Le (Migration)

[2022] AATA 5195

Le (Migration) [2022] AATA 5195 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Minh Hoa Le

REPRESENTATIVE:  Mr Li Dennis Shen

CASE NUMBER:  2102919

HOME AFFAIRS REFERENCE(S):          CLF2015/21100

MEMBER:Peter Vlahos

DATE:3 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl 838.212 of Schedule 2 to the Regulations.

·cl 838.221 of Schedule 2 to the Regulations.

This Statement was made on 3^rd August 2022 at 3.00PM.

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Federal Circuit Court remittal – aunt of the sponsor – dependency requirements – wholly or substantially reliant on financial support to meet basic needs – periodic but consistent money transfers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.05A; Schedule 2, cl 838.212, 838.221

CASES
Huang v MIMIA [2017] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Vo v Minister for Home Affairs [2019] FCAFC 108

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 and Border Protection on 27 November 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 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 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.

3. The delegate refused to grant the visa on the basis that cl 838.212 was not met because the delegate was not satisfied the evidence before him established that the applicant met the dependency requirements, as provided for in reg. 1.05A.

4. On 25 February 2021 this matter previously heard and determined by the Tribunal (differently constituted) (case file no. 1731752)[1] was remitted to the Tribunal by order of the Federal Circuit Court because the Tribunal had caused a jurisdictional error by failing to consider relevant evidence and claims in the applicant’s submissions of 9 September 2020, in relation to the applicant’s sale of her business and in particular, the contract of sale dated 20 September 1996. This evidence was considered by the Court as important to the applicant’s claims and the Tribunal’s exercise of jurisdiction: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [55].[2]

   [1] Decision no 1731752 determined by the Tribunal on 15 September 2020.

   [2] see Court Order (Federal Circuit Court) dated 25.02.2021 in the AAT File.

5. 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 video, 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 conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant, Ms Thi Minh Hoa Le appeared before the Tribunal by way of telephone on 3 March 2022 to give evidence and present arguments.

7. The applicant was represented at the hearing via telephone by her solicitor, Mr Dennis Shen, Senior Associate, LH & Associates, Barristers and Solicitors.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant Law

10. 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 dependant 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).

11. 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.

12. 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.

13. The definition ‘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).

14. 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 [2017] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.1.05A does not carry any implication of the notion of necessity or lack of choice in r.1.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

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

15. The applicant claimed in her application that she had never been married. There is nothing to contradict that evidence. The Tribunal is satisfied the applicant does not have a spouse and she meets subparagraph (a) of the definition of ‘aged dependent relative’. The applicant was born in March 1950 and was 65 years of age when the application was made (she is now 72 years of age). The applicant is old enough to be granted an aged pension under the Social Security Act 1991. Sub-paragraph (c) of the definition of ‘aged dependant relative’ is met. The issue is whether the applicant is a dependent relative of her Australian relative when the application was made.

    Primary decision

    The Delegate’s decision

16. The applicant provided the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be dependent on the sponsor with evidence of seven money transfers between October 2009 and March 2015 ranging from $1500 to $4200, as well as evidence of funds transferred to the secondary applicant who was initially included in the application. The delegate noted that that there was no evidence that such funds were for the applicant’s basic needs. The applicant stated that she retired in 2008 due to medical issues and that the sponsor has been providing financial support to her since that time. The applicant stated that she does not have savings and relies on the funds provided by the sponsor for her daily expenses. The applicant states that the culture in Vietnam is to rely on cash and there were no receipts, bank statements, lease agreements or other records. The applicant states between 2005 and 2010 she lived with her nephew who helped her with accommodation and since 2010 her nephew accepted her contribution to share the rent and household bills.

