DUONG (Migration)

[2020] AATA 4815

DUONG (Migration) [2020] AATA 4815 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Quynh Huong DUONG

CASE NUMBER:  1819564

DIBP REFERENCE(S):  CLF2016/62442

MEMBER:Kira Raif

DATE:31 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 31 August 2020 at 9:39am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – reasonable period of dependency before application – wholly or substantially reliant on the sponsor – applicant self-funded in previous Visitor visa applications  – applicant sold charitable medical clinic – other sources of financial support – applicant’s condition didn’t affect her capacity to work – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; rr 1.03, 1.05
Social Security Act 1991

CASES

Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576

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 June 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in July 1949. She applied for the visa on 7 October 2016. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant was a dependent relative of her Australian relative. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 27 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. To be granted a Subclass 838 visa the applicant must be a ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

7. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the  Social Security Act 1991.

8. The definition of ‘dependent’ as it applies to this application is set out in r.1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

9. For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

   Is the applicant an aged dependent relative of an Australian relative?

10. The applicant is sponsored by her niece and the Tribunal is satisfied she is a relative of an Australian relative. The applicant claims that she never married and she provided a certificate from the local authority with her primary application evidencing that. The Tribunal is satisfied the applicant does not have a spouse and she meet subparagraph (a) of the definition of the ‘aged dependent relative’. The applicant was born in July 1949 and at the time of the application she was 67 years of age. The Tribunal is satisfied the applicant was old enough to be granted an aged pension under the Social Security Act 1991. Subparagraph (c) of the definition of ‘aged dependent relative’ is met.

11. The issue is whether the applicant is, and was at the time of the application, dependent on her Australian relative.

    Primary decision

12. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The sponsor provided a statutory declaration in which she stated that her father used to give money to the applicant (his sister) and since he passed away in 2011, his wish was that his children would support the applicant. The sponsor stated that she has been providing financial support to the applicant since 2012. She had invited the applicant to Australia every year, the applicant stayed with her and she gave money to the applicant to cover her expenses, on average $200-300 a month. The sponsor claimed that she gave the applicant $17,500 between February 2013 and January 2016. The application included the sponsor’s bank statements which showed cashback withdrawals for the periods when the applicant was in Australia. However, the delegate noted that some of the withdrawals also occurred when the applicant was not in Australia and there were withdrawals when the applicant was in Australia but the money did not appear to have been provided to the applicant. The delegate found that such withdrawals cannot evidence the sponsor’s financial support for the applicant as the withdrawn funds could have been used for any purpose.

13. The delegate noted that in all her previous visa applications, the applicant claimed that she was self-funded and that she was an owner of a private clinic and working as a doctor until her application in 2015. It is noted that in the 2015 application the applicant claimed she had access to VND700 million (about AUD40,000) and it was therefore unnecessary for her to rely on the sponsor. The applicant also claimed to have been self-funded in the 2016 application. The delegate noted that such claims contradicted the applicant’s present evidence that she had limited income since 1993 and no savings.

14. The delegate sought further information from the applicant. The applicant provided a further statement in which she claimed that she opened the clinic in 1993 and worked as a doctor until 2014 and provided free consultations, her clinic was small and with very limited number of patients. The applicant stated that she lived with her mother who is deceased that her brother supported her until his death in 2011 and since that time her only source of income is her niece who gives her $3000 – 5000 pa to cover her costs. The applicant claimed that a supporter lent her VND 900 million with no interest which was used for the clinic and the left-over amount was kept in her savings account and shown in her visitor application. The applicant stated that she sold her clinic for VND 500 and repaid VND 850. The applicant presented a number of documents, including a taxation receipt, confirmation that she was not in receipt of a pension, evidence of the sale of the house where the clinic was operating, evidence of property ownership in her mother’s name and other materials.

15. The delegate noted that even though there was evidence of the sale of the clinic, there was no evidence that the money she gave to another person was the repayment of a loan. The delegate also noted that the applicant had not demonstrated how she obtained VND 900 million to repay the loan if she sold the clinic for VND500 million and received a small donation. The delegate also noted that the applicant provided evidence that her mother owned a house where the applicant lived with her mother until the mother’s death in June 2016 and there was no indication that he house was sold and, if so, where the funds are from the proceeds of the sale.

