indicated that the contents of the interview record not totally true. He stated that he did attend his cousin’s automobile repair shop from “time to time” to learn about the profession. However he denied being employed at the shop. Indicated that his cousin sometimes gave him 50,000 dong for lunch.
Mr Anh Thi Le told the tribunal that when living in Saigon he was supported by money that his father sent him.
Mr Van Toan Le’s evidence
Mr Van Toan Le told the tribunal that he came to Australia on 28 January 2015. Up until then he been living in Tra Binh and was a cattle farmer. Mr Van Toan Le told the tribunal that when his son was living with his cousin in Saigon he used to send 500,000 dong every month for his expenses. Mr Van Loan Le told the tribunal that he now sends his son 4½ million dong per month for his living expenses.
Response/comments to information
On 27 April 2016 the tribunal sent Ms Tran a letter under s.359A of the Act inviting her to comment on respond to information, including in particular the contents of the departmental interview.
On 19 May 2016 the tribunal received a response by way of a submission and various other documents. Ms Tran’s response has been taken into account in reaching this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The available evidence indicates that Mr Anh Thi Le was born on 25 January 1991 and he is the biological child of Mr Van Le. Mr Le was included as a secondary applicant on Mr Van Le’s partner visa application.
The question before the tribunal is whether the secondary applicant Mr Le is a dependent child of Mr Le.
Clause 309.311 provides that at the time of the visa application a secondary 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”.
Clause 309.321 provides that at the time of decision:
309.321
The applicant:
(a) continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria );……..
The term “member of the family unit” is defined in r.1.12 and relevantly includes a dependent child, which in turn is defined in r.1.03:
"dependent child " , of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), 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.
As Anh Thi Le was over 18 at the time of the visa application and as there is no evidence that he is incapacitated for work, he must satisfy the dependency test in r.1.105A:
Dependent
(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……………
Subregulation (2) is not applicable in this case.
Mr Le claims that he is and has been all his life fully financially dependent on his father. Mr Le claims that he has never received financial support from other relatives. He also gave evidence that he has never been gainfully employed. All the witnesses at the hearing gave consistent evidence concerning Mr Le’s financial dependency on his father. The tribunal was also provided with remittance advices corroborating the oral evidence.
On the other hand Mr Le provided information at a departmental interview on 24 February 2014 that at face value contradicts his claims. Mr Le was reported to have told the department that throughout 2012 he was employed as a mechanic and earned 50,000 dong per day plus free accommodation. However Mr Le told that the department’s record of interview was inaccurate and that while a full time student he sometimes attended his cousin’s workshop was occasionally given 50,000 dong for lunch.
There is no evidence or suggestion that as at the time of decision Mr Le has any financial support from any sources apart from his father.
The visa application was lodged 19 November 2013 and the disputed employment occurred throughout 2012. There is no suggestion that Mr Le was working as at the time of the visa application. However the financial dependency test effectively requires that the financial reliance must have been for a substantial period before the visa application. The term “substantial period” is not defined in the Regulations. The tribunal considers that the length of a substantial period will depend on the facts of the case. In this case the tribunal thinks it is appropriate for the substantial period to encompass the two years before the visa application. Therefore Mr Le’s possible financial support from employment is a relevant consideration.
It is common ground that Mr Le was remunerated for his assistance at the mechanic workshop throughout 2012. The question in this case boils down to the extent of the remuneration. Mr Le claims that he was either misquoted or misunderstood during the 24 February 2014 interview. While the tribunal is cognisant that Mr Le’s current evidence is self serving, the tribunal accepts that there can be misunderstandings in an interview. The tribunal also notes that there is no contemporaneous evidence of the employment such as payslips. Therefore the level of Mr Le’s remuneration relies on his own evidence. The tribunal is prepared to give benefit of the doubt and accept Mr Le’s evidence that the work and subsequent remuneration was periodic. Given that he had some income from work, it cannot be said that Mr Le was wholly financially reliant on his father for food clothing and shelter during the relevant period. However the tribunal is prepared to accept that any remuneration received by Mr Le during the period was not particularly significant. Therefore the tribunal finds that at the time of the visa application and time of decision Mr Le was substantially reliant on his father for financial support to meet his basic needs for food, clothing and shelter. The tribunal further finds the reliance is greater than any reliance by Mr Le on any other person, or source of support, for financial support to meet his basic needs.
It follows that Mr Le was at the time of application and time of decision a dependent child of Mr Van Le. Therefore Mr Le is a member of Mr Van Le’s family unit.
This means that Mr Le satisfies cl.309.311 and cl.309.321.
DECISION
The tribunal remits the applications for Partner (Provisional) (Class UF) visas 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 of Schedule 2 to the Regulations.
Alan Duri
Member

[2016] AATA 4138

18 July 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Reliance

Natural Justice