Le Huong (Migration)

[2020] AATA 2192

Le Huong (Migration) [2020] AATA 2192 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ly Le Huong

CASE NUMBER:  1835817

HOME AFFAIRS REFERENCE(S): BCC2016/2774470 BCC2018/6050847

MEMBER:Adrienne Millbank

DATE:29 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 29 January 2020 at 5:21pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – adult dependent child of principal applicant – financial dependency for substantial periods – study and work history in home country, third country and Australia – pay and bank records – credibility – unreliable oral evidence – enrolment in courses to appear to be dependent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.05A, Schedule 2, cls 820.311, 820.321

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 Home Affairs on 15 November 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. At the time of decision, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. In this case, the applicant is a secondary applicant.

3. The applicant was born in Vietnam on 23 August 1992 and first arrived in Australia on 8 June 2016 on a Visitor (Subclass 600) visa. She applied for the visa on 22 August 2016 as a dependent child of the principal applicant (her mother). The principal applicant’s application was refused on 10 November 2016 but remitted by the Tribunal on 17 January 2018 with the direction that she met cl.820.211 and cl.820.221 of the Regulations, and the applicant met the secondary criterion cl.820.325 of the Regulations. The Tribunal found that the sponsorship was approved by the Minister and was still in force. The Tribunal did not address the issue of the applicant’s dependency on the principal applicant.

4. Clause 820.311 requires a secondary applicant to be a dependent child or member of the family unit of the primary applicant at the time of application. Clause 820.321 requires a secondary applicant to be a dependent child or member of the family unit at the time of decision. Regulation 1.05A defines dependent.

5. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.311(a)(i). The delegate was not satisfied that the applicant was wholly or substantially reliant on her mother or the sponsor for financial support to meet her basic needs of food, clothing and shelter. The delegate was therefore not satisfied that the applicant was a dependent child of a person who had applied for a Partner (Residence) (Class BS) visa.

6. The applicant appeared before the Tribunal on 10 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother (the principal applicant) and step-father (the sponsor). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

8. The commencement of the hearing was delayed by the provision of hundreds of pages of documents by the parties’ representative, Ms Nguyen from Jack Ta Associates, just prior to its scheduled commencement. Ms Nguyen stated that her preparation of the case was delayed by the Christmas holiday period.  

9. During the hearing, the applicant confirmed that she was 23 years old at the time of application and turned 24 the next day. She confirmed that at the time of decision she is 27 years old. She confirmed that she was awarded a Bachelor in Finance (Banking) from the Hanoi University of Business and Technology in 2015. She confirmed that during the three and a half years she has lived in Australia she has not sought recognition of this qualification and has not obtained any education qualification at any level: tertiary, diploma or certificate. She confirmed that she has worked in nail salons since October 2016.

10. The Tribunal advised the applicant during the hearing that it had concerns based on the information before it that she has not been financially dependent on her mother for the reason claimed, that she has been engaged in full-time studies, and that she has worked and earned an income during her time in Australia sufficient to meet or substantially meet her basic needs.

11. The Tribunal advised the applicant that she could seek an adjournment and consult with her representative before responding to this information to or any other questions or concerns expressed by the Tribunal during the hearing. The applicant did not seek an adjournment. She acknowledged that she has worked in nail salons since 2016. She claimed she has worked on weekends, because that is when nail salons are busy and need extra staff. She acknowledged that she has also worked weekdays during busy periods such as around Christmas.

12. The applicant stated that she lacked the English ability to continue tertiary-level studies in Australia and had to change her plans. She stated that she now wants to continue her nail salon work with view, she claimed, to owning her own shop in the future. The applicant claimed that it is in pursuit of this new goal that she has enrolled in a Diploma of Leadership and Management in Brisbane from 4 March 2019 to 1 March 2020, and that on completion of this course she will enrol in a ‘beauty’ course.

