1511915 (Migration)

[2016] AATA 4321

1511915 (Migration) [2016] AATA 4321 (16 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Son Ngo

VISA APPLICANT:  Master Hoang Trung Nguyen

CASE NUMBER:  1511915

DIBP REFERENCE(S):  OSF2014/026978

MEMBER:Kira Raif

DATE:16 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 16 August 2016 at 5:20pm

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 25 August 2015 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in April 1992. He applied for the visa on 30 June 2014 as a member of the family unit of his mother, who was the primary visa applicant (PVA). The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.321 because the delegate was not satisfied the visa applicant was a dependent child of the PVA. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 16 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant and her aunt. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4.    Clause 309.311 requires the applicant who seeks to satisfy the secondary criteria to be a member of the family unit of a person who satisfies the primary criteria in subdivision 309.21. At the time of decision, cl. 309.321 relevantly requires the applicant to continue to be a member of the family unit of the person who satisfies the primary criteria.

5.    The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, paragraph (b) of that definition provides that a member of the family unit includes a dependent child of the family head or of a spouse or de facto partner of the family head.

6.    The term ‘dependent child’ is defined in r. 1.05A as follows

dependent child of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), 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.

Is the applicant a dependent child of the primary visa applicant?

1. When making the application, the visa applicant claimed to be a dependent child of his mother, the primary visa applicant. He is not seeking to meet the primary criteria for the grant of the Class UF visa and the Tribunal is not satisfied on the evidence before it that the visa applicant meets the primary criteria for the grant of the Partner visa.

2. As the visa applicant claims to be the child of the PVA, the Tribunal is not satisfied that he meets the definition of ‘member of the family unit’ in r. 1.12(1)(a) and (c). The Tribunal finds that subparagraphs (2) – (9) of r. 1.12 are not relevant in this case. The applicant is seeking to meet r.1.12(1)(b).

3. There is no evidence that the visa applicant is incapacitated for work due to total or partial loss of his bodily or mental functions and the Tribunal is not satisfied that the visa applicant meets paragraph (b)(ii) of the definition of “dependent child”.

4. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was interviewed and stated the following during his interview with the delegate:

   a.His mother has been supporting him financially since early 2014. He stated that between 2010 and 2014 he relied on his uncle for food, clothing and accommodation;

   b.He lived at his uncle’s rented house since 2010. Neither he nor his mother paid for him to live there;

   c.At the time of the interview, the mother cooks food and gives him money when he goes out. Between 2010 and the time of the mother’s return to Vietnam at the end of 2013, he ate at home and his mother did not pay for the food. When he went out, his uncle paid for the food. He does not pay for the meals that he had with his uncle’s family;

   d.He has not lived with his mother until February 2014 and the current house is rented by his uncle. He resided with his uncle’s family since he was 13 years old and the uncle provided him with free accommodation;

   e.Neither he nor his mother pay for the current accommodation;

   f.Between 2010 and 2014 his uncle gave him money to cover other needs, including clothing. From 2014 he had been supported by his mother.

5. It is recorded that the primary visa applicant stated at the interview that she had given her brother money to support the visa applicant in terms of food and accommodation while she was in Australia and contributed towards the rent of the current accommodation but she provided no evidence of transfers of funds to her brother. The delegate noted that evidence of transfers to the amount of about $1500 has been provided for the period from June 2013 to November 2013. The mother is recorded to have stated that she has not worked since returning to Vietnam and that the sponsor has been supporting her.

6. In his oral evidence to the Tribunal the review applicant said the primary visa applicant first arrived in Australia around 2005, left for Vietnam and the end of 2013 and last arrived in Australia in October 2015. The review applicant said that prior to arriving in Australia in 2015, his spouse lived with her younger brother because she had nowhere to live since she divorced her ex-husband in 2013. The review applicant said that the visa applicant used to live with his paternal grandfather but in 2010 moved to the uncle’s house because there were better education and other opportunities in that area.

7. It is not in dispute, and the Tribunal accepts, that since 2010 the visa applicant has been residing with his uncle. What is in dispute is whether the PVA has contributed to the cost of the visa applicant’s living expenses, such as food, shelter and clothing. At the interview with the delegate the visa applicant stated that she did not. The subsequent written and oral evidence to the delegate and the Tribunal suggests that the PVA has been providing financial support to her brother to pay for the child’s food, shelter and clothing, as well as other expenses.

8. The Tribunal is mindful that the latter evidence contradicts the visa applicant’s information given at the interview with the delegate, as set out in the primary decision record. There is no reason why the information given to the Tribunal or information given by the mother t the delegate should be given greater weight than the information provided by the visa applicant at his interview with the delegate. The Tribunal is concerned that the subsequent evidence has been prepared specifically to address the delegate’s findings.

