Le (Migration)

[2020] AATA 3860

Le (Migration) [2020] AATA 3860 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Minh Hoa Le

CASE NUMBER:  1731752

DIBP REFERENCE(S):  CLF2015/21100

MEMBER:Kira Raif

DATE:15 September 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 15 September 2020 at 4:16pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependant Relative) – dependant relative – dependency – money transfers – cash and bank accounts – ownership of land and factory – no explanation of non-eligibility for pension – nobody to provide care in home country – some degree of reliance but insufficient documentary evidence overall – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.111, 838.212, 838.221

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 27 November 2017 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 March 1950. She made the application for the visa on 7 April 2015. 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 22 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and other 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. For the following reasons, the Tribunal has concluded that the 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’ in r.1.05A 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 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. The applicant is 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. The issue is whether the applicant is a dependent relative of her Australian relative and was such a relative when the application was made.

    Primary decision

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant claimed to be dependent on the sponsor and provided with the application evidence of seven money transfers to the sponsor 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 here was no evidence that such funds were for the applicant’s basic needs. The applicant stated that she retired in 2008 due to medical issue and 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 stated that in 2008 the sponsor left cash when visiting Vietnam and continued to send money to pay medical fees, food, clothing, shelter and other items. The applicant states that between 2005 and 2010 she lived with her nephew who h helped her with accommodation and since 2010 her nephew accepted her contribution to share the rent and household bills.

12. 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 VND 300 million and 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) in her savings account. Of these funds, $6000 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 the money previously shown in the visitor visa application was not hers. With respect to land ownership, the applicant stated that the land was bought 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.

13. 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 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 her 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

14. The applicant provided a substantial amount of further evidence to the Tribunal on 20 July 2020. (It is not clear to the Tribunal why she chose to do so less than two days before the hearing and more than two and a half years after her application for review was lodged with the Tribunal, given that the issues in dispute were clearly identified in the primary decision.) In her written submission to the Tribunal the sponsor claims that consideration must be given to the entirety of the circumstances, including the nature of her relationship with the sponsor, cultural differences and her age. While the Tribunal accepts that consideration must be given to the entirety of the circumstances and the specific circumstances affecting the applicant and the sponsor, the Tribunal is also mindful that it is up to the applicant to satisfy the Tribunal that she meets the criteria for visa grant.

15. The sponsor states that due to cultural considerations, money to an elder person must be given with subtlety and she was able to transfer funds twice in 2009 and 2010 and in 2011, 2013 and 2013 she gave money to the applicant during her visits to Vietnam. In 2014 and 2015 she also transferred the yearly amount to the applicant. In the earlier years the applicant lived with the sponsor’s brother and the sponsor only partially supported her accommodation while in latter years the support for accommodation increased. The sponsor states that in Vietnam people rely on cash payments and attending a bank is not convenient, particularly for an elderly person like the applicant. The sponsor notes that the applicant is at retirement age and relies on cash and has no knowledge about keeping savings records or managing electronic trasers. The sponsor states that the applicant receives no financial support from the government as she was the owner of a small business.

16. The applicant enclosed a number of documents with her submission. This includes evidence of her present health insurance and aged care association card, as well as evidence of the applicant’s residence at the same address as the sponsor. The applicant presented evidence of the sponsor’s bank records and the sponsor’s travel history. There are a number of statements from third parties, including a supporting statement from the sponsor’s husband.

17. The Tribunal acknowledges the applicant’s submission concerning cultural considerations and, in particular, the use of cash in Vietnam. However, the primary decision record indicates that the applicant did present evidence of a bank account, with a substantial amount of savings, in her earlier Visitor visa applications. That  indicates that the applicant did operate a bank account, or was capable of opening and operating a bank account, so her present claim that there was no bank account, or that bank accounts are not used in Vietnam or that  she was for any reason not able to operate a bank account, appears to be incorrect.

18. The Tribunal has regard to the oral evidence provided at the hearing on 22 July 2020. Dr Duong spoke of a close family relationship between the applicant and his family. Dr Duong told the Tribunal that since coming to Australia, the applicant has been living with them and has been part of their household. They have supported her financially, mentally and emotionally and the applicant also provides emotional support to his children. Dr Duong said that traditionally, they do not provide cash but find subtle ways of providing money. The Tribunal is mindful that, despite these claims, there is evidence of several financial transfers between the sponsor and the applicant and claims that the sponsor left cash to the applicant when visiting Vietnam, which appears to contradict the claim that cash is not normally given.

19. The Tribunal also heard from Ms Du. Ms Du spoke of her close relationship with the visa applicant and said that her daughter, the sponsor, has been fully financially supporting the applicant since 2008. Ms Du said that the sponsor has been giving $2500 a year to the visa applicant since 2008. The Tribunal notes that the documentary evidence of money transfers, which was provided with the primary application, shows different amounts being provided. The Tribunal is not satisfied Ms Du has great familiarity with the financial arrangements.

20. The Tribunal accepts the evidence that the applicant has a close relationship with the sponsor’s family. However, the issue here is the financial dependence and not any other form of dependence.

