1509237 (Migration)

[2016] AATA 4205

1509237 (Migration) [2016] AATA 4205 (10 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Loc Duong

VISA APPLICANT:  Mr Van Hai Nguyen

CASE NUMBER:  1509237

DIBP REFERENCE(S):  OSF2014/027079

MEMBER:Lisa Lo Piccolo

DATE:10 August 2016

PLACE OF DECISION:  Melbourne

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

·   cl.445.211 of Schedule 2 to the Regulations

·   cl.445.222 of Schedule 2 to the Regulations

Statement made on 10 August 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 29 May 2015 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 2 October 2014.  The delegate refused to grant the visa on the basis that the visa applicant was not the dependent child, as defined in the Regulations, of his visa holding parent.

3. The review applicant appeared before the Tribunal on 8 August 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant’s mother, Thi Mai Hung Tran and the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. At the time of the visa application (2 October 2014), the visa applicant was 22 years of age and single.  The issue is whether he meets the definition of dependent to meet the requirements of clauses 445.211 and 445.221. 

2. The Tribunal notes that the Migration Review Tribunal considered the issue of the visa applicant’s dependence on 27 June 2013 in the context of a subclass 300 review application.  That case involved review of a decision by the Department to refuse to grant the visa applicant’s mother, Thi Mai Hung Tran, and her two children, a subclass 300 visa.  The presiding Member remitted the application with respect to Ms Tran and the visa applicant’s younger brother who was under 18 at the time of the application.  In relation to the visa applicant (who was the second named applicant in that review application), the presiding Member was not satisfied, as a matter of fact, based on the available evidence, that the visa applicant was or had been wholly or substantially reliant on Ms Tran for financial support to meet his basic needs for food shelter and clothing, or that his reliance on her was greater than his reliance on any other person or source of support.   The Tribunal therefore was not satisfied that the applicant was at the time of application, dependent on her within the meaning of r.1.05A.

Relevant law

1. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations.

2. Clause 445.211 relevantly provides that the applicant must be a dependent child of a visa-holding parent.  Clause 445.222 provides that at the time of decision the applicant must continue to be a dependent child of the visa holding parent.  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 de facto partner.  Where the child has turned 18 years of age, the child must be dependent on the person as defined by the regulations. 

3. ‘Dependent child’ is defined in r.1.03 of the Regulations. The term ‘dependent’ is defined in r. 1.05A as follows

   (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.

Is the applicant a dependent child of the visa holding parent?

1. The visa applicant provided with the application evidence of being a child of the visa-holding parent (his mother, Ms Tran).  The Tribunal is satisfied that the visa applicant is the child of the relevant parent and also that his mother holds the subclass 820 visa and is therefore a ‘visa-holding parent’.

2. The visa applicant was born in October 1992 and the Tribunal finds that he had turned 18 at the time the application was made.  He does not meet paragraph (a) of the definition of ‘dependent child’.  There is no claim or suggestion before the Tribunal that the visa applicant is dependent within the meaning  of r.1.05A(1)(b) or that she is otherwise a dependent child due to being ‘incapacitated for work due to the total or partial loss of the child’s bodily or mental functions’.

3. The issue before the Tribunal is whether the visa applicant is dependent on his mother, as defined in r. 1.05A.

4. This regulation 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].

5. The Tribunal has had regard to the Department’s policy which provides that a substantial period is usually taken to be at least 12 months immediately before the application, substantially reliant on the other person to meet his or her basic needs for food clothing and shelter, and his or her reliance on the other person is greater than any reliance on any other person or source of financial support to meet his or her basic needs for food, clothing and shelter.

6. The visa applicant gave evidence that he finished secondary school in June 2010 and that the visa applicant has been in full time study since then and dependent on his mother, Ms Tran for all his basic needs.  The visa applicant’s evidence is that after the June 2010 summer break, he attended the Food Industry University in Ho Chi Minh City between October 2010 and June 2012.  The visa applicant gave evidence that he did not complete this course and after spending the 2012 summer vacation at home with his mother, he commenced a diploma in front office (reception) at the Binh Thuan Community College.  He said that this course ran between October 2012 and July 2015.  The visa applicant completed this course.  He said he then enrolled in an English course which he said commenced in April 2015 and finished in November 2015.  The visa applicant is currently enrolled in a Diploma of Front Office in Business Management which commences on 15 August 2016.