13. A post-hearing submission was received on 16 January 2020 and has been considered by the Tribunal.

14. The Tribunal has considered the applicant’s claims to have been and to remain financially dependent on her mother and the sponsor, as discussed below.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Evidence was provided in the form of a certified copy of a birth certificate that the applicant is the daughter of the principal applicant.

17. The issue in the present case is whether the applicant was at the time of application and decision a dependent of the principal applicant and the sponsor. Under r.1.05A(1), to be considered dependent, an adult person must be, at the time when it is necessary to establish whether the first person is dependent on the other person and for a substantial period immediately before that time:

    Wholly or substantially reliant on another person for financial support to meet their basic needs for food, clothing and shelter; and the person’s reliance on the other person is greater than any reliance 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,

    Wholly or substantially reliant on another person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions.

18. No claim was made or information before the Tribunal that the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions.

19. At hearing, the applicant stated that she had a boyfriend in Vietnam, but claimed she has not been in a relationship since her arrival in Australia in June 2016. She claimed that she lived with her mother and step-father in Hervey Bay until February 2018, when she moved to Brisbane to live in a share house.

    Was the applicant financially dependent at the time of application and decision and for substantial periods immediately before these times?

20. At the hearing, confirmation was provided by the applicant that she was awarded her Bachelor of Finance degree from the Hanoi University of Business and Technology in 2015, and that she spent some time in Malaysia before coming to Australia in June 2016. The sponsor advised that he helped the applicant to obtain ‘work experience’ in Malaysia and that she tried working as an interpreter, but her English skills were not good enough for her to establish a career there and she had to leave the country periodically to renew her visa. The sponsor advised that his employment contract in Malaysia was not renewed in 2016, and he, the applicant’s mother, the applicant and her cousin decided to come to Australia. The applicant’s mother confirmed that her niece’s Partner (Subclass 820) visa application as a dependent family member was withdrawn, and her niece has returned to Vietnam.

21. In a written submission dated 12 April 2018 the parties’ then representative stated that the applicant started work in Australia in October 2016; that her earnings at this time, approximately AUD 300 per week, were insufficient for her basic support; and that her mother and step-father provided food, accommodation and transport for her. The applicant confirmed at hearing that she was employed as a nail technician when living with her mother and step-father in Hervey Bay. Statements of transactions were provided from the applicant’s bank account from October 2016 showing her earnings were deposited into this account. The statements show that she used her earnings in 2016 and 2017 to purchase clothes and food. They show that her claimed wages of about AUD 600 per fortnight in 2016 decreased to AUD 400 to 450 per fortnight at the start of 2017 and increased to AUD 700 per fortnight by November 2017.

22. Statements of transactions were provided from the sponsor’s bank accounts, showing he is in receipt of a Centrelink pension of around AUD 700 a fortnight as well as some superannuation. The statements before 2018 show that the sponsor paid some mobile phone costs and that he made a payment for the applicant’s medical insurance. Statements provided from the joint account of the applicant’s mother and the sponsor from 2016 to 2018 have some items of expenditure highlighted and labelled ‘food’, ‘petrol’, ‘medical’ ‘mobile’ ‘medical cover’, ‘utility’ and ‘furniture’. The Tribunal accepts that the applicant might have shared in the benefits of some of this expenditure, but does not accept that these statements demonstrate that the applicant was financially dependent on her mother and stepfather for her basic needs at the times indicated.

23. The applicant’s bank statements show no payment for rent. The Tribunal accepts that the applicant lived when in Hervey Bay in the house of her mother and step-father and that they therefore provided the applicant with accommodation at the time of application.

