McGill (Migration)

[2021] AATA 2328

McGill (Migration) [2021] AATA 2328 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gary William McGill

VISA APPLICANT:  Mr Hai Nguyen Ngo

CASE NUMBER:  2003537

HOME AFFAIRS REFERENCE(S):          BCC2018/5196446

MEMBER:Kira Raif

DATE:23 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 23 June 2021 at 3:04pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – secondary applicant member of family unit of primary applicant who holds same subclass visa – mother now holds different subclass visa – consideration of department’s reasons for refusal of original subclass visa – child aged 18 to 22 wholly or substantially dependent on parent – information given at department interview of part-time study and part-time work – explanation to tribunal that information about part-time work was given to create better impression of himself – application for dependent child visa in progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, Schedule 2, cls 300.311, 300.321

CASE
Huynh v MIMA [2006] FCAFC 122

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 to refuse to grant the applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 21 November 2018. The delegate refused to grant the visa on 23 December 2019 on the basis that the applicant did not satisfy the requirements of cl 300.311 and cl. 300.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 300.311 and cl. 300.321 of Schedule 2 relevantly require the applicant to be a member of the family unit of the primary visa applicant (his mother) at the time of application and decision. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 21 and 23 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother, friend and her brother. The review applicant also requested the Tribunal to take oral evidence from another witness but indicated that her evidence would relate to the monetary transfers between his partner and the visa applicant. As the Tribunal accepts that evidence, the Tribunal determined it was not necessary to take oral evidence from that witness.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. The issue in this review is whether the applicant is a member of the family unit of his mother, who was the primary visa applicant and satisfies cl 300.311 and col 300.321.

6. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

7. In this instance, the applicant is claiming to be the dependent child of his mother, who was the primary visa applicant and the family head. The Tribunal is not satisfied the visa applicant meets any of the alternative definitions of the term ‘member of the family unit’. A person is a member of the family unit of the family head if they are the child or step-child of the family head or of a spouse or de facto partner of the family head.

8. The child or step-child of the family head or of a spouse or de facto partner of the family head must meet certain dependency requirements. Essentially, the child or step-child must not be engaged, married or in a de facto relationship, have not turned 18, or if aged between 18 and 22 years of age they must be must be ‘dependent’ within the meaning of reg 1.05A, or if 23 years of age or older they must be wholly or substantially reliant on the family head or their partner for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

9. When considering whether the applicant is dependent on the family head or their spouse or de facto partner as required under reg 1.05A, the Tribunal must be satisfied that they are ‘wholly or substantially’ reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support. Alternatively, they must be wholly or substantially reliant on the family head or their spouse or de facto partner for financial support because the first person is incapacitated for work due to the total or partial loss of their bodily or mental functions.

10. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is reliant for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

    Is the visa applicant a dependent child?

11. The review applicant’s evidence to the Tribunal is that his partner has been granted the subclass 820 visa. The Tribunal notes that cl. 300.321 requires the applicant to be a member of the family unit of a person who essentially, is the holder of the subclass 300 visa. The review applicant’s evidence to the Tribunal is that his wife is no longer the holder of the subclass 300 visa but holds another visa. In the circumstances, the Tribunal finds that at the time of this decision, the visa applicant does not continue to be a member of the family unit of a person who is the holder of a subclass 300 visa. The visa applicant does not meet cl. 300.321.

12. The review applicant provided to the Tribunal evidence indicating that the visa applicant has recently made an application for the Class TK Subclass 445 visa and the Tribunal acknowledges that evidence. The review applicant states that the Tribunal has jurisdiction to assess the present application and the Tribunal accepts that this is so. The review applicant submits that the matter should be remitted to the delegate for reconsideration. For the reasons set out in this decision record, the Tribunal does not agree with that submission.

13. Having made the finding that the visa applicant does not meet cl. 300.321 because the primary visa applicant no longer holds the subclass 300 visa, it is not necessary to consider the separate issue of the visa applicant’s dependence on his mother and whether he is a member of the family unit of his mother. Nevertheless, as that was the primary reason for refusal, the Tribunal has considered the issue and makes the following findings.