21. In oral evidence, the applicant told the Tribunal that she has been incapacitated and unable to work since the age of 60. She suffers from diabetes, hypertension and takes a lot of medication daily. The applicant said she stopped working in 2002. The applicant initially said that her family owned a plant / factory. She then said that her brother was the owner and then that she was the owner but as a woman, she needed to be supported. The applicant confirmed that she was the owner and the manager of the factory. The applicant said that the business was not doing well, she referred to bankruptcy and said she sold the business in 2010 but there was no evidence of the sale. The applicant said she could not recall how much the business sold for but then said it was about VND 500 million. The applicant said that she finished work in 2012 because of her medical condition.

22. The applicant confirmed in oral evidence that she worked in her own business until 2010 and as a tailor until 2012 when she stopped working due to poor health. However, in her dependency questionnaire which the applicant submitted to the Department, the applicant claimed that she had not worked since 2008. When asked to explain that discrepancy, the applicant said that before 2008 she had savings in the bank. She withdrew the money to contribute to a restaurant but the restaurant was a failure and the others did not return the money to her and she was very unhappy. That does not explain the discrepancy about the period of the applicant’s employment.

23. The applicant told the Tribunal that she made visitor visa applications in 2007, 2012 and 2015 and was granted visas on each occasion. The applicant said that in these applications she told the Department that she had property and savings and that information was true.  The applicant confirmed that her nephew bought a piece of land and she 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 in her nephew’s name. The applicant said the government was going to buy that land and they are still waiting for the compensation. Following the hearing, the applicant provided to the Tribunal evidence relating to the transfer of the property and statements from her nephew and others concerning the living arrangements and financial circumstances.

24. The applicant’s present evidence is that she contributed very little to the purchase of the property (VND 50 million out of 850 million) and that her name on the ownership papers was placed only out of love and respect from her nephew. If true, that does not suggest property ownership in a meaningful way. At best, the applicant had a minimal involvement with that property. Yet, the applicant’s evidence is that when she applied for the Visitor visa, she claimed to own the property and submitted the property ownership certificate and that information would have been misleading if she claims now the property effectively belonged to her nephew. The applicant told the Tribunal that she was not familiar with the srequirements but there is no requirement for the applicant to evidence property ownership when seeking a visitor visa. The applicant sought to provide that evidence in support of her claim that she has assets in her home country and to establish a ‘pull factor’. If the applicant claimed to be a property owner while she owned a tiny proportion of that property, without identifying the factual owners of the property, in the Tribunal’s view, that may indicate that the applicant gave false or misleading information to the Department in relation to her Visitor visa and this would give rise to the application of Public Interest Criterion PIC 4020. In her post-hearing submission of 31 August 2020 the applicant claims there was no materiality to that claim and the evidence of the property ownership was not a bogus document. The Tribunal accepts that the property ownership document was not a bogus document but has formed the view that the applicant’s representation in relation to being an owner of a property of a certain value was misleading if the applicant now claims she contributed only a small proportion toward that property which was in fact owned by her nephew. That is, if the applicant’s present claims are accepted, the applicant exaggerated her assets to evidence her links to Vietnam when seeking the Visitor visa. The Tribunal has not considered PIC 4020 provision in the present case. Of more significance for the present review is the applicant’s apparent willingness to provide misleading information in support of her visa application and the applicant’s overall credibility.

25. Similarly, the applicant told the Tribunal that she showed bank statements in support of her Visitor visa applications in 2012 and 2015. She said the money was sent to her by the sponsor and she opened a short-term deposit with the bank. The applicant claims she did not otherwise operate a bank account in Vietnam as it is a cultural norm to rely on cash. The applicant’s evidence, if true, suggests that the applicant had prepared evidence solely for the purpose of her Visitor visa applications. If the applicant did not otherwise have a bank account in Vietnam, the bank accounts presented with the Visitor visa application did not reflect her true circumstances. Again, the Tribunal is concerned about the applicant’s willingness to prepare documents for the purpose of a visa application that do not necessarily reflect her true situation.

26. The applicant told the Tribunal that the only reason her nephew put her name on the property certificate was because he loved her and respected her and there were no other reasons. However, in her statement to the delegate, the applicant claimed her nephew had marriage issues and that is the reason her name was on the property certificate. When the Tribunal pointed out this discrepancy, the applicant said that this was partially the reason, which contradicts her earlier evidence to the Tribunal that the only reason her name was on the property ownership certificate was because of her nephew’s love and respect for her. The applicant told the Tribunal she ‘just remembered’ that reason. The applicant’s responses cause the Tribunal to question her credibility.