24. In a statutory declaration declared on 8 January 2020 the sponsor stated that when the applicant lived in his house in Hervey Bay he and her mother gave the applicant AUD 200 in cash each week ‘for her expenses’. The Tribunal finds the sponsor’s claim implausible given the applicant was earning AUD 300 to AUD 350 a week declared income in Hervey Bay, and claimed to be living rent-free. As noted the applicant’s bank statements from 2016 to 2018 show that she purchased her clothes from her earnings, and that she also used her earnings for the purchase of food and transport. The bank statements do not show weekly transfers of AUD 200 to the applicant, and the Tribunal does not accept the sponsor’s claim that he and the applicant’s mother gave the applicant AUD 200 a week in cash.

25. The Tribunal notes that the sponsor advised at hearing that he assisted the applicant to engage in some sort of employment in Malaysia, on work experience and/or as an interpreter, and that she returned to Vietnam in between periods in Malaysia. The Tribunal notes that the applicant was 23 years old at the time of her graduation in 2015 and considers that she worked and received some income after finishing her studies and before arriving in Australia in June 2016.

26. The Tribunal found the applicant evasive, hesitant and unconvincing at hearing, did not find her a reliable witness, and did not accept her claim that she has been financially dependent since her birth on her mother and since 2012 on her mother and step-father.

27. The Tribunal considers the applicant’s earnings of AUD 300 or 350 a week from October 2016 shown in her bank statements sufficient to meet her basic needs, and does not accept that the evidence shows that her mother and/or stepfather provided her with money for this purpose at the time of application.

28. The Tribunal therefore does not accept that the evidence shows the applicant was, as a matter of fact, wholly or substantially reliant financially on her mother and step-father to meet her basic needs for food, clothing and accommodation, at the time of application and for a substantial period before this time.

29. A PAYG statement for the year ending 30 June 2017 was provided showing the applicant’s gross earnings for the eight-month period 13 October 2016 to 30 June 2017 to be AUD 7,060. A payslip was provided for the period 15 January 2018 to 28 January 2018 showing that the applicant was paid AUD 17.50 per hour with AUD 3.50 loading; that for her 40 hours of employment that fortnight she received AUD 700; and that as at 2 February 2018 her year-to-date earnings were AUD 10,300.

30. The applicant advised at hearing that she pays AUD 120 a week for a room in her share house in Brisbane where she has lived since February 2018, and that her mother and step-father visit her once a month. She claimed that she was not ‘at present’ in employment, but acknowledged that she has worked in Brisbane. The statement of transactions for the applicant’s bank account for the period 27 April 2018 to 28 October 2018 show two deposits from her mother and stepfather labelled ‘rent’, one for AUD 800 and one for AUD 600. All other deposits over this period comprise what appear to be the applicant’s weekly earnings, labelled ‘Pymt’, rising from AUD 273 to AUD 330 to AUD 360.

31. The applicant’s bank statements show that she received regular weekly or fortnightly earnings from 2016 to early 2019. The last ‘pymt’ shown in the statements provided was for AUD 305 on 2 January 2019. The Tribunal does not accept the claim made in the representative’s submission of 16 January 2020 that the applicant’s earnings have not been consistent or stable. The statements provided show that the applicant’s payments have varied from AUD 273 to AUD 360 a week, but that they have been consistent.

32. The Tribunal finds, on the evidence provided, that the applicant earned an income of around AUD 600 to AUD 720 a fortnight in 2017 and 2018 and up to January 2019, sufficient to meet her basic needs for food, shelter and clothing. Based on the evidence of the applicant’s earnings, and that she paid for clothes, transport, food and (from early 2018) for rent out of her earnings deposited into her bank account, the Tribunal does not accept that she has been wholly or substantially reliant on her mother and/or stepfather to meet her basic needs for food, clothing and shelter.

33. The Tribunal notes that the statements of transactions provided from the bank accounts of the parties all showed, until 2019, irregular and sizeable cash deposits and withdrawals, in the order of AUD 1,000 to AUD 3,000.

