1601404 (Migration)

[2016] AATA 4684

1601404 (Migration) [2016] AATA 4684 (17 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Van Anh Tran
Miss Thao Nguyen Tran

CASE NUMBER:  1601404

DIBP REFERENCE(S):  CLF2015/25022

MEMBER:Michelle Grau

DATE:17 November 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 17 November 2016 at 3:56pm

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 19 January 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 23 April 2015. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212.

3. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the applicant had a daughter who was living with his ex-wife and therefore had  a near relative who was not an Australian citizen, permanent resident or eligible New Zealand citizen.

4. The first named applicant appeared before the Tribunal by telephone on 9 November 2016 to give evidence and present arguments. The second named applicant is six years of age and the first named applicant said he gave evidence for and on behalf of the second named applicant. The Tribunal also received oral evidence from the first named applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of Tran Thi Huong , who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

8. In this case Mrs Tran Thi Huong is the first named applicant’s mother and an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

10. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

11. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.

12. The issue in this case is whether the first named applicant (‘the applicant’) has no near relatives. The second named applicant is his daughter (referred to as ‘daughter’).

    No near relatives: r.1.15(1)(c)

13. Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

14. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

15. The applicant is a New Zealand citizen. He arrived in New Zealand in 1998 with his sister, sponsored by their adoptive mother, Tran Thi Huong.

16. His adoptive mother arrived in Australia in 2001 and has been an Australian citizen since 2003. The adoptive mother sponsored the applicant’s sister to Australia on a carer visa in May 2011 to look after her. The adoptive mother is now sponsoring the applicant as the remaining relative.

17. According to his statutory declaration of 12 June 2012, the applicant had a child with his former defacto partner, Ms HO, Thi Minh Thu (referred to hereinafter as ‘ex-wife’) in Melbourne. They married in January 2012 but they divorced in 2013. Their daughter, Thao Nguyen Tran was born on 6 November 2010.  The applicant claims his daughter is a New Zealander by descent. A copy of her passport confirms this. In his statutory declaration, the applicant claimed he could not contact his daughter directly but he regularly supported her financially by asking his friend in Melbourne to give money to his daughter and he returned the money to his friend later. The applicant’s biological parents and blood siblings are still living in Vietnam but he did not declare them as he was young when he was adopted and he has not invited them to visit New Zealand or Australia.

18. On 9 July 2015 the applicant added his daughter (the second named applicant) to this application.

19. According to a 12 October 2015 statement, the applicant stated his daughter was living with him and she is a New Zealander by descent.

20. On 17 October 2015, the applicant’s agent provided a consent form from the mother of the daughter to migrate evidence, and other documents from the child’s mother ( the ex-wife), but these were not received by the department. At review, the applicant provided further documents and submissions, including study records, school letters and fees in 2016 to evidence a change in the care and control of the daughter.

    Adoptive relationship and biological parent and siblings

21. The tribunal accepts the applicant has two brothers and two sisters in Vietnam and his natural mother.  They are declared on his form 80 in June 2015. However the tribunal also accepts that the applicant was adopted by his adoptive mother in Vietnam in 1978 and a consent for adoption letter from Vietnam dated 25 August 1978 was provided. Immigration post in Vietnam confirmed the adoption was according to Article 24 of the Law on Family and Marriage 1959 and it was properly recognised by the local people’s committee. It was therefore considered a legal adoption. The tribunal accepts the applicant was legally adopted when he was under 18 years. 

22. The tribunal accepts a biological relationship is severed as the applicant was legally adopted. The applicant’s natural parent and siblings in Vietnam therefore are not included or considered as near relatives.

    Is the applicant’s daughter a near relative?

23. The issue for consideration is whether the applicant’s daughter was a near relative at time of application.

24. The tribunal finds at time of application the applicant’s daughter was not included in the application. She was added to the application on 9 July 2015. A copy of her NZ passport and form 1236 and appropriate fee was provided to the department.

25. The delegate refused the application because the daughter was under 18 years old and not in the applicant’s daily care and control. The delegate therefore found the daughter was a near relative and the applicant therefore did not meet the definition of remaining relative at time of application ( 23 April 2015) and refused the visa application.