17. The delegate wrote to the applicant noting that in her previous visitor visa applications the applicant provided evidence of a bank account in Vietnam with a balance of VVND 300 million and that she also provided evidence of land ownership and ownership of a factory in her previous application. In response, the sponsor claimed that the applicant had a balance of VND 300 million (about $15,000.00) in her savings account. Of these funds, $6,000.00 were from the sponsor and her family in Australia and the remainder of the funds was from relatives in Vietnam and the money was used for the applicant’s airline tickets and to pay back relatives in Vietnam. The delegate noted that the applicant failed to provide any documentary evidence to support these claims, such as bank statements, savings, or evidence that money previously shown in the visitor visa application was not hers. With respect to land ownership, the applicant stated that the land was brought by her nephew and he asked her to temporarily represent him in land ownership due to marriage matters. While the land was in the applicant’s name, she did not receive any financial benefit and the land ownership would be transferred back to her nephew in accordance with the contract which the applicant presented.

18. The delegate noted that contrary to the applicant’s claims, there is a pension system in Vietnam and the applicant had not explained why she was not eligible for a pension. The delegate noted that the applicant had provided evidence of money transfers and could not evidence her claims that the sponsor sent her cash. The delegate noted that the applicant failed to provide bank books, despite providing these for the visitor visa application. Ultimately, the delegate was not satisfied the applicant was dependent on the sponsor for the requisite period.

    Dependence

19. The applicant’s legal counsel provided a written legal submission to the Tribunal dated 28 February 2022 and a further submission on 21 March 2022 which concerned the question of a Certificate which had been issued by the Department pursuant to s.376 of the Act. The Tribunal will deal with that submission later in this decision.

20. In the applicant’s submission dated 28 February 2022, the sponsor claimed that consideration must be given to the circumstances as a whole including the nature of her relationship with the applicant, cultural differences, and her age. Indeed, the Tribunal accepts that consideration must be given to the circumstances in their entirety and to specific matters which affect both the applicant and sponsor, and the Tribunal is also cognizant of the fact that it is up to the applicant to satisfy the Tribunal that she meets the criteria for the visa in question which is being sought to be granted.

21. The main gist of the applicant’s submissions provided to the Tribunal are summarised as follows:

    §The sponsor has provided evidence of multiple monetary transfers to the applicant, and to members of the applicant’s family who resided in the same address. Evidence has been provided of a range of periodic but consistently scheduled money transfers between the periods of 2009 and 2015 from the sponsor to the applicant, the applicant’s niece Tuyet Thanh Le (“Tuyet”), and to the applicant’s nephew Hoang Phuong Le (“Hoang”). The amounts transferred have been in vicinity of thousands of Australian dollars each time, and there was a total of about 11-12 transfers in the period.

    §The sponsor has stated that she has provided cash in person to support the applicant whenever she has returned to Vietnam to visit. Passport stamps of the sponsor’s return trips to Vietnam between 2008 and 2013 have been provided.

    §Evidence by way of an official Household Registration Book has been provided which verifies that the applicant, Hoang, Tuyet and a number of other family members were residing together at 25 Street No 23, Block 8, Binh Tri Dong B Ward, Binh Tan District, Ho Chi Minh City (for ease of reference, to be referred to from now on in this submission as “25 Street Binh Tan”).

    §The property of 25 Street Binh Tan was owned by Tuyet at the time when the applicant and other family members were living there. A contract of property sale dated 22 October 2014 identifying Tuyet as a party to the sale has been provided to the Tribunal already.

    §Evidence of Tuyet’s medical report has been provided to the Tribunal which verifies the long-standing physical health problems and illnesses that Tuyet has suffered which rendered her unable to support the applicant financially and further substantiating the financial support she herself has needed to receive from the sponsor. As Tuyet was reliant on others for her financial needs, the mere fact that the applicant was living in a home owned by her did not necessarily mean she could have financially supported the applicant.

    §Hoang has provided statements and declarations that he was injured in a motor vehicle accident and out of work for a period of time, as well as supporting a family since 2012, and hence was unable to offer substantial financial support to the applicant despite living at the same residence. He has provided a marriage certificate and a birth certificate as proof. He has claimed to also have relied on the sponsor to an extent for financial support, and it is relevant to refer to the international money transfer evidence again which confirms that a transfer made by the sponsor dated 3 February 2013 was addressed to Hoang as a beneficiary on that occasion rather than to the applicant or Tuyet.