34. The Tribunal asked the applicant about some of the purchases shown in her account from 2016 to 2018, involving significant sums, for example an AUD 480 purchase from Gucci on 30 August 2018; an AUD 620 purchase from Ssense on 7 September 2018; an AUD 499 online purchase from the Apple store on 21 December 2017; AUD 108 at the Beach House Hotel in Scarness on 30 January 2018; AUD 102 on Thai takeaway at Torquay on 2 February 2018; AUD 655 at Gucci in Brisbane on 29 March 2018; an AUD 625 purchase at Ferragamo on 29 May 2017; an AUD 403 purchase at David Jones on 20 June 2017; an AUD 545 purchase from Selfridges on 25 August 2017; an AUD 103.60 meal at China World Restaurant in Torquay on 5 September 2017; an AUD 218 purchase from Mystique Jewellers in Pialba on 12 December 2016; an AUD 292 purchase from Selfridges on 16 January 2017; and two purchases totalling AUD 508.55 from Michael Kors on 27 December 2018.

35. The applicant stated that the AUD 655 Gucci purchase was for a friend who later repaid her. She stated that the AUD 625 spent at Ferragamo was on shoes for her mother. The representative stated in her submission dated 16 January 2020 that the applicant ‘helped’ her mother and a friend to purchase goods, and that they paid the applicant back in cash. The Tribunal notes that no bank statements were provided by the applicant’s mother, and the statements provided do not show that the applicant’s mother’s nail salon earnings are deposited into the joint account she holds with the sponsor.

36. The Tribunal accepts that the applicant might have ordered goods online for her mother and a friend and received sums of cash from them, but nevertheless finds her spending behaviour from December 2016 to December 2018 supports a finding that she has not been financially dependent on her mother and stepfather.

37. The applicant’s bank statements provided to the Tribunal show that the last ‘Pymt” of AUD 315 (down from AUD 360 weekly in October and November) deposited into her account was on 2 January 2019; that since this time the applicant’s mother and stepfather have transferred AUD 400 a week into the account; and that few cash deposits or withdrawals are shown since this time. The Tribunal acknowledges that this evidence could be taken to demonstrate that the applicant is financially dependent at the time of decision and for a period immediately before. The Tribunal acknowledges that under the current definition in r.1.05A the construction of ‘dependent’ does not carry the implication of the notion of necessity or lack of choice.

38. The Tribunal did not find the applicant a credible witness in the issue of her employment and student history, and notes that the parties on their own acknowledgement have dealt in cash. The Tribunal considers the applicant may have taken earnings in cash in 2019 and 2020. The Tribunal further considers in this case, for the further reasons set out below, that if the applicant has in fact been earning nothing at all while she studies full-time for a Diploma in Leadership and Management and is dependent at the time of decision on her mother and step-father to meet her basic needs, this situation is a departure from her normal life and a contrivance for the purpose of the visa application.

    Has the applicant been a full-time student?

39. The parties claimed, as noted, in a written statement dated 6 January 2020 prepared by the representative, that the applicant has been financially dependent since attaining adulthood for the reason that she has been engaged in full-time study. In her statutory declaration of 8 January 2020 the applicant stated ‘I have been studying since turning 18 until now, so I have no ability to care for myself or live independently’. At hearing the applicant advised that her enrolment in a course of study in Australia was delayed after her arrival because she spent a few months finding her feet, and it was further delayed because she couldn’t find a provider who would accept her low IELTS score.

40. Evidence was provided and the Tribunal accepts that the applicant undertook some English classes in Malaysia. The Tribunal asked the applicant why she did not enrol in an intensive English course after her arrival in Australia if she lacked the English requirement for her to continue her studies in her chosen field as per her claimed original intention. The applicant stated that she enrolled in conversational English at the TAFE in Hervey Bay, and attended one or sometimes two sessions every week. A ‘Statement of Attendance’ was provided certifying that the applicant ‘attended training in Communication English from 7 February 2017 to 8 December 2017’. A letter was also provided from TAFE East Coast Region dated 31 January 2018 stating that the applicant attended one day a week; that she showed ‘some improvement’; but that she ‘would benefit from an intensive English class’.