26. At review the applicant’s representative provided submissions and documents arguing in summary that:

    a.They had sent paperwork regarding consent for the daughter to migrate in October 2015, but it had not been received by the department

    b.the applicant’s daughter was in the applicant’s daily care and control at time of application as the applicant stated he financially supported his daughter. As the department accepted the daughter’s application in July 2015 it implied or expressly deemed the daughter was substantially dependent on him at time application.

    c.At time of decision the daughter was in the applicant’s daily care and control as evidenced by his payment of school fees, school letters, Medicare and his declaration of 21 October 2015.

    d.At hearing the agent submitted the daughter was dependent on the applicant. A child studying in Australia can be under care and control of parents, even if they are in Vietnam. When they lodged the application they did not know the criteria. The agent submitted being financially dependent means the daughter is under the applicant’s daily care and control

27. The tribunal rejects the applicant’s argument that accepting an application for a visa implies or deems the daughter is substantially dependent. While dependency may be a criteria in some visa classes, it is a criteria and requires assessment on the evidence. Mere lodgement of an application does not mean an applicant meets the criteria or is dependent. Further, the relevant issue is not the daughter’s dependency but whether she was in the applicant’s daily care and control.

28. Further, the test of dependency, or financial dependence or support and daily care and control are not the same.

29. At hearing the tribunal discussed the applicant’s daughter’s care and control circumstances.

30. The applicant reiterated his claims that he provided financial support to his daughter when she was in Melbourne with her mother. When he found out the daughter needed to be in his daily care and control from his lawyer he arranged for the daughter to live with him.

31. Having heard from applicant and his sister at hearing, the tribunal found the applicant’s evidence about his daughter, her circumstances and when she came to live with him was vague and hesitant.

32. He could not recall when his daughter came to live with him, even approximately. He could not remember if it was before or after he was refused the visa. He could not recall if she had been living with him for months or years. The applicant could not recall when he first had contact with the daughter. Eventually, he thought she had been living with for a year, less than a year or eleven months.  The tribunal found the applicant’s evidence about how long the daughter was living with him or when she came to live with him was particularly vague and evasive.

33. The applicant claimed he paid $100 - $300 a week or every second week to his daughter via his friend, when the daughter was in Melbourne. However the applicant had no evidence of payment of money to his friend as he had lost contact with him. The tribunal asked how the friend could pay the money if there was no direct contact with the daughter, and the applicant did not know the ex-wife’s address. The applicant reiterated his friend gave the money to his ex-wife. The applicant confirmed he did not know the ex-wife’s address. When asked how his friend knew where the ex-wife was, the applicant did not know. He repeated that he sent money to his friend to forward to his daughter. He did not know anything else. The tribunal found his evidence about the financial support vague, lacking in details and lacking in credibility. Further, when asked to explain or provide more details the applicant repeated his evidence or said he did not know anything else.

34. The applicant also claimed his daughter has had no contact with her mother since she came to be with him in Brisbane. He had refused to allow contact because the ex-wife had a partner and the ex-wife was not good with the daughter. He confirmed the ex-wife was living now in Brisbane, but did not know where she lived. The tribunal finds these claims lacking in credibility, particularly given the daughter is only six years of age. Further, on his evidence, the daughter lived with her mother all her life, until recently for the purposes of the visa. That she would live with her mother until she was five or six, then go to live with her father and have no contact with her mother in these circumstances and at such a young age is lacking in credibility. ‘

35. The tribunal found the applicant’s evidence and knowledge of the daughter’s circumstances was vague and hesitant and not consistent with a person who had sole daily care and control of a six year old. For instance, he was not sure of the name of the school, but said it had Peter’s in its name. At first, he said she was in kindergarten, but then said she was preparing for grade one. He said he paid the school fees every three months, but the documentary evidence provided by him showed the school fees were paid monthly. He was not sure when the school year finished, other than soon. He was not sure when the last school holidays were. After some hesitation, he said it was not long ago and it was two weeks. When asked about the daughter’s extracurricular activities, he listed swimming, drawing and soccer. However, his documentary evidence showed she did ballet. The applicant said he did not mention ballet because it was done at a different place. The tribunal does not accept this explanation as it was not asking where the activities were, but what activities she engaged in.  The applicant said the school started at 8am, but it starts at 8.35.[1]

    [1] >

    He was not sure of the daughter’s teachers. After some hesitation said it was Ms Q. The tribunal asked if she had any other teacher, but he did not know. The tribunal notes the applicant provided letters from the school which indicated that the daughter has had a number of teachers this year as well as Ms Q. For instance, Ms H had an injury and would not be returning to the classroom. There were two others who stood in for her (Jacq and Sam) and then a new teacher Ms Page took over from Ms H.

36. The tribunal considers his evidence about arrangements to take the daughter to school changed and lacked credibility. For instance, the applicant worked seven days a week commencing at 630am or 5am and he finished at 3pm. He said he dropped the daughter at school at 630am. The tribunal however does not accept he could be at work at 630 and drop her at school at 6.30 or 5 am.  The applicant said he gets a friend to drop her at school if he works early. However, the tribunal does not accept he could be ready to commence work at 630 and drop her off at the same time.