    §Evidence has been submitted that the financial support provided by the applicant, based on the standards of living in Vietnam at the time, would have been more than sufficient to cover the living expenses of multiple individuals, including the applicant’s basic living expenses. Evidence extracted from the General Statistics Office of Viet Nam in conjunction with Oanda Currency Convertor VND to AUD extracts for the periods of 2012-2015 would indicate that the cumulative value of the money transfers made by the sponsor over the period of 2009 – 2015 would have comfortably covered the whole or substantial portion of the applicant’s basic living needs such as food, shelter, and clothing. Incidentally, it would have provided substantial assistance to the applicant’s other family members living in the same household at 25 Street Binh Tan as well, as per the statements made by those family members. This is aside from the sponsor’s claims that additional cash was provided to the applicant and the household during the sponsor’s visits to Vietnam, but for which records are not available. It should be noted however that whether or not those claims are accepted, the international fund transfers and their scope of financial coverage of support is indisputable.

    §It is submitted that it is reasonable to rely on the independent General Statistics Office of Viet Nam evidence for an indicative estimation of the applicant’s expenses in the years preceding the time of application. The applicant has claimed that she utilised cash for the majority of her spending needs, and independent evidence had been provided about Vietnam being a predominantly cash-based society at that time. As such, it is difficult for the applicant to prove her expenses prior to 2015. The applicant has been open and honest about the fact that her expenses for the period prior to 2015 are difficult to prove because of lack of records and rather than fabricating answers or venturing to provide nominal or vague estimations on figures for her living costs at that time, it may be more relevant to refer to official Government-collated records of the median cost of living for Vietnamese nationals, with the expectation that the cost of essential and basic needs such as food, clothing and shelter, will unlikely have deviated significantly from the median to the extent that the sponsor’s financial assistance could not have covered them.

    §The applicant has provided substantive evidence that from the time of application, she has lived with and been wholly supported by the sponsor since that time to date. This is verified by evidence of bank statements held by the sponsor, evidence of health insurance paid by the sponsor, evidence of the applicant’s residency address at the same address of the sponsor, and other related evidence. There has been no dispute that the applicant has been fully supported by the sponsor post-lodgement.

    §The evidence referred above points directly support the notion that the applicant relied wholly or substantively on the sponsor for a reasonable period prior to time of application. It further goes towards the fact that the sponsor has been providing evidence not only of financial support for the living expenses of the applicant, but also of the household. This is supported by statements and statutory declarations provided by the sponsor, Hoang, and a number of other witnesses. Point 8 refers to the fact that the time of applications continue to be met, as per cl. 838.221, and also provides credibility to the applicant and sponsor’s claims as it demonstrates the consistency of the nature of the relationship between the applicant and the sponsor and substantiates the fact that the sponsor has been financially supporting the applicant for an extended period across many years and continues to do so. Given that the applicant is fully being supported by the sponsor indisputably from her arrival in Australia in 2015 to date, it  is not unreasonable to presume that this financial support did extend earlier for a number of years as the applicant and the sponsor claim, and it would in fact be more implausible to presume that the claims of earlier support were fabricated and that the sudden proffering of exclusive financial support from the sponsor to the applicant in the past 7 years materialised abruptly without any preceding instances or pattern of an existing relationship.

22. The applicant described her relationship (family) to her sponsor, as the ‘aunt’ and the sponsor as ‘the niece.’

23. The applicant told the Tribunal that she has been in residence in Australia since May 2015.

24. The applicant also told the Tribunal that she had returned to Vietnam (only for a brief period) in July 2017 in order to organise some ‘real estate matters’ concerning her niece.

25. The Tribunal noted for the record the previous reports submitted concerning the applicant’s health and the applicant confirmed for the Tribunal that her health issues are continuing as previously reported and told the Tribunal that she suffers from diabetes. The applicant is currently receiving medical treatment for her health issues while in Australia.