    Dependence

16. The applicant provided written evidence to the Tribunal on 24 July 2020. It is unclear to the Tribunal why the applicant did so one working day before the hearing, given that her case has been with the Tribunal since July 2018, for two years prior to the hearing. The applicant was represented by Mr Robert Liu.

17. The applicant provided a statement from the sponsor who states that her father had always helped his younger siblings and helped her aunt financially, particularly around 1993 when her aunt (‘the applicant’) set up her own clinic to do charity work. The sponsor states that the applicant visits Australia regularly and her father gives her money for her living expenses in Vietnam during each visit and extra money to help charity work and her father encouraged her to help the applicant. the sponsor states that before her father passed away, he told his children to support and look after the applicant and they promised to do so. Since his passing, the sponsor states she has taken on the responsibility to provide financial support to the applicant for her living expenses. The sponsor states that when the applicant opened her clinic in 1993, her father gave her the initial capital to buy the property for the clinic and all of the applicant’s living expenses since 1993. The applicant’s living and travel expenses were paid by the sponsor’s father. She states the clinic was well known to provide charity medical care to poor people and the operating expenses for the clinic came mainly from donations and from her father.

18. The sponsor states that she provided bank statements with the application to show money given to the applicant. The sponsor explained other transactions shown on her bank records, stating that the funds were given to other relatives. With respect to the property in Vietnam, the sponsor states that the property is registered in her grandmother’s name and it has always been used as the official address by her aunts and uncles in Vietnam. The property has not been sold and is used as a family meeting place and is otherwise vacant. The sponsor states that the applicant was fully dependent on her for three years before the application was made. The applicant included with that submission evidence relating to property ownership, as well as evidencing supporting her claim that she had given money to other relatives.

19. The Tribunal took oral evidence from the applicant’s friend Ms Nguyen. Ms Nguyen told the Tribunal in oral evidence that she is a close friend of the applicant. Ms Nguyen spoke of the applicant’s good character and referred to the applicant operating a charity clinic in Vietnam. Ms Nguyen told the Tribunal she lent VND 500 million and later another VND 400 million. In 2015 the applicant returned VND 700 million to Ms Nguyen, stating that she felt she was becoming too old to manage the clinic and Ms Nguyen told the applicant not to worry about the remaining debt of 50 million VND. Ms Nguyen said there are no documents regarding the transfer because it is common practice in Vietnam to deal in cash and they were close friends. She said there are no records of money withdrawal because it is common practice not to keep cash in the bank. While the Tribunal accepts that Ms Nguyen may have had substantial savings and the Tribunal is also prepared to accept that certain transactions, and certain amounts of transfers may occur in cash, the Tribunal does not consider it plausible that it is possible to move VND 900 million (over AUD50,000) without any paper trail whatsoever. The Tribunal is not prepared to accept the evidence that Ms Nguyen lent that amount to the applicant and that the loan was later repaid by the applicant to her friend.

20. Ms Nguyen told the Tribunal that the applicant did not make much from the clinic and that she was supported by relatives in Australia but she also told the Tribunal that she was not familiar with the applicant’s financial circumstances. In such circumstances, the Tribunal does not give weight to Ms Nguyen’s evidence about the applicant’s dependence on her relatives in Australia. If she does not have familiarity with the applicant’s finances, the Tribunal finds this witness’ evidence about the applicant’s financial circumstances unhelpful.

21. Ms Nguyen told the Tribunal that the clinic was very small and only served the local community and did not make any profit. Ms Nguyen told the Tribunal she was unaware of what happened to the clinic before the applicant moved to Australia but she thought the clinic was sold. When asked how it was possible to sell the clinic which was not profitable, Ms Nguyen stated that it was the land on which the clinic was located which was valuable because of its location. Ms Nguyen was not sure how much the clinic sold for. Ms Nguyen spoke of the applicant’s good character and the Tribunal accepts that she believes the applicant to be an honest person of good character.

22. The applicant told the Tribunal that until her arrival in Australia in 2016 she lived with her mother and later by herself with a domestic helper. The property belonged to her and her name was on the title deeds. The applicant said that she bought the property in 1993 for $10,000 with the money given to her by her brother. She sold the property in February 2015 for 500 million VND because she decided to move to Australia to live with her niece. She used the money to repay the debt as the clinic was also run from this property.