14. The visa applicant was born in July 1998. The Tribunal finds that the visa applicant was over the age of 18, and under 23, when the application for the visa was made and at present.  The visa applicant does not claim to be a partner or a dependent child of the dependent child of the family head and the Tribunal finds that these elements of the definition of the term ‘member of the family unit’ are not met. The visa applicant claims to be a dependent child of his mother, who was the primary visa applicant. The Tribunal must consider the visa applicant’s dependence on his mother. There is no evidence, and the Tribunal is not satisfied, that the visa applicant is incapacitated for work due to the total or partial loss of bodily or mental functions.

15. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

16. When making the application, the visa applicant provided evidence of his enrolment at Viet Giao Vocational School and a statement from the school confirming his enrolment between 2018 and 2021. The visa applicant and his mother told the Tribunal that he is due to complete the course in August 2021. The primary decision record indicates that the visa applicant was interviewed by an officer of the Department in October 2019 and during the interview he is recorded to have stated the following

    ·he attends Viet Giao Vocational school and studies from 1 - 3 pm, from 1 - 5 pm or from 7 - 11 am

    ·he works part-time as a Go Viet motorbike taxi service and earns around VND3 – 4 million a month.

    ·he provides VND 1.5 – 2 million a month to his mother as a contribution to the rent

    ·he has been living with his mother and a sibling since his parents’ divorce and his father does not provide any financial support. He pays for his own food and mostly for his own clothes but his mother sometimes provides him money for clothes.

17. As a result of the visa applicant’s evidence, the delegate was not satisfied the visa applicant was wholly or substantially dependent on his mother.

18. In his submission to the Tribunal the review applicant and other witnesses claim that the information provided by the visa applicant in the interview was factually incorrect as he had an inflated personal view of himself, was under pressure to be a filial son and conform to societal standard. It is stated that the visa applicant saw his mother struggle to provide for his family and wanted to avoid being criticised. It is stated that the visa applicant is remorseful of his behaviour as he believed he needed to impress his mother before the delegate. The visa applicant gave the same oral evidence to the Tribunal.

19. The review applicant refers to his wife’s first relationship and explains that prior to her departure from Vietnam, she left money with the visa applicant’s aunt to cover his living expenses as she believed he would not know how to manage his finances. It is stated that  the course fees were paid in full at the time of enrolment and the visa applicant’s aunt managed other expenses. The review applicant submits that the visa applicant’s mother has been sending money to the visa applicant electronically and has been the visa applicant’s carer since birth. As noted elsewhere, the Tribunal accepts that the visa applicant has been receiving financial support from his mother since her departure from Vietnam.

20. The review applicant claims that the visa applicant helped his uncle with the paperwork to register the motorbike taxi business but never intended to be a driver and he never worked as a driver (the review applicant provided statements from the visa applicant and his uncle). The visa applicant explains that he did not want to be considered as living off his mother and wanted to demonstrate he was mature and a support for his mother. The Tribunal is mindful that this evidence contradicts the visa applicant’s express evidence at the interview. The visa applicant is recorded to have stated at the interview that he did work as a driver and specified his income from that employment.

21. The review applicant provided to the Tribunal a number of statements and evidence of the visa applicant’s study. The review applicant also provided evidence of financial transfers made to the visa applicant. The Tribunal accepts that the visa applicant’s mother has been providing him with financial support since entering Australia. However, that is not sufficient to establish the visa applicant’s dependence on his mother at the time of application and at present.

22. In oral evidence, the review applicant told the Tribunal that he started supporting the visa applicant’s mother from about late 2018 and he thought they were poor at the time. He did not know about their financial situation or the information about the visa applicant’s study.

23. Ms Vo (the visa applicant’s mother) told the Tribunal she started to receive financial support from the review applicant around May 2018. These funds were used to pay rent and her daughter’s tuition fees while other expenses including groceries were paid for from her employment income. Ms Vo explained that her son gave incorrect information at the interview to prove that he was a man and independent and in fact he did not have any income and was fully dependent on her. Ms Vo states that her son made up the information to create a good impression.