26. The Tribunal then asked the applicant about her employment history.

27. The applicant told the Tribunal that between the years 1992-1996 she owned a “mechanical workshop” (the applicant’s description to the Tribunal) which produced “ice-cubes’ for beverages sold in the open market. The applicant described this business as a reasonable earner of income for her at that time period but after 1996 real issues surfaced. The applicant said that her business was not “that competitive’ and sold it to another person.[3] Thereafter, (after 1996) she worked as a local seamstress and was also involved in a local eatery until she retired in 2008.

    [3] see submission in AAT File

1. The applicant told the Tribunal between 1996-2008, she supported herself with the savings she had accumulated from the sale of her business, and work as a seamstress and at the local eatery. However, when her funds depleted and ran-out, her support came only (financially) from her niece.

2. The applicant told the Tribunal, that her niece sent her money so as to provide her with the necessities of life. The Tribunal noted the already submitted evidence concerning money remittances sent to the applicant. There were seven money transfers from the sponsor:

   1.Dated 07/10/2009 from Nhu T Le to the applicant - $2500.00

   2.Dated 31/03/2010 from Nhu T Le to applicant - $1500.00

   3.Dated 22/06/2010 from Nhu T Le to the applicant - $2000.00

   4.Dated 10/09/2014 from Lisa T L to the applicant - $3800.00

   5.Dated 10/11/2014 from Lisa T Le to applicant - $4200.00

   6.Dated 04/03/2015 from Lisa T Le to applicant - $2220.00

   7.Dated 11/03/ 2015 from Lisa Le to applicant - $2500.00

3. The applicant confirmed that these substantial amounts provided to her at the dates recorded were amounts of money provided for her own personal needs at the time.

4. The sponsor on her part reiterated the point made on previous occasions to the Department and to the Tribunal (differently constituted) that due to cultural considerations money to an elderly person must be provided with care and that she was able to despatch funds twice in 2010 and in 2011, and in 2013 she provided money to the applicant personally, during her visit to Vietnam also. In 2014 and 2015 she transferred a yearly amount to the applicant. In earlier years, the applicant lived with the sponsor’s brother and the sponsor partially supported her accommodation while in later years, the support, the Tribunal was told (also see the written submission dated 28/02/2022), had increased. The sponsor told the Tribunal that the applicant had currently no independent means to provide herself with the necessities of life or to provide accommodation for herself. The Tribunal was told that all the applicant’s funds had been used and has no independent means of providing for herself the necessities of life.

5. The Tribunal was told that while the applicant has been resident in Australia since 2015, all of her costs associated with her continuing health problems, accommodation and daily requirements and needs have been provided for by her sponsor. The applicant described her current situation as being ‘totally dependent’ on her niece.

6. The applicant was asked, if she was to return to Vietnam in the future what awaited her there? The applicant said that ‘she had no one in Vietnam to look after her. The applicant went on to explain to the Tribunal that she had remained in Australia for a considerable period of time, and previously when in Vietnam, the applicant said she also could work and that assisted with meeting her costs (worked as a seamstress) and she also was provided in 2015 with the amount of AUD$4,000 (money sent to her to Vietnam) by her niece. This situation was (according to the applicant) possible on her part – first, because of her age and second, because of her current health situation.

7. The Tribunal also noted that in a previous hearing of the applicant’s matter before the Tribunal (differently constituted) the applicant had told the Tribunal that she had made visa applications in 2007, 2012 and 2015 and was granted visas on each occasion. The applicant had said that in these applications she told the Department that she had property and savings and that information was correct. The applicant confirmed for the Tribunal in the previous hearing that her nephew brought a piece of land and she had contributed 50 million dong to the total property value of 850 million. Her name was placed on the title in 2011 because her nephew respected her and loved her. In 2015 she transferred the title into her nephew’s name. The applicant said (on that occasion) that the government was going to buy that land and that the nephew is still waiting for compensation. The applicant provided the then Tribunal with evidence relating to the transfer of the property.

