1508854 (Migration)

[2016] AATA 3716

1508854 (Migration) [2016] AATA 3716 (7 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Nga Nguyen

VISA APPLICANT:  Miss Phuong Thao Dao 

CASE NUMBER:  1508854

DIBP REFERENCE(S):  2014036334

MEMBER:Glynis Bartley

DATE:7 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa. 

Statement made on 7 April 2016 at 4:10pm

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, Miss Phuong Thao Dao, an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Dao was born in Vietnam in 1982 and is 33 years of age. She applied for the visa on 27 November 2014. The delegate refused to grant the visa on 23 June 2015 on the basis that Miss Dao did not meet cl.445.211 because she was not a dependent child of a visa-holding parent, Mr Tien Loc Dao. A copy of the delegate’s decision has been submitted in support of the review application.

3. On 1 July 2015 the review applicant, Ms Thi Nga Nguyen, applied to this Tribunal for review of the delegate’s decision. Ms Nguyen is Miss Dao’s step-mother.

4. Ms Nguyen appeared before the Tribunal on 2 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dao in person and from Miss Dao by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.

5. Ms Nguyen was represented in relation to the review by her registered migration agent who appeared at the hearing.

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

   TRIBUNAL HEARING

7. Ms Nguyen gave oral evidence that Miss Dao completed a business and media marketing course at the end of 2015 and in January 2016 she began studying English. Ms Nguyen said that Miss Dao has never worked, either full-time or part-time, because she likes studying a lot. Ms Nguyen said that Miss Dao did not study between 2008 and 2010. She looked for work during that period, but could not find a job so resumed studying. Ms Nguyen said that Miss Dao is single and wishes to pursue her studies. Miss Dao does not have any health problems. 

8. Ms Nguyen stated that Mr Dao has been sending between $200 and $300 per month to Miss Dao to support her to study. He also gave VND 70,000,000 (approximately $4,200) to Miss Dao’s paternal uncle each time he visited Vietnam to pay for her food and accommodation. The money sent to Miss Dao each month was for her school fees and to enable her to purchase personal items. About 80% was used by Miss Dao on school fees and the remainder for her own use, including clothing. The money was sent to Miss Dao’s aunt in Hai Phong, and then transferred to Miss Dao in Ho Chi Min City. This was because Mr Dao did not trust Miss Dao to manage the money properly; she might use it for something else. 

9. Ms Nguyen said that Mr Dao had sent $500 to Miss Dao for the past few months because of New Year celebrations and the increased cost of living in Vietnam. She said this was a short-term arrangement for a few months. Ms Nguyen told the Tribunal that she recently gave cash to her niece and nephew and asked them to pass it to Miss Dao when they travelled to Vietnam, but had not told Mr Dao the specifics of the amounts.

10. Mr Dao gave oral evidence that Miss Dao studied in a Bachelor degree from 2000 until 2005. She had a holiday after her course as she had studied very hard. Miss Dao looked for work but could not find a job. Mr Dao said that Miss Dao is not very healthy because she studies so hard. She is not very strong, so needs a job that is not physically demanding. Mr Dao stated that Miss Dao has not done any work in the past 15 years. He said that she really likes studying and he encourages her. Mr Dao said it is hard to find work in Vietnam. Mr Dao told the Tribunal that he has been sending $200 to Miss Dao since he came to Australia in August 2012. The amount he sends has recently been increased to $500 per month due to the increased cost of living in Vietnam and the unfavourable exchange rate. Mr Dao told the Tribunal that he left VND 60,000,000 in Vietnam when he came to Australia for Miss Dao’s use. He sent the $200 per month to Miss Dao and her mother as well. Mr Dao said that his eldest sister collected the money. A few months ago he started using a new service and the money is now sent to Miss Dao directly in Ho Chi Min City. All of the receipts are in Miss Dao’s name because she uses the address of the family home in Hai Phong. Mr Dao told the Tribunal that he does not send the money to his daughter until the school fees are due because Miss Dao may use it for something else. Every year when he returns to Vietnam, Mr Dao gives Miss Dao’s paternal uncle VND 70,000,000 for accommodation and food. Miss Dao was not aware of this, but she did worry that $200 per month was not enough. 