24. Ms Nguyen, a friend of Ms Vo, gave oral evidence to the Tribunal and explained that they were neighbours before coming to Australia and Ms Vo worked for her tirelessly after coming to Australia. Ms Nguyen told the Tribunal that Ms Vo’s life was difficult and challenging in Vietnam as she had to support her two children and she sometimes sent money to Ms Vo to support her family. Ms Nguyen told the Tribunal they did not keep in touch frequently. Ms Nguyen told the Tribunal that she was unsure about the visa applicant’s study or his expenses but she said he calls his mother frequently to ask for money and Ms Vo has been sending money to him. The Tribunal generally accepts Ms Nguyen’s evidence but has formed the view that her knowledge of the family’s financial situation and the intricacies of their financial affairs at the time the application was made, is limited.

25. The visa applicant told the Tribunal that when he started studying in 2018, he was studying 2-4 hours a day and in his free time he stayed at home, helped his mother and studied other subjects. The visa applicant told the Tribunal that he did declare employment in his interview but only because he felt he had to declare work to give a better impression of himself. The visa applicant also told the Tribunal that he lied about having an income as he had no income at the time. The visa applicant said he helped his uncle register the business but he did not work for his uncle. The visa applicant expressed remorse for providing incorrect information at the interview.

26. The Tribunal finds the explanations provided to the Tribunal unpersuasive. The visa applicant was about the age of 21 at the time of his interview with the delegate. In the Tribunal’s view, he was of sufficient maturity to appreciate the significance of an interview for the purpose of a visa application and the Tribunal does not accept that he would fabricate evidence (as the review applicant and others now suggests) in order to impress the immigration officer or comply with societal expectations. This is particularly so as the visa applicant was being interviewed by an officer of an Australian government agency, not a member of his own community and it is unclear how his claimed desire to impress his mother or comply with societal expectations would have necessitated the provision of false information to an Immigration official.

27. The Tribunal considers that a much more likely explanation is that the information provided by the visa applicant at that interview was truthful. As that information led to the refusal of the visa application and a finding that the visa applicant was not a dependent child, the parties now seek to alter the evidence so as to enable the visa applicant to meet the statutory definition of dependence and be granted the visa. The Tribunal does not consider there is any logical basis to disregard the visa applicant’s evidence at the interview as being untruthful or fabricated and to give preference to the present evidence. The Tribunal is of the view that the present evidence is more likely to be fabricated to enable the visa grant to the visa applicant.

28. The Tribunal has considered the visa applicant’s own evidence to the Tribunal but as noted above, the Tribunal does not accept the claim that he had fabricated information in his interview with the delegate in order to create a better impression of himself and that it is the present evidence that is truthful while the earlier evidence was untrue. The Tribunal is of the view that the significant change in evidence is the result of the visa applicant’s (and the review applicant’s) better understanding of the legal requirements relevant to visa grant and an attempt to rectify the problematic evidence given by the visa applicant at the interview.

29. The Tribunal has formed the same view in relation to the evidence given by the visa applicant’s uncle, Mr Vo, who also told the Tribunal that the visa applicant assisted him with the setting up of the business but did not work for him or for anyone else.

30. The visa applicant provided a statement to the Tribunal in which he explains that due to his study, he did not have much time to work. The Tribunal does not accept that, given the visa applicant’s claim at the interview that he only studied a few hours a day. In the Tribunal’s view, such timetable would give him ample time and opportunity to engage in part time employment. The visa applicant also states that he did not want his step-father and relatives to think that he relied on his mother and was ‘helpless’. It is unclear to the Tribunal how providing information to an Immigration officer, during a visa interview for the purpose of determining the applicant’s eligibility for the visa, was meant to impress the visa applicant’s father in law or other relatives.

31. As noted above, the Tribunal is not prepared to accept that the visa applicant had completely fabricated his evidence at the interview because he wanted to be seen as mature and supportive of his mother. Given the importance of the visa process and of that interview of the visa applicant with an immigration officer, the Tribunal does not accept that he would have completely fabricated evidence in order to give a better impression of himself.