1. The parties claimed at hearing that the applicant decided that instead of undertaking an intensive English course, she would work in the nail salon where her mother works, in the belief that this would improve her English for study purposes. The Tribunal found this claim unconvincing and does not accept that the applicant worked in nail salons in order to improve her English for study purposes. The Tribunal considers the applicant worked in nail salons to earn an income. The applicant further claimed as noted that she has worked mainly on weekends, or during busy months between November and February. When asked what she did during the remainder of the time when she was living in Hervey Bay and not studying, she said she did nothing. The sponsor then claimed that the applicant studied English, at home, by herself. The Tribunal found this claim unconvincing. The Tribunal notes that the applicant’s English did not improve sufficiently to enable her to study in her field of accounting.

2. The Tribunal put to the applicant that she appeared to have lacked the ability or motivation to study in Australia; that she was not a genuine student; and that she enrolled in Diploma courses from 2018 in order to appear to be dependent for the purpose of the visa application. The applicant repeated her claim that she was and is a genuine student, and claimed that she passed three units out of nine in a Diploma of Accounting course.

3. For the reason that the applicant has not obtained any qualification, even at certificate or diploma level in Australia during three and a half years of claimed full-time study, the Tribunal does not accept the applicant’s claim that she has been a full-time student.

4. The Tribunal asked the applicant how much she has saved from her earnings from 2016 to early 2019 towards her goal of setting up her own nail salon, given her claim that her mother and step-father have supported her financially during her time in Australia. The applicant stated that she has no significant savings towards this claimed goal. Further, the applicant provided no claim or evidence that she has any detailed or concrete plans to set up her own business. The Tribunal does not accept that the applicant needs or wants a qualification in Leadership and Management for the purpose of setting up her own business.

5. The Tribunal does not accept that the applicant has been financially wholly or substantially dependent on her mother and step-father for the claimed reason that she has been engaged in full-time study. The Tribunal finds, as noted, that on the documentary evidence provided, the applicant has been in employment in Australia since October 2016, and that she was in employment throughout 2017 and 2018 and up to January 2019. The Tribunal has found the applicant’s declared income over this period sufficient to meet her basic needs for food, clothing and shelter.

6. The Tribunal is concerned that the applicant is claiming to be studying at the time of decision in order to appear dependent, rather than being dependent because she is a genuine student. As noted, the Tribunal found the applicant hesitant and evasive when questioned about her study and work history, and did not find her a reliable witness. The Tribunal considers that if the applicant is, in fact, dependent on her mother and step-father at the time of decision, the parties have artificially created the circumstances of this dependency.

7. The Tribunal acknowledges that the issue to be determined is whether the applicant was as a matter of fact wholly or substantially dependent at the time of application and decision and for substantial periods immediately before these times.  The Tribunal acknowledges the Departmental policy guideline that a substantial period is twelve months.

8. The Tribunal notes that it is not bound by Departmental policy and in the circumstances of this case, where three and a half years have elapsed since the time of application; where there is no convincing evidence that the applicant has genuinely engaged in full-time study in Australia; and where the applicant has been actively engaged in employment, the Tribunal considers a substantial period immediately before the time of decision to be eighteen months or even two years. The Tribunal has found on the evidence provided that the applicant was employed from October 2016 to January 2019, and that she earned sufficient income during 2018 (and during previous years) to meet her basic needs of food, clothing and shelter. Therefore, the Tribunal finds that the applicant was not for a substantial period immediately before the time of decision financially dependent on her mother and step-father.

9. For the above reasons the Tribunal does not find that the applicant was at the time of application, and had been for a substantial period immediately before that time, financially dependent on her mother and step father; and does not find that she was financially dependent on her mother and step-father for a substantial period before the time of this decision.  

10. Therefore, the applicant does not meet cl.820.311(a)(i) or 820.321.

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

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Adrienne Millbank
    Member