11. Miss Dao gave oral evidence that she has been studying since she left high school and has never worked. Miss Dao said she really likes studying. She looked for work between 2008 and 2010, but could not find a job so resumed her studies. She lives with her uncle in Ho Chi Min City. Her father sent money to her through relatives until October 2015 when he started sending it directly to her. The amount her father sends her has recently been increased to $500 per month.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether Miss Dao is a dependent child of her father, Mr Dao.

13. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing by Ms Nguyen, Mr Dao and Miss Dao. The Tribunal has also taken into account the information received after the hearing.

14. Ms Nguyen’s oral evidence at the hearing was hesitant and vague. She had difficulty remembering important details and on a number of occasions said she could not remember. The Tribunal found much of the oral evidence at the hearing, including that regarding Mr Dao sending money to Miss Dao via relatives in Hai Phong, to be vague, confused and unconvincing. Given Miss Dao’s age (33 years), the Tribunal is not prepared to accept the explanation given that Miss Dao could not be trusted to spend the money on her tuition fees so it was sent to her immediately before the fees were due. It is not credible that Mr Dao would fail to advise Miss Dao that he was providing financial assistance to her maternal uncle, Mr Chu, for her accommodation, particularly given Miss Dao’s reported concern that $200 per month was insufficient. The Tribunal did not find Ms Nguyen, Mr Dao or Miss Dao to be credible witnesses. 

15. There were a number of inconsistencies in the oral evidence at the hearing and these were put to Ms Nguyen in accordance with s.359AA of the Act, as follows:

    ·Ms Nguyen told the Tribunal that the money that Mr Dao sends to Miss Dao was sent via relatives for a few months after Mr Dao came to Australia, and thereafter sent directly to Miss Dao. Mr Dao gave evidence that the money was sent to his relatives until two months ago, but it is now sent to Miss Dao directly. When interviewed by the Department on 6 January 2015, Miss Dao said that her father had been sending the money directly to her aunt since September 2013. Miss Dao gave oral evidence at the hearing that the money has been sent to her directly since October 2015.

    ·Ms Nguyen gave oral evidence at the hearing that Mr Dao had sent $500 to Miss Dao for the past few months because of New Year celebrations and the increased cost of living in Vietnam. She said this was a short-term arrangement for a few months. Mr Dao and Miss Dao both told the Tribunal that the monthly amount of financial support that Mr Dao is sending to Miss Dao was recently increased to $500 per month due to increased living costs and a deteriorating exchange rate. They said the increased amount is indefinite.

16. In response, Ms Nguyen said she could not remember because she was too busy. She remembers that Mr Dao sent $500 to Miss Dao for New Year and said that Miss Dao may have asked for more money. Ms Nguyen told the Tribunal that she is not good with dates due to her age. Ms Nguyen’s migration agent submitted that Ms Nguyen and Mr Dao work 12-hour days in a chicken factory and Ms Nguyen’s mother died recently. Consequently, they may have some difficulty remembering details.

17. Ms Nguyen’s representative requested additional time to respond to the inconsistencies and provide supporting evidence regarding Miss Dao’s current studies. The Tribunal granted the request. In response, the Tribunal received the following on 15 March 2016:

    ·A translated certificate stating that Miss Dao had completed a course in Professional Sales Management at the Professional Training Institute in December 2015;

    ·A translated signed application for Certification of Student Status, dated 8 March 2016, from the Professional Training Institute indicating that Miss Dao has been studying in an Intermediate Level Management course since January 2016;

    ·A money transfer receipt dated 5 March 2016; and

    ·Payslips in the name of Ms Nguyen and Mr Dao.

18. The Tribunal notes that the document provided after the hearing regarding Miss Dao’s current study is inconsistent with the oral evidence at the hearing that Miss Dao is currently studying English. The Tribunal accepts that Ms Nguyen works long hours and that her mother died recently. Ms Nguyen is 54 years of age. In the absence of any independent medical reports or other reliable supporting documentation, the Tribunal is not prepared to accept that Ms Nguyen or Mr Dao has memory problems. Given her spousal relationship with Mr Dao, it is not credible that Ms Nguyen would be unaware that Mr Dao had decided to significantly increase the monthly amount sent to Miss Dao from January 2016 indefinitely.