8. The previous Tribunal concluded that on land-owning issue as well as others the applicant had willing provided false or misleading information. Evidence was submitted to the Tribunal in this instance which explained that Hoang offered the applicant the right for her name to be included on the certificate of the land. It was further submitted that the land in question was an undeveloped plot of land and remained undeveloped and had been transferred back to Hoang in July 2017. It was submitted by the applicant’s counsel that no adverse inference could be drawn from this transaction because (1) the land was not developed, (2) no rental or benefit had been accrued in money benefiting the applicant directly and even though that being the case, the land was now not the applicant’s – it has been transferred to another person. Hence, given that the land was not dealt with in any way to have accrued income or profit, or sold or otherwise disposed it had provided no benefit to the applicant for her necessities and living expenses. It was also suggested that even if the land was legally owned unconditionally by the applicant, following the reasoning in Huynh, there was no requirement for the applicant to been required to dispose of the land (asset) and then relied on the proceeds of her sponsor in order to be considered as a dependent for the purposes of reg. 1.05A. Indeed, the evidence before the Tribunal shows a consistent dependence on the sponsor by the applicant and that dependence has not lessened with the passage of time. In particular, the Tribunal accepts that in the present, the applicant has no substantial means in money enabling her to subsist without the intervention substantially by others.

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

9. To be granted as subclass 838 visa the applicant must be an ‘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’ is defined in reg 1.03 of the Regulations.

10. Broadly speaking, a person will be granted an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 1.03; they do not have a spouse or de facto partner; they have been dependent on an 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 (Cth).

11. The Tribunal notes that the applicant has previously provided the Department and now the Tribunal with a range of personal information pertaining to the sponsor, and her citizenship.[4]

    [4] see Department File -documentation referenced to the Aged Relative visa application.

12. The Tribunal is satisfied on the evidence before it that the applicant is the aunt of the sponsor (niece), and Australian citizen. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212 and cl 838.221.

13. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and time of decision.

    Is the applicant dependent on the Australian relative?

14. The definition ‘dependent’ as it applies to the application is set out in reg 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: see, reg. 1.05A(1).

15. For the purposes of this application, reference to a ‘substantial period’ in reg 1.05A means a period not more substantial than a ‘reasonable period’: see, Huang v MIMIA [2007] FMCA 720 at paragraph [47].

16. There is no claim before the Tribunal that the applicant is wholly or substantially reliant on the sponsor for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions (see: reg 1.05A(1)(b). Written submissions prepared by the sponsor indicate that the applicant suffers from various illnesses and certain age related health issues.[5] The Tribunal found the applicant’s presentation consistent with this claim.

    [5] see, written submission provided to the AAT on file

17. As to whether the applicant is dependent on her Australian relative within the meaning of reg 1.05A(1)(a), the Tribunal is mindful that Departmental guidelines (PAM3) interpret a ‘reasonable period’ in this context being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from their Australian relative. However, the Department’s policy interprets ‘substantial period’ as being a period of ‘at least 12 months’. The Tribunal notes that this is one interpretation of the term ‘substantial period’ but also notes the decision of the Full Court in Huang v MIMIA [2007] FMCA 720 at [47] and its interpretation of a ‘substantial period’ of being not more substantial than a ‘reasonable period’. The Tribunal notes the challenges in reconciling these different interpretations, including the finding in Huang v MIMIA that the term ‘substantial period’, which the Court noted need not be lengthy. In light of the differing interpretations and contradictions in approach, the Tribunal considers that in the present case, 12 months prior to the application is a substantial period which is reasonable in the circumstances.

18. The Tribunal accepts from the evidence the sponsor has provided – that is, evidence of multiple monetary transfers to the applicant and to the members of the applicant’s family who resided at the same address (in Vietnam). Evidence was provided of a range of periodic but consistent money transfers between the periods of 2009 and 2015 from the sponsor to the applicant, the applicant’s niece Tuyet Thanh Le, and to the applicant’s nephew Hoang Phuong Le.[6]

    [6] The Tribunal noted that the amounts transferred have been in the vicinity of thousands of Australian dollars each time and that there was a total of 11-12 transfers in the period.

19. The Tribunal also noted the sponsor’s claim that she provided ‘cash in person’ in order to support the applicant when she returned to Vietnam to visit family and friends. The Tribunal noted the evidence submitted by the sponsor being ‘passport stamps’ of the sponsor’s return trips to Vietnam between 2008 and 2013 and the Tribunal accepts the point made in the submissions provided that on these occasions the applicant was provided with cash (monetary) support by her sponsor.

