1502167 (Migration)

[2016] AATA 3035

1502167 (Migration) [2016] AATA 3035 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Duc Loc Dao

VISA APPLICANT:  Mr Duy Thanh Dao

CASE NUMBER:  1502167

DIBP REFERENCE(S):  OSF2012/094661

MEMBER:Glynis Bartley

DATE:15 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·   cl.143.311 of Schedule 2 to the Regulations; and

·   cl.143.321 of Schedule 2 to the Regulations.

Statement made on 15 January 2016 at 2:10pm

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 Duy Thanh Dao, a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant, Ms Thi Bich Ngoc Vu, applied for the visa on 11 December 2012. Mr Duy Thanh Dao, who is Ms Vu’s son, was included in the application as a secondary applicant.

3. Ms Vu’s application was granted on 11 March 2015 and she travelled to Australia on 1 May 2015. The delegate refused to grant the visa to Mr Dao on 28 January 2015 on the basis that he did not satisfy cl.143.311 of Schedule 2 to the Regulations. The delegate noted that, other than a completed dependency questionnaire, no evidence had been provided to demonstrate financial dependency. The delegate was not satisfied on the basis of the evidence submitted that Mr Dao was a dependent on Ms Vu.

4. Mr Dao remains in Vietnam with father, Mr Giang Dao. 

5. On 12 February 2015 the review applicant, Mr Duc Loc Dao, who is the visa applicant’s brother and the sponsor of Ms Vu’s application, applied to this Tribunal for review of the delegate’s decision.

6. Mr Duc Loc Dao appeared before the Tribunal on 11 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Vu and Mr Duy Thanh Dao. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.

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

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

   TRIBUNAL HEARING

   Review applicant’s evidence

9. Mr Duc Loc Dao told the Tribunal that his brother is living with their father in their parents’ home in Vietnam. Their father retired many years ago due to poor health. He worked in the manufacturing industry in this caused problems to his lungs and liver. Their mother is sending money to Vietnam to support his father and brother.

10. Ms Vu owned a small electrical equipment business in Vietnam, which she sold before she came to Australia. His mother sends money to Vietnam regularly, but he does not know how much.  His brother never worked in his mother’s business.

11. Mr Duy Thanh Dao was studying to be an electrician at college, but finished that course in September 2014 and began studying English. The Tribunal noted that the documents provided show that Mr Duy Thanh Dao ceased his studies as an electrician in 2013. Mr Duc Loc Dao said that that is not correct. His brother finished the course in 2014 after he failed. He stopped studying in mid-2014 as he found the course too difficult. He now attends a small English school near their home. Mr Duc Loc Dao said that he is not sure if his brother is studying full-time. Mr Duy Thanh Dao Has not worked at all since he finished school, which is not uncommon in Vietnam given his age.

    Ms Vu’s evidence

12. Ms Vu said that before she migrated to Australia she supported Mr Duy Thanh Dao and her husband from the income she generated from her business in Vietnam. Since arriving in Australia, Ms Vu has been sending money back each month. Mr Duy Thanh Dao does not have any health problems or disabilities. He is not engaged and does not have a de facto partner. Mr Duy Thanh Dao does not have any income of his own.

13. Mr Duy Thanh Dao’s English course is an open-ended course, but he expects that he will receive a certificate when he completes it.

14. Ms Vu told the Tribunal that her husband and son live in Vietnam together. Her husband has significant health issues and also family matters to attend to in Vietnam. They have postponed his application for a later date. Her husband is not working because of his various health issues. He worked with toxic substances and stopped working 20 years ago because his work affected his health.

15. Before she came to Australia, Ms Vu owned a small electrical stall at a market. She sold that business before she came. She sold power points, light bulbs and electrical wires. Mr Duy Thanh Dao never worked in her business. Ms Vu said she earned just enough from the business to meet the living expenses for the three members of the household. Her income was the only income coming into the household. She paid for all of Mr Duy Thanh Dao’s food, clothing and shelter. They provided receipts for tuition fees to the Department, but they were not received.

16. Vietnam runs on a cash economy and receipts are not given for purchases. No tax is declared when someone is running a business. She has some receipts for costs associated with their accommodation, but they are for small amounts. Mr Duy Thanh Dao has always lived with her and he is continuing to study. In his spare time he helps his father prepare food.

17. Ms Vu is now employed selling Pho at the open markets. She came to Australia in May 2015 and has been sending VND 10 million to her husband and Mr Duy Thanh Dao on a monthly basis since she arrived. She also sends money to Mr Duy Thanh Dao to pay for his tuition fees, which are VND 3.2 million per term. His fees have to be paid every three months.

18. Mr Duy Thanh Dao started a course to become an electrician in 2011. He passed the first two years of the course, but failed several subjects a number of times and became discouraged in the final year. Ms Vu told him to study English, so he stopped studying in June 2014 and started his English course in September 2014. Mr Duy Thanh Dao did nothing between June and September 2014. Ms Vu also paid for his uniforms and the other requirements of his study. The purpose of his English study is to master English so when he comes to Australia he can continue to pursue his electrician course. Mr Duy Thanh Dao studies three evenings per week from 7 to 10 pm. During the day he revises his English and prepares meals. Mr Duy Thanh Dao has not done any work at all since he left school.

    Mr Duy Thanh Dao’s evidence

19. Mr Duy Thanh Dao told the Tribunal that he is living with his father and studying English. He has not done any work since he finished high school. He began the electrical course in September 2011 and was supposed to finish in 2014. He passed successfully in the first and second years, but at the start of the third year was having difficulty. His mother advised him to stop and begin to study English. Mr Duy Thanh Dao said that he ceased the electrical course in September 2013 and began studying English in September 2014. He attends classes three nights a week from 7 to 10 pm. Between September 2013 and September 2014 he rested at home and revised his studies. He also did exercises and went out a bit.

