1509841 (Migration)

[2016] AATA 3202

1509841 (Migration) [2016] AATA 3202 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr DAVID MAXWELL HAMMOND

VISA APPLICANT:  Mr HUY PHONG NGUYEN

CASE NUMBER:  1509841

DIBP REFERENCE(S):  OSF2014/027834

MEMBER:Kira Raif

DATE:9 February 2016

PLACE OF DECISION:  Sydney

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

·cl.445.211 of Schedule 2 to the Regulations; and

·cl. 445.221 of Schedule 2 to the Regulations; and

·cl. 445.222 of Schedule 2 to the Regulations.

Statement made on 09 February 2016 at 10:15am

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 18 May 2015 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in September 1991. The visa applicant applied for the visa on 11 November 2014. The delegate refused to grant the visa on the basis that the applicant was not the dependent child of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 9 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent.

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

   Relevant law

5. 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.

6. Clause 445.211 relevantly provides that the applicant must be a dependent child of a visa-holding parent. ‘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?

7. The applicant provided with the application evidence of being a child of the visa-holding parent (his mother). Also included with the primary application is evidence that the visa applicant’s mother had been granted the temporary Partner visa. The Tribunal is satisfied that the applicant is the child of the relevant parent and also that his mother holds the subclass 309 visa and is therefore a ‘visa-holding parent’.

8. The applicant was born in September 1991 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 nothing to suggest that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions and the Tribunal is not satisfied that he meets paragraph (b)(ii) of the definition of ‘dependent child’. The issue before the Tribunal is whether the applicant is dependent on his mother, as defined in r. 1.05A.

9. The visa applicant’s evidence at the interview with the delegate refers to his work ‘on call’ between 2006 and 2010. The review applicant’s evidence to the Tribunal is that the visa applicant did minimal work in that period, only 3-4 times a year and was given pocket money. The Tribunal does not accept that evidence because the Tribunal does not accept it as plausible that if the work was of such minimal nature, the visa applicant would even refer to such employment in his application. The Tribunal has formed the view that the more recent submissions to the Tribunal concerning the nature of this employment had been deliberately altered to minimise the visa applicant’s involvement. However, it is not in dispute that this work ended in 2010. The application for the visa was made in 2014 and the Tribunal is of the view that the period of the visa applicant’s ‘on call’ work occurred well before the period that is relevant for determining his dependency.

10. The visa applicant claims that from about 2010 he worked for his mother in a shop. The review applicant’s written submission to the Tribunal is that the visa applicant’s involvement in that shop was minimal and that he was not capable of serving customers or doing other work in the shop. In his oral evidence the review applicant said the shop was something arranged from home and had virtually no income. However, he also confirmed that the family had no other source of income, so the shop must have offered sufficient income to support the family. The Tribunal does not accept the review applicant’s evidence that the visa applicant was incapable of helping in the shop due to his young age or lack of education. The review applicant’s evidence to the Tribunal is that the visa applicant was helping the mother in the shop since he was about 16. The Tribunal is not convinced that any particular level of education or training is required to assist customers or even run a small shop of the type that was owned by the family. The Tribunal has formed the view that the review applicant had deliberately minimised the visa applicant’s involvement in the shop.

11. The Tribunal finds that the visa applicant worked in the mother’s shop. However, the Tribunal is not convinced that the visa applicant was paid for the work. The Tribunal is mindful that the delegate formed the view that there may have been a financial arrangement between the visa applicant and his mother but there is no evidence that the visa applicant was paid for the work in the shop. The review applicant’s evidence to the Tribunal is that the shop was very small and was run out of his wife’s house. He said the family was merely making enough money for basic survival and the Tribunal has no reason to doubt this evidence. There is nothing to suggest the shop was anything other than a small family operation and given that the family had no other income, it is plausible, in the Tribunal’s view, that the entire income from the shop was used for the family’s expenses.

12. The Tribunal also notes that the issue here is not whether the visa applicant engaged in employment but whether he had in fact any income from any other source and whether he was reliant on any source of income other than his mother. The Tribunal is satisfied that even though the visa applicant worked for his mother’s shop, he was not paid for that work and that he was fully supported by, and dependent on, his mother.

13. The visa applicant then worked on his uncle’s land. The visa applicant’s evidence to the delegate is that he had a loss and did not earn any money while working for his uncle. The visa applicant explained to the Tribunal that his uncle went to work elsewhere and asked him to take care of the house and a few longan trees. There is no evidence of any income from that work.

14. The delegate found that the visa applicant was not dependent on his mother until he resumed dependency and found that the visa applicant resumed dependency to achieve a migration outcome. However, the Tribunal notes that the visa applicant’s motivations are not relevant. As the Full Federal Court held in Huynh v MIMA [2006] FCAFC 122, the words of r 1.05A, 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].

15. The Tribunal is satisfied that, as a matter of fact, the visa applicant was not receiving any income from working at his mother’s shop and his income from working on the uncle’s land was minimal at best. (His evidence is that there was a loss.) There is documentary evidence before the Tribunal that the review applicant had been sending money to the family regularly since about 2010. The Tribunal is satisfied that the review applicant has been the primary source of support for the visa applicant at the time of the application and for a reasonable time prior. The Tribunal is satisfied the visa applicant was reliant on his mother and the review applicant for food and clothing. The Tribunal also accepts the evidence that the visa applicant resides in the house owned by his mother and the Tribunal finds he is reliant on his mother for shelter.

16. The Tribunal is satisfied that the visa applicant is, and has been for a substantial period immediately before the time of the application, wholly or substantially reliant on the review applicant and his mother for financial support to meet his basic needs for food, clothing and shelter. The Tribunal further finds that his reliance on the review applicant and his mother is greater than any reliance on any other person, or source of support, for the financial support necessary to meet his basic needs for food, clothing and shelter. As such, the Tribunal is satisfied that the visa applicant is a dependent child of his mother (within the meaning of r. 1.05A) at the time of the application and that he remains to be a dependent child at the time of decision.

17. The Tribunal finds that the visa applicant’s mother continues to hold a visa in Subclass 309 and the Tribunal finds that she is a ‘visa- holding parent’. The Tribunal finds that the visa applicant was, at the time of the application, and continues to be at the time of this decision, a dependent child of the visa-holding parent. He was sponsored by the sponsor or nominator of the visa-holding parent, Hammond. The Tribunal is satisfied that the visa applicant meets cl. 445.211, cl. 445.221 and cl. 445.222.

    DECISION

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

    ·            cl.445.211 of Schedule 2 to the Regulations; and

    ·            cl. 445.221 of Schedule 2 to the Regulations; and

    ·            cl. 445.222 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member