20. The Tribunal also noted the evidence submitted of the Household Registration Book which verified that the applicant, Hoang, Tuyet and other family members were living together at 25 Street No. 23, Block 8, Binh Tri Dong B Ward, Binh Tan District, Ho Chi Minh City. It was also submitted (and evidence tendered) that this residential property was owned Tuyet at the time the applicant and others were living there. The Tribunal cited a contract of property sale dated 22 October 2014[7] which identified Tuyet as a party to the sale.

    [7]see, AAT File. 

21. It was also reiterated that the sponsor having offered financial support to Tuyet, she was also included as a dependant in the application. Later, her name was removed (on 18 April 2016) when she entered a relationship with an Australian partner and having lodged a partner visa. Contra, it was submitted, to the Department’s view that the money transfers to Tuyet should not be offered any weight since her withdrawal, it was submitted that the Tribunal should consider the fact that the sponsor transferred funds to support Tuyet on a number of occasions. Hence, it was submitted that this helped substantiate the fact that the sponsor was not only supporting the applicant but several members of the household who resided at 23 Street Binh Tan, and ‘consequently the applicant’s reliance on the sponsor would have been greater than a reliance on any other person’[8] given that the household was a whole financially supported by the sponsor. The Tribunal accepts this as providing a true explanation of the applicant’s dependence on the sponsor.

    [8] see AAT File, Applicant’s legal submission dated 28 February 2022 at  p. 9

22. The Tribunal noted and accepted the statements provided by Hoang attesting that he was injured in a motor vehicle accident and for a period of time was without work. As a consequence of his accident, he was unable to support his family since 2012 and unable to offer substantial support to the applicant despite residing at the same address. He also claimed to have relied on the sponsor to a certain extent for financial support and this provides an explanation as to why the money transfer (dated, 3 February 2013) evidence made by the sponsor was addressed to Hoang as a beneficiary on that occasion rather than the applicant.

23. Evidence was provided that the financial support provided, based on the standards of living in Vietnam at the time, would have been more than enough to cover the living expenses of multiple individuals, including the applicant’s basic living expenses. The applicant’s counsel extracted evidence from the General Statistics Office of Vietnam for the periods 2009-2015 which indicated that the cumulative value of the money transfers made by the sponsor over the period 2009-2015 would have comfortably covered the whole or substantial portion of the applicant’s basic living needs such as food, shelter, and clothing. It also provided substantial assistance to the applicant’s other family members living in the same household (at 25 Street Binh Tan).

24. It was noted by the Tribunal from that the applicant (her evidence) utilised the cash transfers for a majority of her spending needs. The applicant also provided evidence that from the time of application, she has lived with and has been supported by the sponsor. The Tribunal accepts this as fact and is verified by evidence of bank statements held by the sponsor, evidence of health insurance, which was provided and paid for by the sponsor, and evidence of the applicant’s living arrangements. The Tribunal concludes and finds that the applicant has provided substantial explanations and credible evidence to show that she relied wholly or substantially on the sponsor from a reasonable period prior to the application. Save to say, that the evidence submitted has the sponsor providing financial support for the living expenses of the applicant, but also for the household. Also, it is accepted that the applicant has been fully supported by the sponsor since her arrival in Australia in 2015 to date.

25. The proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice: see, reg 1.05A. In Huynh, the Court held that the definition of dependent does not require that there be a lack of choice before a child can be said to be wholly or substantially dependent or reliant on the parent for relevant financial support[9] at [43]. There is no need to show that there is a need to rely, or that the reliance is as result of lack of choice. While the judgement in Huynh considers specifically the construction of ‘dependent’ in the context of ‘dependent child’ the Tribunal is of the view that the Court’s conclusion as to the proper construction of ‘dependent’ in r. 1.05A is applicable in all cases where reference is made to the term ‘dependent’, including in relation to an ‘aged dependent relative.’

