1507767 (Migration)

[2015] AATA 3595

1507767 (Migration) [2015] AATA 3595 (4 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dale George Noble

VISA APPLICANT:  Mr Tien Anh Phi Voong

CASE NUMBER:  1507767

DIBP REFERENCE(S):  2014027594

MEMBER:Kate Millar

DATE:4 November 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

· cl.445.211 of Schedule 2 to the Regulations;

· cl.445.222 of Schedule 2 to the Regulations.

Statement made on 04 November 2015 at 10:03am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Noble, an Australian citizen, is the spouse of Ms Thi Mong Thu Nguyen who is a citizen of Vietnam. Ms Nguyen holds a temporary spouse visa and wants her son, Tien Anh Phi Voong to come to Australia. Phi applied for an Extended Eligibility (Temporary) (Class TK) visa on 21 May 2014, and his application was refused by a delegate of the Minister for Immigration and Border Protection under s.65 of the Migration Act 1958 (the Act). 

2. The visa Phi seeks is a Subclass 445 Visa, which is the only subclass of the Extended Eligibility (Temporary) (Class TK) visa. A subclass 445 visa is a temporary visa for a child or stepchild of a parent who holds a temporary partner visa and has not yet been granted a permanent partner visa. To be eligible for this type of visa Phi must meet the primary criteria in Part 445 of Schedule 2 of the Migration Regulations 1994. The criteria include cl.445.211 which states an applicant must be a dependent child of the visa-holding parent and sponsored by the sponsor of the visa-holding parent, and cl.445.221 which requires that at the time of the decision, the applicant continues to be a dependent child of the visa holding parent. The term ‘dependent’ is defined in the Regulations. The delegate found Phi was not dependent on Ms Nguyen as defined by the Regulations and did not meet the criteria for the grant of the visa at the time of the decision..

3. Mr Noble appeared before the Tribunal on 3 November 2015, and was represented by his registered migration agent.  The Tribunal also heard from Ms Nguyen and Phi.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Ms Nguyen is listed as Phi’s mother in the birth certificate provided to the Department, and I find Phi is Ms Nguyen’s son.

6. The term “visa holding parent” is defined in cl.445.111.  This states that the child's parent must hold (among others) a subclass 820 visa.  Ms Nguyen holds a subclass 820 visa. 

7. Mr Noble is Ms Nguyen’s husband and sponsor and is also Phi’s sponsor. 

   Is Phi a dependent child of Ms Nguyen?

8. The term “dependent child” is defined in r.1.03 as being (among other things) the natural child of a person other than a child who is engaged to be married, or has a spouse or defacto partner.  Phi identifies as single, and his identification documents identify him as single. 

9. Where the child has turned 18 years of age, the child must be dependent on the person as defined by the regulations.  At the time of the visa application, Phi was 20 years of age and must be single and meet the definition of dependent to meet the requirements of clauses 445.211 and 445.221. 

10. The term “dependent” has the meaning given by regulation 1.05A:

    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) …

11. All of those who gave evidence said that Phi lives with his aunt Hong who meets his day to day financial needs.  Ms Nguyen says she then repays Hong the money for the support of Ph,i or gives money to her niece, Hong’s daughter, who is studying in Australia. She says Hong tells her when she owes money, and “probably” records her expenditure, but she has not seen any records.  She said it is a matter of trust between sisters.  All parties states Phi does not receive any financial support with his father. 

12. Hong provided a statement dated 5 August 2014 in which she said that Ms Nguyen transfers money to her daughter’s account in Australia for the support of Phi to avoid transfer fees, and that Mrs Nguyen pays for Phi’s study, living and shopping expenses.  A separate interview the Department conducted with Phi also says this is the arrangement for the transfer of money.  Phi says that his aunt spends money from his mother on food.  He says his aunt covers his accommodation costs and his clothes are bought from money his mother sends his aunt.

13. A later statement from Hong dated 19 December 2014 states Ms Nguyen has not sent money for Phi recently and Phi has had to leave school as she is in financial difficulty. 