19. According to the information provided in the application, Miss Dao was born in 1982 in Hai Phong, Vietnam, and is a citizen of Vietnam. The Department was provided with copies of Miss Dao’s birth certificate and Vietnamese passport. Miss Dao was sponsored in connection with the application by her step-mother, Ms Nguyen. According to the information in the application, Miss Dao’s father was granted a Subclass 820 visa on 5 October 2012.

20. Miss Dao indicated in the application that she was a student at the time of the visa application. She stated that she was studying Online Marketing Specialist with EQ Technology and Communications Development Joint Stock Company and that the course ran from 17 November 2014 to 30 March 2015. After the hearing Ms Nguyen’s migration agent provided documents which indicated that Miss Dao has been studying in the Intermediate Level Management Course at the Professional Training Institute since January 2016. As noted above, this document was inconsistent with the oral evidence provided at the hearing.  

21. Clause 445.211 of Schedule 2 to the Regulations requires that Miss Dao must be a dependent child of a visa-holding parent at the time of application. Clause 445.222 requires that Miss Dao continues to be a dependent child of the visa-holding parent at time of decision. In this case, Mr Tien Loc Dao held a Subclass 820 visa at the time of application and continues to hold such a visa. He is the relevant visa-holding parent. The issue is whether Miss Dao is the dependent child of Mr Dao at the time of application and time of decision.

22. ‘Dependent child’ is defined in r.1.03 of the Regulations. The evidence indicates that Miss Dao had turned 18 at the time of the visa application. In order to be a dependent child of Mr Dao, she must be dependent on him or incapacitated for work due to the total or partial loss of his bodily or mental functions. It is not claimed in this case that Miss Dao is incapacitated for work due to the total or partial loss of her bodily or mental functions. In these circumstances, the Tribunal must consider whether Miss Dao is dependent on her father, Mr Dao. Regulation 1.05A provides that 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.

23. The Tribunal did not consider the evidence regarding Mr Dao’s financial support of Miss Dao to be credible. Mr Dao told the Tribunal that he left VND 60,000,000 with Miss Dao when he migrated to Australia, but there is no independent evidence to corroborate this. Ms Nguyen and Mr Dao gave oral evidence at the hearing that he has also given VND 70,000,000 to Miss Dao’s uncle (Mr Duc Ngoc Chu) in cash each time he has visited Vietnam to pay for Miss Dao’s accommodation and food. Mr Dao said that he had not discussed this with his daughter and the Tribunal notes that it was not referred to in the documents provided to the Department. Statements were provided to the Tribunal by Mr Dao and Mr Chu which said that Mr Dao had given Mr Chu money for Miss Dao’s accommodation. No mention is made in either statement of the amount agreed upon or whether Miss Dao’s food was included. Mr Chu’s bank statements were provided for the period 1 July 2015 to 1 September 2015 and confirm that he receives a Vietnamese pension. As set out in the Decision Record that Ms Nguyen provided to the Tribunal, when interviewed by the delegate Miss Dao stated that she lives with her maternal uncle and does not pay for her accommodation. In the absence of any independent documentation to corroborate the claims made, the Tribunal is not prepared to accept that Mr Dao has given the sums claimed to Mr Chu to provide accommodation to Miss Dao.  

24. Transfer receipts indicate that Mr Dao sent regular monthly amounts (generally $200 but occasionally $300) to Miss Dao since September 2013. There is no evidence to support that the transfers commenced in 2012 as claimed. As set out in the Decision Record that Ms Nguyen provided to the Tribunal, Miss Dao stated when interviewed by a delegate that Mr Dao sends her $200 per month through her paternal aunt in Hai Phong. She said that Mr Dao does not send it to her as she does not have a bank account in Ho Chi Min City and Mr Dao is in the habit of sending it to his sister. This was inconsistent with the account given at the hearing for sending the money via Miss Dao’s relatives in Hai Phong.

25. Miss Dao and Ms Nguyen gave oral evidence at the hearing that around 80% ($160) of the $200 was for her tuition fees. The remainder (around $40 per month) was for Miss Dao’s personal expenses, including clothing. As set out in the Decision Record, Miss Dao told the delegate that her uncle provides her with accommodation. He also pays for food for the family, although she contributes $12 to $18 per month for rice. Miss Dao said she spends around $5 per month on clothing.