    [9] Huynh v MIMIA (2006) 152 FCR 576 at [44] and [52]

26. On the evidence before it, the Tribunal finds the applicant is totally reliant for the cost of her basic need for clothing on the sponsor from 2014 up until the present day, and this includes her health insurance needs, nutrition and residence.

27. As to whether the applicant’s reliance on the sponsor is greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter, the Tribunal accepts the applicant has not at any stage received financial support for anyone other than the sponsor since 2015. Further to this, the Tribunal is satisfied that the contribution made towards the applicant’s basic needs from her own financial resources has been non-existent (since the sale of her business and spending of those sale funds) and in the period from 2015 to the present day, her reliance on the sponsor has been substantial in order to meet her basic needs.

28. The Tribunal has considered all the evidence before it whether the applicant could be considered to have been dependent on the sponsor as required by the Regulations. The Tribunal notes that the applicant has no independent sources of income or moneys deposited in a bank account. The Tribunal also noted from the evidence submitted that the applicant had some funds of her own in the past which were a result of her work and sale of a business and an interest in property (though not substantial). In the present, the evidence before the Tribunal indicates that the applicant has no funds of her own. The Tribunal acknowledges that it is presently unclear whether dependence requires substantial reliance on the other person to meet all three basic needs identified in reg 1.05A(a)(i) (food, clothing and shelter) or whether substantial reliance to meet one or two of those needs will suffice.

29. In Vo v Minister for Home Affairs [2019] FCAFC 108, the Court adopted a holistic approach suggesting that it is the overall position that should be considered. The Tribunal notes that the Court held a ‘meaningful degree’ of financial reliance is required and found ‘it must be sufficient that without the extent of the support provided by the other person the dependent person would be in a position where their overall basic needs for food, clothing and shelter though aided by others would not be met’: at [17]. The Tribunal is satisfied that this would be the case in the applicant’s circumstances, both for a reasonable period leading up to the time of application and that it would continue to the case up until the present day. Accordingly, the Tribunal accepts that the applicant in the specific circumstances of this case can be found to be substantially reliant on another person. The applicant, considering the evidence before the Tribunal, has no independent sources of income to provide her with the necessities of life (though in the past, she may have some funds of her own, these funds were not significant in scope and dissipated quickly) she still maintained a significant reliance on the sponsor for her needs – food and shelter). The Tribunal is guided by the principles established in Vo and Huynh and on the basis of the facts before it finds the applicant was substantially reliant on the sponsor, for financial support to meet her basic needs for food, clothing and shelter, notwithstanding the funds she had in the past which had been dissipated. The Tribunal furthermore is satisfied that the applicant’s reliance on the sponsor was greater than any reliance on any other person, or source of support, for financial support to meet the applicant’s basic needs for food, clothing, and shelter.

30. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is met at the time of application and continues to be met at the time of decision.

    Certificate issued by the Department pursuant to s. 376 of the Act

31. The Tribunal noted that the s. 376 certificate is dated 6 March 2018 and had been initially brought to the attention of the applicant and her legal counsel for comment in the previous Tribunal hearing (differently constituted). The Tribunal notes that the information contained within the s. 376 Certificate had already been discussed and comments provided to the previous Tribunal. Further, the Tribunal has been provided with a copy of all documents that were the subject of the s. 376 certificate. From the applicant’s perspective, the documents in question the subject of the certificate related to internal investigations conducted into two previous visa applications made by the applicant and Tuyet Thanh Le. The Tribunal having considered the applicant’s responses on a previous occasion and their legal counsel’s written submission dated 21 March 2022[10] concludes and finds that though the certificate was properly issued by the Department, it provides no significant new concerns which might alter the Tribunal ‘s opinion and conclusions arrived at having considered the evidence in toto at the hearing of this matter.

    [10] see AAT File Case no. 21022919 submission, LH & Associates dated 21 March 2022 provided via EMAIL.

1. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cl. 838.212 and cl. 838.221.

2. Given the finds above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclause 838.

   DECISION

3. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

   · cl 838.212 of Schedule 2 to the Regulations.

   · cl 838.221 of Schedule 2 to the Regulations.

   Peter Vlahos
   Member