23. The applicant’s evidence indicates that she fully owned the property where she lived before migrating to Australia. There is no suggestion that it was co-owned and even though the property was purchased with the funds provided by the applicant’s brother, there is no evidence that he, or anyone else, had any involvement with the property or any claim to it. In such circumstances, the Tribunal is not satisfied the applicant relied on the sponsor for financial support for shelter before the sale of the property in 2015. In the Tribunal’s view, dependence requires reliance for all three elements of food, shelter and clothing. It is not sufficient if only two of the elements are met. The Tribunal finds that the applicant was not reliant on the sponsor for shelter until at least February 2015 while the present application for the visa was made in October 2016. The Tribunal does not consider the period of 20 months to be a substantial period or a reasonable period. The Tribunal is not satisfied the applicant relied on the sponsor for shelter for a substantial period before her application was made and that would disqualify her from meeting the dependence definition at the time of application. The Tribunal is not satisfied the applicant meets paragraph (a) of the definition of ‘dependence’.

24. Having made that finding, it is not necessary for the Tribunal to consider other elements of the definition of dependence in paragraph (a) but the Tribunal makes the following observations.

25. The applicant told the Tribunal that the clinic she operated in Vietnam did not make any money and she worked for the joy of helping other people. She then said that the clinic only made about $2-4 a day, just enough to cover the overheads, and there were no taxes paid. The applicant said that this was always the case and the clinic never made any profits. She never claimed any income or salary from the clinic. Following the hearing, the applicant provided to the Tribunal further evidence, including evidence relating to her clinic. This included her business registration and license, evidence of tax exemption, statements from colleagues and patients and other materials.

26. The applicant told the Tribunal she made five or six visitor visa applications to come to Australia. She said that in these applications she presented a savings certificate from the bank. She had borrowed money to deposit in the bank to show the evidence of savings and it was her money. The applicant said that she did not make any claims about income from the clinic when making the visitor visa applications and she was not asked about such income and she only presented her savings certificate. The Tribunal read to the applicant from her 2011 Visitor visa application in which she stated that she is a doctor operating her own clinic and that she earns enough to fund herself. (This information was subsequently put to the applicant pursuant to s. 359A of the Act.) This contradicts the evidence given for the purpose of this application where the applicant has consistently claimed that she had no earnings from the clinic and was fully reliant on the sponsor.

27. In her post-hearing written submission to the Tribunal of 28 August 2020 the applicant states that when claiming she did not derive any personal income from the clinic, she meant that she did not earn any livelihood from the clinic which was ran for charity as the income from the clinic was too small and barely enough to cover the expenses of the clinic. The applicant states that when applying for the visitor visas, she referred to earning enough money from the clinic but that was the money given to her by her brother and niece. (In the Tribunal’s view, that is not consistent with the information supplied in the visitor visa application where the applicant refers to earning enough money from the clinic and not from relatives.) The applicant states that she borrowed money from others and culturally, considered these funds as her own. When somebody helped her complete the form for the Visitor visa application, she said that she had the clinic and that she had the money. The Tribunal does not accept that explanation. The applicant expressly referred in her visitor visa application to earning enough money from the clinic, there is no mention of operating an unprofitable clinic and having borrowed funds in her bank account. In the Tribunal’s view, the applicant had deliberately answered the questions on the visitor visa application form with the intention of creating the impression that she was operating a successful and profitable clinic and had own savings because she believed that information would assist her in the visitor visa application. Having now decided that different evidence would be useful in the present application, the applicant is now presenting different, and in the Tribunal’s view, inconsistent evidence concerning her financial circumstances. The Tribunal does not accept there was any misunderstanding of the forms or any cultural misunderstandings.

1. The applicant also repeatedly told the Tribunal that when making Visitor visa applications, she relied on the savings in her account. She then confirmed the Tribunal that the savings were money borrowed from Ms Nguyen and not her own funds. This is consistent with the applicant’s written submission to the Tribunal in which she stated that the money in her savings account were borrowed funds. The applicant’s niece Ms Duong also told the Tribunal that the money in the applicant’s bank accounts were partly funds borrowed from a friend and partly savings from the money sent by the applicant’s brother. Ms Duong told the Tribunal that even though the applicant had borrowed the funds, she believed the funds were her own but the Tribunal does not accept that evidence.