9. The review applicant provided to the Tribunal evidence of several transfers made between Australia and Vietnam. The earliest of these was made in July 2013. The review applicant, the PVA and her sister explained to the Tribunal that the money transfers were made earlier but because the visa applicant was an unlawful non-citizen, she did not send the money in her own name. The review applicant suggested that his wife was “not allowed” to send money because she had no visa but the Tribunal does not accept that evidence. She may not have been allowed to work as an unlawful non-citizen but there would be no prohibition on her sending money. Having regard to the evidence of transfers, the Tribunal accepts that money was sent to the visa applicant from at least July 2013. Although these transfers are in the sponsor’s name, the Tribunal is prepared to accept that the PVA contributed the money to the transfers. That is, the Tribunal accepts that at least from mid-2013 the mother had sent money to the visa applicant.

10. However, the review applicant’s evidence to the Tribunal is that the money was used primarily for the visa applicant’s educational expenses. The PVA and her sister suggested the money was used for rent and food and other daily expenses but that is not the evidence of the review applicant and, most significantly, that is not the evidence the visa applicant gave in his interview with the delegate. As noted above, the visa applicant expressly stated that he has not contributed to the rent since he has been living with his uncle and, until his mother returned to Vietnam in late 2013, he has not contributed to the food.

11. The PVA informed the Tribunal that her son was too young and she did not inform him about the money she gave to her brother. The Tribunal does not accept that evidence. Firstly, by 2013 the visa applicant was about 21 years of age and he may be expected at that age to have at least some understanding of financial matters and an appreciation of how he is being supported. Secondly, the review applicant informed the Tribunal that since 2012 when he developed a relationship with the child’s mother, they had been sending money to the visa applicant and rarely to his uncle. The review applicant said that they only sent money to the child’s uncle as a present because he had sufficient funds. That contradicts the evidence of the PVA and her aunt that there were separate transfers being made to the uncle to support the child’s expenses for food and shelter. The Tribunal prefers the evidence of the review applicant and finds, having regard to the evidence of transfers, that at least since 2013 the review applicant had been sending money to the visa applicant. The Tribunal does not accept that there were other transfers being made to the uncle, particularly in the absence of any documentary evidence of such transfers. The parties claim that these occurred too long ago and they did not keep records butt they did provide records of transfers made to the visa applicant from mid-2013 and there is simply no reason why they would keep records of some transfers but not others.

12. The Tribunal finds that from mid-2013 the only transfers made were transfers to the visa applicant. The evidence of the review applicant, which is consistent with the evidence of the visa applicant at the interview with the delegate, is that such funds were not used for food and shelter. The funds may have been used for the visa applicant’s study. The funds could have been used on other goods but the Tribunal is not satisfied that the visa applicant gave the money to his uncle to pay for accommodation or to pay for the food. If the transfers to the son were the only transfers made, as the Tribunal has found, then the visa applicant should have been aware if the money was given to the uncle. His lack of awareness, the absence of any documentary evidence to show transfers being made to the uncle, and the review applicant’s evidence, all cause the Tribunal to find that there were no other transfers made to the uncle and that the transfers made to the visa applicant did not contribute to food and shelter.

13. Thus, the Tribunal is satisfied that from mid-2013 and until the PVA returned to Vietnam in late 2013, she provided financial support to her son but the Tribunal is not satisfied that such support was for food, shelter and clothing. The Tribunal finds that the visa applicant relied on his uncle for food and shelter until at least the end of 2013 when the PVA returned to Vietnam. In the Tribunal’s view, the definition of dependence requires reliance on all three elements: food, shelter and clothing and in the present case, the reliance on at least two of these elements was on the uncle and not on the mother.

14. The Tribunal is not satisfied that before late 2013 when the PVA returned to Vietnam, the visa applicant has been wholly or substantially reliant on his mother for financial support to meet his basic needs for food, shelter and clothing. The Tribunal is not satisfied that before the end of 2013, the visa applicant’s reliance on his mother was greater than any reliance on any other person (such as his uncle) or source of support, for financial support to meet the visa applicant’s basic needs for food, clothing and shelter. The Tribunal is not satisfied that until at least before the end of 2013, the visa applicant was a dependent child of the PVA. It is not necessary for the Tribunal to determine whether the visa applicant became a dependent child after the end of 2013 because even if that was the case, that would not be sufficient time to form a ‘substantial period’ immediately before the time the application was made. The application was made in June 2014 and the Tribunal does not consider that a period of a little more than six months is a substantial period. It follows that at the time of the application, the visa applicant was not a dependent child of the primary visa applicant. As he does not meet any other definition of a member of the family unit, the Tribunal is not satisfied that at the time the application was made, the visa applicant was a member of the family unit of the primary visa applicant. He does not meet cl. 309.311.

15. The review applicant provided to the Tribunal a number of family photographs. While the Tribunal acknowledges and accepts the family relationship, such photographs do nothing to establish the child’s dependence on his mother. The review applicant and the PVA also spoke to the Tribunal about their concern for the visa applicant living alone and being subjected to bad influence. The Tribunal acknowledges that evidence but as the Tribunal explained to the parties in the course of the hearing, it is unable to recommend visa grand on any humanitarian grounds or on the basis that the visa applicant wants to be reunited with his mother. For the reasons set out above, the Tribunal is not satisfied the visa applicant is a dependent child of the PVA. As such, he is not a member of the family unit and does not meet the requirements for the grant of the visa.

    Conclusion

16. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Kira Raif
    Senior Member