37. The tribunal also found the applicant’s sister’s evidence was not consistent with the applicant’s and changed in response to tribunal concerns.

38. For instance the sister said she visited the applicant in April 2015 for a week. When asked who was living him, she said he and the daughter. When tribunal expressed doubts, the sister then changed her account and said the daughter was visiting. The tribunal finds the sister’s account is inconsistent with the applicant’s evidence and statement that he was allowed no direct contact with the daughter in April 2015. It was not until October 2015 that she came to live with him. The tribunal finds the sister was not telling the truth and changing her account in response to tribunal concerns.[2]

    [2] Put pursuant to s359AA procedure

39. In his s359AA response the applicant said he asked for child to be under his care and prior to that he fully financially supported her and it is not fair as she is not a near relative.

40. The tribunal has considered the evidence but it does not accept the applicant is a reliable witness as his evidence was vague, lacking in details, lacked credibility. Further, his level of knowledge of the daughter’s situation was not consistent with a sole parent who had daily care and control.

41. At time of application on 23 April 2015, the tribunal does not accept the applicant had daily care and control of the daughter at time of application as on his own evidence he had no direct contact with her. She was with her mother and the applicant did not know the address. The daughter was not added to the application until July 2015. In his October 2015 statement he says the daughter had come to live with him. The tribunal finds at time of application the applicant’s daughter was not living with him, he had no contact with her and did not make decisions or have any say about her daily care and control.

42. The tribunal does not accept providing financial support means the applicant had daily care and control as there is no evidence that he had the power to make ordinary decisions about her, such as going to school, health or discipline, or what she ate, for instance.

43. Further and in any event, the tribunal does not accept he provided financial support to the daughter as there is no corroborative evidence of that. His evidence about how the money was paid lacked credibility, given he did not know the mother’s address, and was not in direct contact. Further, the applicant could not explain how his friend provided the money or if he knew the address.

44. The tribunal finds at time of application the applicant had a daughter, under the age of 18 years who was not wholly or substantially his daily care and control. He therefore had a near relative.

45. The tribunal also finds the daughter is not an eligible New Zealand citizen as she does not meet the definition as she could not have been in Australia before 2001 as she was not born until 2010. There is no other evidence to suggest she meets requirements of eligible New Zealand citizen.

46. The tribunal therefore finds the applicant does not meet r1.15(1)(c ).  As a result the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and therefore does not meet cl.835.212.

47. The tribunal has also considered the evidence that the daughter was added to the application in July 2015 and is a secondary applicant. It was claimed the daughter moved from the mother’s home to the applicant’s home in October 2015 to meet the visa criteria.

48. The tribunal has had regard to the policy, evidence at hearing and documents provided to the tribunal. The tribunal accepts the applicant has had some contact with the daughter, given he has some of her 2016 school correspondence and fees and there is evidence he provides some financial support in 2016.  However, having considered the documentary evidence and applicant’s evidence at hearing, the tribunal does not accept the applicant was telling the truth about the daughter’s daily care and control, school arrangements and that he had sole daily care and control. The tribunal is not satisfied the daughter was wholly or substantially in his daily care and control.  The tribunal is not satisfied he had the power to make ordinary decisions such as going to school, health or discipline. The tribunal is not satisfied the daughter is or was wholly or substantially in the applicant’s daily care and control as claimed. The tribunal is not satisfied the applicant has daily care and control of the daughter at time of decision as claimed

49. As a result, the Tribunal is not satisfied that the applicant continues to satisfy cl. 835.212 and therefore does not meet cl. 835.221.

1. The tribunal has not had regard to material on the department file which was the subject of a s375A certificate regarding requests for DNA and concerns about the ex-wife’s new partner relationship and other child as the tribunal considered it was not relevant to the applicant, this visa and the issues. As far as the concerns raised about the applicant’s adoption, the tribunal has found his adoption was legal, as confirmed by departmental enquiries at Post.

2. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. Further, there is no evidence the applicant meets the other visa subclasses as he is not of pension age and is not a carer.

   Secondary applicant

3. The tribunal finds the daughter (secondary applicant) does not meet the criteria for the visa as her father has not met the primary criteria. Further, the tribunal is not satisfied the daughter meets the primary criteria for the 835 visa on the evidence before it.

   DECISION

4. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

   Michelle Grau
   Member

   
   

   ATTACHMENT - Extracts from the Migration Regulations 1994

   1.15     Remaining relative

   (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

   (b)the other person is usually resident in Australia; and

   (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

   (i)usually resident in Australia; and

   (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

   (d)if the applicant is a child who:

   (i) has not turned 18; and

   (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2)In this regulation:

   near relative, in relation to an applicant, means a person who is:

   (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

   (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).