2. In her written submission to the Tribunal of 28 August 2020 the applicant states that she received money from her brother and niece and she initially used the borrowed funds for the clinic and later for her own needs and she considered these funds to be her own.

3. The Tribunal does not accept the applicant believed the borrowed funds to be her own funds, as the applicant would have been aware of the need to return the funds to her friend. The applicant’s evidence suggests that she relied on funds that were not in fact her own in support of the visitor visa application and misleadingly claimed these funds to be her own. Again, it appears that the applicant had been deliberately misleading, either in her Visitor visa application when she claimed to have own funds in her account which she now claims were not in fact her funds, or in her present application when she claims she had no savings.

4. The Tribunal has formed the view that the applicant is willing to provide whatever evidence she believes would assist her in her visa application. The Tribunal has formed the view that the applicant is not a person of credibility and the Tribunal does not accept her evidence in relation to her financial affairs.

5. The Tribunal accepts that the sponsor has provided funds to the applicant and these are evidenced through various transfers.  However, the Tribunal does not accept the applicant’s evidence that she had no other income and had been dependent on the sponsor, and previously her brother, with no other source of financial support. The Tribunal has formed the view that the applicant’s evidence is not reliable and that her claims are opportunistic. Thus, while the Tribunal accepts that the sponsor has provided financial support to the applicant, the Tribunal is not prepared to accept that the applicant had no other income or source of support, including income from her clinic. The Tribunal is not satisfied that until 2015 when the clinic was sold, the applicant derived no or very little income from it. The Tribunal is not satisfied that when the application was made, and for a substantial and a reasonable period at that  time, the applicant’s reliance on the sponsor for her basic needs was greater than her reliance on any other source, such as income from employment. For that reason also, the Tribunal is not satisfied the applicant meets paragraph (a) of the definition of dependence.

6. The Tribunal has considered whether the applicant is incapacitated. The applicant has not claimed incapacity in her primary application and prior to the Tribunal hearing. The applicant told the Tribunal in oral evidence that she is a disabled person but has no disease. She finds movement difficult. The applicant states that she has been incapacitated for many years and has limited movement. In her post-hearing submission the applicant presented a medical certificate from Dr Lam dated 17 August 2020. It refers to the applicant suffering from poliomyelitis since the age of 2-3 and states that she is house-bound and cannot live independently. The Tribunal accepts that evidence, but it does not establish the applicant’s incapacity for work at the relevant time. Dr Lam does not state that the applicant is incapacitated for work, nor does Dr Lam address the applicant’s past employment. The fact that the applicant may be house-bound and unable to live independently in August 2020 when the report was prepared does not assist the Tribunal in determining her circumstances when the application was made.

7. While the Tribunal accepts the applicant’s evidence concerning her health, the Tribunal is mindful that despite her condition, the applicant has been able to complete her training as a doctor and to work as a doctor for a number of years, first in a clinic and subsequently self-employed. Her own evidence is that she worked in a hospital and also ran her own clinic until 2015. While the Tribunal accepts that the applicant’s condition affected her ability to move, the Tribunal is not satisfied that the applicant’s condition affected her capacity to work. The Tribunal is not satisfied on the evidence before it that when the application was made, the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions. She does not meet paragraph (b) of the definition of ‘dependence’.

8. Further, for the reasons stated above, the Tribunal does not accept the applicant’s evidence concerning her financial affairs. The Tribunal is not satisfied that the applicant was, at the time of application, wholly or substantially reliant on the sponsor for financial support. For that reason also, the Tribunal does not consider the applicant meets paragraph (b) of the definition of ‘dependence’.

9. The Tribunal is not satisfied the applicant was a dependent relative of the sponsor at the time of the application and she does not meet cl. 838.212.

10. The application was not accompanied by the Carer certificate and the Tribunal finds that the applicant did not make a valid application for a Carer visa. She did not claim to be a carer of another person and would not meet the requirements for the grant of a Carer visa. The applicant stated on the application form that she has several siblings in Vietnam. The Tribunal finds that she is not entitled to the grant of the Remaining Relative visa.

    Conclusion

11. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 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.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member