26. It is unclear why all of the receipts are in Miss Dao’s name when Mr Dao and Miss Dao both stated that until recently the money was sent to Miss Dao’s aunt in Hai Phong. There was contradictory evidence about when Mr Dao started sending money to Miss Dao directly. After the hearing Ms Nguyen’s migration agent sent a money transfer receipt for $500 from Ms Nguyen to Miss Dao, dated 5 March 2016. The evidence before the Tribunal regarding whether the recent increase to $500 per month was temporary or indefinite was inconsistent and confused. Given its concerns about the credibility of Ms Nguyen, Mr Dao and Miss Dao outlined above, the Tribunal is not prepared to accept the evidence regarding the reason for the recent increase or that it is indefinite.

27. Miss Dao is now 33 years old. Although continuous study is not a requirement of this visa subclass, Miss Dao’s curriculum vitae shows lengthy gaps in her studies. As set out in the Decision Record that Ms Nguyen provided to the Tribunal, Miss Dao did not study from August 2007 to May 2008 (11 months), from September 2008 to March 2010 (18 months) and from August 2010 to October 2012 (26 months). Miss Dao, Mr Dao and Ms Nguyen gave consistent evidence that Miss Dao has never worked, despite the gaps in her studies and her age. The oral evidence at the hearing was that Miss Dao looked for work from 2008 to 2010, but resumed her studies when she could not find a job. Mr Dao told the Tribunal that Miss Dao needed a rest after her degree because she had worked very hard. The oral evidence provided at the hearing about Miss Dao’s studies was vague and unconvincing.  As noted above, the information provided after the hearing about Miss Dao’s current course of study (intermediate management) conflicted with the oral evidence provided at the hearing that Miss Dao has been studying English since early 2016.

28. The Tribunal is not satisfied on the basis of the evidence before it that at the time of application or at the time of this decision Miss Dao was, or continues to be, wholly or substantially reliant on Mr Dao for financial support to meet her basic needs for food, clothing and shelter. There is some documentation to indicate that Mr Dao has sent money to Miss Dao, but there is consistent evidence that the majority of the money (around $160 per month) was for Miss Dao’s tuition fees. There was conflicting evidence about why the money was sent to Miss Dao in Hai Phong when Miss Dao is reportedly living with her uncle in Ho Chi Min City. Tuition fees do not fall within the definition in r.1.05A. The Tribunal is not prepared to accept that $40 per month is sufficient to meets Miss Dao’s needs for accommodation, food and clothing, either at the time of application or at the time of decision. Although $300 was sent on a few occasions, this was not a regular pattern. Given the discrepancies in the evidence, in particular that Ms Nguyen understood the increase to be short-term to help Miss Dao celebrate New Year, the Tribunal is not prepared to accept that Mr Dao is now sending $500 per month to Miss Dao on a regular basis to meet her claimed increased costs of living. There is no independent evidence before the Tribunal to indicate that Miss Dao’s expenses have increased significantly since late 2015 or that her material circumstances have changed.

29. As set out in the Decision Record, when interviewed by the delegate Miss Dao advised that her accommodation and food (except for rice) were provided by Mr Chu. Miss Dao said she contributed between $12 and $18 per month for her rice and spent around $5 per month on clothing. The Tribunal finds that Miss Dao has been more dependent upon her maternal uncle, Mr Chu, since Mr Dao left Australia in 2012. The Tribunal acknowledges that Mr Chu receives a Vietnamese pension, but he owns his own home and Miss Dao makes some contribution to the cost of food in the household. The Tribunal is not satisfied on the basis of the evidence before it that Miss Dao was reliant upon Mr Dao for financial support to meet her basic needs for food, clothing and shelter at the time of application or is reliant upon him for financial support to meet her basic needs for food, clothing and shelter at the time of this decision.

1. Therefore, the Tribunal is not satisfied that Miss Dao is dependent on Mr Dao within the meaning of r.1.05A.

2. For the reasons above, Miss Dao does not satisfy the criteria for the grant of the visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa. 

   Glynis Bartley
   Member