32. The Tribunal considers it significant that at the interview the visa applicant did give considerable detail about his job, describing the nature of the employment and the income he derived from it and the funds he provided to his mother. Given the level of detail, the Tribunal does not accept that the visa applicant had created the entirety of that evidence and that it was completely untrue. The Tribunal prefers the evidence at the interview as it is of the view that such evidence was less rehearsed and more truthful.

33. The review applicant submits that it is problematic of the Minister to assume that even if the visa applicant was driving taxi, he was earning enough money not to be dependent on his mother. In his written submission to the Tribunal the review applicant outlined the visa applicant’s financial needs. The Tribunal does not consider that to be an accurate representation of the delegate’s findings. The delegate was not satisfied that the visa applicant was ‘wholly or substantially’ dependent on his mother, not that there was no dependency. The delegate had regard to the visa applicant’s evidence of his employment, income and financial support he provided to his mother, his claimed payment towards shelter and his payments towards clothes. These findings were clearly open, having regard to the visa applicant’s own evidence at the interview. The Tribunal acknowledges the review applicant’s claims that the primary decision was invalid but as the Tribunal conducts a de novo review, it considers such argument unhelpful.

1. The Tribunal also places weight on the fact that, according to the primary decision record, the interview took place in October 2019 and the decision to refuse to grant the visa was made two months later. There is no evidence before the Tribunal that in that period, the visa applicant, or the review applicant or the visa applicant’s mother made any contact with the Department to explain that the information given at the interview was incorrect or inaccurate. In the Tribunal’s view, even if the visa applicant was so young and immature and incompetent as to appreciate the importance of giving the truthful evidence in his interview with the Departmental officer (a claim the Tribunal does not accept), his mother or the review applicant had the capacity and the wherewithal to correct the information which they believed to be false. Ms Vo told the Tribunal she did not know she could correct the information and her English was not sufficient but the Tribunal does not accept these claims, as she and the review applicant had sufficient skills to make an application for the visa, which was ultimately successful, and the Tribunal is of the view that the review applicant had sufficient English and both he and his partner had sufficient knowledge and skills to correct any information they considered to be incorrect. The fact that this was not done also supports the Tribunal’s view that the information provided by the visa applicant in his interview was in fact truthful and the current explanations are nothing more than recent inventions.

2. The Tribunal has formed the view that the evidence to the Tribunal has been fabricated to support the visa applicant’s application. the Tribunal has formed the view that the visa applicant and his mother are not witnesses of credibility. For all these reasons, the Tribunal prefers the evidence the visa applicant gave in his interview with the Immigration officer. That information indicates that at the time of application, the visa applicant had part-time employment and that income from his employment contributed to the costs of accommodation and largely covered his expenses for food and clothing.

3. The Tribunal is not satisfied that at the time of the application, the visa applicant had been wholly or substantially reliant on his mother for food and shelter and clothing. The Tribunal is not satisfied that at the time of the application, the visa applicant’s reliance on his mother for food, shelter and clothing was greater than his reliance on any other source (such as income from employment). The Tribunal is not satisfied the visa applicant dependent on his mother when the application was made and for a period prior to the application being made. The Tribunal is not satisfied the visa applicant was a dependent child, and a member of the family unit of the primary visa applicant when the application for the visa was made.

4. The Tribunal accepts that since her arrival in Australia, the visa applicant’s mother has been providing the visa applicant with financial support and evidence of such support in the form of financial transfers is before the Tribunal. However, the Tribunal makes no finding on the visa applicant’s dependence at the time of this decision because the Tribunal is not satisfied that the visa applicant was dependent on his mother at the time the application was made. It is therefore not necessary to consider dependence at the time of decision.

5. The Tribunal also acknowledges the evidence that the family wants to be reunited and the visa applicant spoke about the close relationship he has with his mother. While the Tribunal accepts these claims, it has no discretion to grant the visa on compassionate grounds. Having found that the visa applicant was not a dependent child, and not a member of the family unit of his mother when the application was made, the Tribunal finds that the visa applicant does not meet cl. 300.311.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Prospective Marriage (Temporary) (Class TO).

   Kira Raif
   Senior Member