7. According to the visa applicant’s evidence to the Tribunal, his mother has financially supported him since he completed secondary school.  He said that he has been studying full time between June 2010 and October 2015 and although he has not studied since then, he is enrolled to commence another course on 15 August 2016.   He said that his mother has been paying for all his tuition fees as well as all his basic needs including his rental board, food and other expenses.  He said that he lived in a boarding house when he attended university in Saigon and also in Bing Thuan while he attended college.  With the exception of the summer breaks when his mother was still living in Vietnam, he said he has lived in boarding houses at all times since October 2010 which have been paid for by his mother.  He said he does not have any relatives in Vietnam with whom he could live in Saigon or the town in Bing Thuan province where he studies.  He said he has never had a part time or full time job and relies upon his mother to meet all his financial needs.  He said that his mother left him 30,000,000 Vietnamese Dong when she migrated to Australia.  He said that explains why she originally sent him $100AUD per month in the early days, and why she has been sending him at least $200AUD since then.  He said that the amount his mother sends to him differs depending on his needs. 

8. At the hearing, Ms Tran told the Tribunal that she has been financially supporting her son since he completed secondary school in 2010.  She said she wants him to study and make a better future for himself and that is why she supports him.  She said that she works part time on a “cash in hand” basis in her brother’s “beer shop”.   She also told the Tribunal that she sold her dragon fruit farm before coming to Australia and left her son around $30 million Vietnamese dong which was intended to cover his needs in the first number of months.  She told the Tribunal that since she arrived in Australia, she sends money to the visa applicant each month.  She said the amount varies depending on his needs but is usually more than $200 per month.  She said she has always paid for his food, clothing and shelter: he has never worked and has no other sources of income of financial support.  Her and the visa applicant both stated that he has no contact with his natural father and he has never provided him with any financial support.

9. The Tribunal questioned the visa applicant about his interview with the Department (as recorded in the delegate’s decision) in which he told the delegate he was residing with his mother between 2010 and 2012 and assisting her to plant dragon fruit.  The Tribunal also referenced his curriculum vitae which he submitted in support of this application in 2015 which also noted that he was residing at the same address as his mother during this period.  The visa applicant stated that he must have been confused by the delegate’s questions because he was studying at that time and living in Saigon.  He said that he only spent the summers with his mother and even then he only ever assisted her “occasionally” with her dragon fruit business.  Mostly, he said if he wasn’t studying he would help with home chores and cooking.  He said that he provided documents to the Department which verify that he was studying at the relevant time.  He further said that the address in the CV was his permanent address not the address of the boarding house where he was living whilst studying in Saigon. 

10. According to paragraph 58 of the Migration Review Tribunal’s decision dated 27 June 2013, the visa applicant’s Curriculum Vitae dated 14 April 2011 submitted to the Department in support of the earlier subclass 300 application confirms that he was a fulltime student in 2011 and residing in Saigon.  It also confirms that a transcript of his results dated 28 April 2011 and a receipt dated 30 January 2011 appear on the Department’s file, and that Ms Tran was paying for his boarding house rent.  Having regard to this, the Tribunal does share the delegate’s concerns or her view that the visa applicant was residing with Ms Tran and working for her in an employer/employee relationship.    The Tribunal accepts that the visa applicant assisted his mother “occasionally” during school holidays, and in any case, is not of the view that this would constitute an employee/employee relationship.  Given the consistency of the evidence before the Tribunal and the corroborating evidence, the Tribunal accepts that the visa applicant must have misunderstood the questions hence why he gave answers to questions which contradict his own documents.

11. The Tribunal has considered the documents submitted to the Department and the Tribunal in support of the application including the boarding house receipts, school enrolment forms and results, and numerous money remittances between 2014 and June 2016.  The Tribunal acknowledges the Delegate’s concerns that, on any reckoning of the visa applicant’s expenses, his expenses were significantly greater than the financial support he told the delegate was provided by Ms Tran, giving rise to concerns that the visa applicant receives another source of income in addition to Ms Tran’s financial support in order to meet his basic monthly expenses. However, having been provided with a large number of remittances covering the period between 2014 and the date of decision, the Tribunal does not share the delegate’s concerns.  It is clear that the visa applicant has been provided with significant sums of money on a monthly basis which exceed his basic expenses for food clothing and shelter. 

12. Having considered the totality of the evidence before it, the Tribunal accepts that the visa applicant’s mother has provided him financial support.  There is no evidence before the Tribunal that the visa applicant has received support from other sources, whether from his father or other person.  The evidence before the Tribunal is that the visa applicant does not maintain contact with his father and Ms Tran’s parents are deceased and her siblings reside in Australia.  The Tribunal is satisfied on the evidence before it that the applicant’s reliance on his mother is, or was at the time of the application, and the time of the decision greater than any reliance by him on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.  The Tribunal is also satisfied that at the time the application was made and the time of the decision, and for a substantial period immediately before that time, the applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs for food, shelter and clothing. The Tribunal is satisfied that the applicant is a dependent child of his mother, who is the visa holding parent.

23.The Tribunal is satisfied the applicant meets cl. 445.211 and cl.445.222.  

DECISION

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

   ·    cl.445.211 of Schedule 2 to the Regulations

   ·    cl.445.222 of Schedule 2 to the Regulations

Lisa Lo Piccolo
Member