27. The applicant repeatedly told the Tribunal that she is elderly and has health issues and poor memory. There are medical reports and evidence about the applicant’s health but little evidence relating to the applicant’s poor memory. The Tribunal has considered the report by Mr Watson-Munro whom the applicant had consulted after the hearing and, apparently, for the purpose of addressing the Tribunal’s concerns about her evidence. The Tribunal considers it problematic that the report was sought specifically for the purpose of addressing the issues that arose during the course of the hearing as Mr Watson-Munro has been provided with the hearing recording and other documents by the applicant. Nevertheless, the Tribunal accepts Mr Watson-Munro’s professional opinion and the assessment set out in the report. It does not establish, in the Tribunal’s view, that the inconsistencies in the applicant’s evidence, including the deficiencies in her evidence given in the earlier visitor visa applications which the Tribunal has noted above, were caused by her poor memory or other health issues.

1. The applicant told the Tribunal that when the sponsor sent her the funds, somebody brought money to her at home and she kept the cash at home. There are no bank records of the transfers. The applicant told the Tribunal she did not have a bank account in Vietnam since 2008 so there are no bank records relating to the transfers.

2. Ms Le’s evidence to the Tribunal is that she sent money to her aunt and the money was given in cash. Her aunt did not have a long term bank account but had short term accounts. Ms Le said the applicant stopped working in 2008 or 2010 when she worked as a tailor. Ms Le told the Tribunal that since the death of her father, she has been providing financial support to her aunt and there is evidence of financial transfers. While the Tribunal accepts that transfers have been made, that is not sufficient to meet the statutory criteria. Ms Le referred to the evidence in her written submissions.

3. The applicant told the Tribunal that she cannot return to Vietnam. She referred to having a close relationship with her family in Australia. The Tribunal accepts that such a relationship exists. The Tribunal accepts that the applicant prefers to remain in Australia and that she may find it difficult to return to Vietnam. The Tribunal acknowledges the sponsor’s evidence that there is nobody to take care of the applicant in Vietnam. However, the Tribunal has no power to recommend a visa grant on compassionate grounds.

4. Overall, the Tribunal accepts that the sponsor has been providing financial support to the visa applicant prior to her arrival in Australia and since her arrival in Australia. The Tribunal is prepared to accept that prior to her arrival in Australia, the visa applicant lived with her nephew and contributed towards the living expenses to her nephew’s family. There are statements from the nephew and evidence that the visa applicant rented a property in 2014-15 and other evidence that the applicant presented in her post-hearing submission. The Tribunal also acknowledges the statement from the Vietnamese lawyer provided in the applicant’s post-hearing submission, which outlines the situation in Vietnam and the availability of government support, but the Tribunal must consider the applicant’s personal circumstances and not the general situation in the country. The Tribunal accepts that there has been a degree of reliance by the visa applicant upon the sponsor to meet her financial needs.

5. The Tribunal has formed the view that there is insufficient documentary evidence about the applicant’s financial circumstances overall. The Tribunal accepts that monetary transfers have been made by the sponsor to the applicant and evidence of such had been provided with the primary application. The Tribunal has concerns about the applicant’s credibility and notes the apparent inconsistencies in the applicant’s evidence in support of the present application and in support of her earlier visitor visas, when the applicant sought to evidence her assets in Vietnam which she is now seeking to minimise. The Tribunal does not accept the applicant’s evidence concerning her financial affairs. The Tribunal is not prepared to accept the applicant’s and the sponsor’s evidence that the applicant had no other income, no pension and no assets, including those from the sale of the business or the transfer / sale of the property. The Tribunal is not satisfied that the applicant’s reliance on the sponsor was greater than her reliance on any other source.

6. The Tribunal is not satisfied that at the time when the application was made, and for a substantial period immediately before that time, the applicant’s reliance on the sponsor was greater than any reliance by her on any other person, or source of support, for financial support to meet the applicant’s basic needs for food, clothing and shelter. The Tribunal is not satisfied that the applicant met r. 1.05(1)(a)(ii).

7. The Tribunal has also considered whether the applicant was incapacitated for work. The applicant told the Tribunal that she has a number of health issues and she provided medical evidence to the Tribunal. The Tribunal accepts the evidence in the medical and the psychological reports, but these do not establish the applicant’s incapacity for work at the time the application was made and for a substantial or a reasonable period prior to that time. Thus, the Tribunal is mindful that the medical reports refer to the applicant suffering from various conditions while she was still employed so that such conditions do not appear to have been of such nature or severity as to affect the applicant’s capacity to work. On the evidence before it, the Tribunal is not satisfied 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. The Tribunal is not satisfied the applicant met r. 1.05(1)(b).

8. The Tribunal is not satisfied that when the application was made, the applicant was a dependent relative of the sponsor. The Tribunal is not satisfied the applicant met cl. 838.212.

9. The applicant is an aunt of the sponsor. It is not the type of relationship permitted by the definition of ‘remaining relative’ and the Tribunal is not satisfied the applicant is a remaining relative of an Australian relative. She does not meet the requirements for the grant of that visa. The applicant has not claimed to be a carer of another person and the application was not accompanied by the relevant Certificate or evidence of arrangements to obtain the Certificate. The Tribunal finds that the applicant has not made a valid application for a Carer visa.

10. The Tribunal wishes to acknowledge the helpful written submission prepared by the applicant’s representative Ms Lena Hung of Lena Hung and Associates.

    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