20. Mr Duy Thanh Dao said that he was not working because he has not completed his studies and it is difficult to find work. He intended to pursue his studies. Mr Duy Thanh Dao said that his mother has been supporting him and that when she left Vietnam she left some savings from her employment. She sends money every month to his father and his father gives him money for food and clothing as necessary. Mr Duy Thanh Dao said that he has no health problems and is single. He wants to come to Australia to pursue his studies and find work.

    Information received after the hearing

21. After the hearing, on 4 and 11 January 2016, the review applicant’s migration agent provided additional information including but not limited to the following:

    ·A statement by the visa applicant in which said that he actually ceased his electrician’s course in 2014, not 2013;

    ·Education fee receipts;

    ·Household book;

    ·A tax receipt;

    ·A Certificate of the right to use land; and

    ·Written submissions by the review applicant’s migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in the present case is whether Mr Duy Thanh Dao satisfies the secondary criteria for a Subclass 143 visa.

23. The criteria for a secondary applicant are set out in cl.143.3. Relevantly cl.143.311 and cl.143.321 provide that at the time of application and time of decision the applicant must be a ‘member of the family unit’ of the person who satisfies the primary criteria.

24. Regulation 1.12 provides the definition of a ‘member of a family unit’:

    Member of the family unit

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and 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 or de facto partner of the family head; or
    (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or
    (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and

    (ii)  is usually resident in the family head's household; and

    (iii)  is dependent on the family head...

25. 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.

26. 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.
    …

27. 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”.

28. 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].

29. Mr Duy Thanh Dao is currently 22 years old. There is no evidence or suggestion that he is married, engaged or in a de facto relationship. The Tribunal accepts on the basis of the evidence before it that Mr Duy Thanh Dao is the natural child of Ms Vu and had turned 18 years at the date of application. The Tribunal also accepts that he made a combined application with Ms Vu for the grant of the visa.

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

31. There is no information before it indicating, and the Tribunal is not satisfied, that Mr Duy Thanh Dao 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 r.1.03(b)(ii).

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

33. The visa application was lodged on 11 December 2012. The Tribunal accepts that at that time Mr Duy Thanh Dao was living with his parents in Hai Phong, Vietnam. Mr Duy Thanh Dao’s father had retired due to ill health and his mother, Ms Vu, ran a small electrical supplies stall at a market. It was asserted that Mr Duy Thanh Dao was studying to become an electrician and financial support for all of his needs was being met by his mother. Evidence has been provided to support that Mr Duy Thanh Dao was a student at the time of application. Mr Duy Thanh Dao completed a dependency questionnaire, but no other evidence was provided to the Department to support the claim of dependency. Prior to and after the hearing the review applicant’s migration agent provided some documents regarding the property that Mr Duy Thanh Dao and his father live in, as well as receipts for education expenses and money transfers from Ms Vu. Ms Vu gave evidence that they do not have receipts for clothing and food because Vietnam operates on a cash economy. The Tribunal found that evidence persuasive.

34. At the time of decision Mr Duy Thanh Dao had stopped studying to become an electrician because he failed his course. There was inconsistent evidence about when he stopped studying; September 2013 or September 2014. The translated and certified Academic Result transcript from his college states that he last studied in September 2013 and the Tribunal prefers that evidence as it considers it more reliable. However, unlike some other visas, there is no requirement that Mr Duy Thanh Dao be a full-time student.

35. There was consistent evidence before the Tribunal that Mr Duy Thanh Dao has been studying English since June 2014. Receipts for education fees were provided in support of this. The course has been described as ‘open ended’, but Mr Duy Thanh Dao apparently expects to receive a certificate when he completes his studies.

36. Although there is limited independent evidence concerning Mr Duy Thanh Dao’s financial support, it is difficult to see what documents Ms Vu could provide beyond those she has submitted to the Tribunal. Consequently, the Tribunal must rely on the credibility of Mr Duc Loc Dao, Ms Vu and Mr Duy Thanh Dao at the hearing and consider the consistency and reliability of the evidence as a whole. The Tribunal is mindful that Mr Duc Loc Dao’s visa was refused by the Department due to a lack of evidence, rather than any adverse finding of credibility or due to conflicting information. The only significant inconsistency in the evidence before the Tribunal is the date that Mr Duy Thanh Dao ceased studying to become an electrician. Regardless, the Tribunal accepts that he is now studying English on a part-time basis three evenings per week. There is no information before the Tribunal to indicate that Mr Duy Thanh Dao has ever worked. Mr Duc Loc Dao’s oral evidence about this was given in an open and straightforward manner and the Tribunal has placed some weight on that. There was consistent evidence that Mr Duy Thanh Dao had never helped his mother to operate her electrical supplies business. The Tribunal has some doubts about this given such businesses generally rely on family members to be profitable, but Mr Duy Thanh Dao and his family all denied that he has ever worked in any capacity and there is no evidence to the contrary.

37. The Tribunal accepts on the basis of the oral evidence at the hearing and the remittances provided that Ms Vu has been sending money to her husband and son in Vietnam since she arrived in Australia. She has some income from her employment selling Pho at a market place. The Tribunal accepts that Mr Duy Thanh Dao has never worked and has been fully financially supported by his mother since his father retired some years ago due to ill health.

38. The Tribunal concludes that Mr Duy Thanh Dao was a member of Ms Vu’s family unit at the time of the visa application and remains so at the time of decision. It follows that Mr Duy Thanh Dao satisfies cl.143.311 and cl.143.321.

    DECISION

39. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·cl.143.311 of Schedule 2 to the Regulations; and

    ·cl.143.321 of Schedule 2 to the Regulations.

    Glynis Bartley
    Member