14. In an interview with Hong on 3 March 2015, which is contained in the decision record provided by the applicant, Hong told the Department Ms Nguyen had not sent her money for Phi’s expenses for about eleven months and that she was currently covering his expenses including his food and clothing.  In a further interview on 22 May 2015, also contained in the decision record, Hong says Ms Nguyen was still not providing financial support and has not repaid any money she had spent in the last 12 months.  She said she keeps a record of what is spent in case Ms Nguyen can repay her. 

15. Ms Nguyen said she had not provided financial support for Phi for a period of time as she was unable to work after having surgery on her elbow and then on her finger, but that when Hong came to Australia in June 2015, she repaid her $3,000 for supporting Phi.  On being asked how she worked out what to pay Hong, she said Hong keeps a record of Phi’s expenses. 

16. Ms Nguyen provided evidence of money transfers to her niece between October 2013 and January 2014 of approximately $4,520 and one to her brother in 2012 of $400.  She provided a copy of her bank statement that she says shows a withdrawal which as recorded as being for the support of Phi of $3,100 in June 2015 and a transfer to her sister Hong on 23 August 2015 for $500.

17. Mr Noble is on an age pension, and he and Ms Nguyen rely on his pension to meets bills and daily expenses.  He says Ms Nguyen works part time but was unable to specify how much she earned.  HIs pension goes into an account in his own name from which he pays the bills.  They rent from Housing SA and the rent is $98 per week.  His income from the age pension is $806 per fortnight.  He says Ms Nguyen manages her own money. 

18. Ms Nguyen was unable to work for a period because she had surgery on her elbow, and then on her finger which was severed.  She had to pay for the surgery to her elbow, however Mr Noble said the surgery to her finger was paid for my Medicare.  She says she paid for the surgery using money she had for her son’s education.  Mr Nobel said she borrowed it from a sister who lives in Australia.  Ms Nguyen denied borrowing money from any relatives in Australia.  Mr Noble also said she borrowed the money to return to Vietnam when her father died.  Ms Nguyen said her sister paid half and she paid half.

19. Overall, Mr Noble did not appear to have any depth of understanding of Mrs Nguyen’s affairs.  He did not know how much she was paid.  He said he thought Phi was 26 years old when he is 21 years old.  He said he did not realise until Ms Nguyen told him on the way to the hearing that she owed her sister $3,000 for Phi’s costs.  He said that Ms Nguyen borrowed money from a sister who lives in Australia for the surgery on her elbow and to return to Vietnam for her father’s funeral.  He said the sisters work it out between themselves for the support of the children.  Given Mr Noble’s lack of detailed knowledge of Ms Nguyen’s finances and family arrangements, I did not consider his evidence to assist me in deciding this matter. 

20. On balance, I accept that Ms Nguyen meets Phi’s costs for food, clothing and a proportion of utility costs, but not his accommodation which is met by his aunt.  While there was a period she did not provide financial support for Phi as she could not work following surgery to her elbow, it was expected she would repay her sister for his costs as shown by the interview with Hong in which she says she keeps a note of his expenses.  This is in effect a loan from her sister for the period of time for the support of Phi.  As such, I find Ms Nguyen remained responsible for Phi’s food and clothing and a proportion of the accommodation costs that relate to utilities. 

21. I find that at the time of application and at the time of the decision, Phi was substantially reliant on Ms Nguyen for financial support to meet his basic needs of food, clothing and shelter and his reliance on her was greater than his reliance on any other person or source of support to meet his basic needs of food, clothing or shelter. 

22. As a result, I find Phi met cl.445.211 at the time of the application and cl.445.221 at the time of this decision.  As a result, the matter is remitted to the Minster to consider the remaining criteria for the grant of the visa. 

    DECISION

23. The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

    ·cl.445.211 of Schedule 2 to the Regulations;

    ·cl.445.222 of Schedule 2 to the Regulations.

    Kate Millar
    Member