Nguyen (Migration)

[2021] AATA 97

Nguyen (Migration) [2021] AATA 97 (18 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Huu Can Nguyen

VISA APPLICANT:  Ms Thi Tram Anh Nguyen

CASE NUMBER:  1811299

HOME AFFAIRS REFERENCE(S):          2017019586

MEMBER:Kira Raif

DATE: 18 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 18 January 2021 at 3:32pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – adult dependent child – financial reliance on review applicant greater than on any other source – rental income from review applicant’s property in home country and ex-wife’s employment earnings both used to support visa applicant – ex-wife now retired – no documentation and visa applicant unaware of financial details – study requirement – gap in full-time study – English study, part-time course and training positions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 101.211(1)(a), 101.213(1)(c), 101.221(1), (2)(a)

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 on 16 March 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in November 1997. She applied for the visa on 13 February 2017. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the applicant was a dependent child of the sponsor. The sponsor (‘the review applicant ‘) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 18 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother and the visa applicant. 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.

4. The issues in this case is whether the visa applicant is a dependent child of an Australian citizen or permanent resident and also whether she meets the study requirements. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

6. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

7. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

8. 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 relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

   Primary decision

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information. To evidence dependence, the applicant provided with her application a house-leasing contract dated November 2008 identifying the sponsor as the lessor and Huu Phai Nguyen as the lessee with the rental value of VND 5 million a month. The applicant’s mother Ms Thi Lan Anh Pham provided a statement in which she claims to have received rental income from Huu Phai Nguyen of VND5 million a month and she claims she provides these funds to the visa applicant. The primary decision record indicates that the visa applicant was interviewed in March 2017. She is recorded to have stated that her father supports her financially by sometimes sending money to her mother, but she was unaware of the details and the money was not sent directly to her. The visa applicant stated that her mother supports her financially by providing her with VND 2 million a month, which she uses for personal expenses. The visa applicant stated that she did not know the source of these funds but her mother is a journalist and builds and leases houses while she was not aware if her father had any properties for rent. The visa applicant stated that she did not pay for food or shelter as she lived with her mother in a house owned by her mother. The visa applicant stated she spends VND 5-6 million a year on clothing.

10. The sponsor subsequently provided a statement in which he claimed that his rental income of VND5 million is deposited in the bank account of the applicant’s mother as support for the applicant and that rental income is the only source of income used to meet the applicant’s living costs. The sponsor stated that the child’s mother used to cover all the costs of schooling, clothing and food and the rental income was used to cover utilities and part of the rent. Since the mother’s retirement, her income decreased and the sponsor covers the costs of the child’s needs for food, shelter and clothing. In support of these claims, the visa applicant provided evidence that the sponsor owned a property from which he derived rental income, a rental agreement and a statement from the visa applicant’s mother who claimed that no tax was payable on the rental income as it was low. The mother stated that she received rental income directly from the lessee every month but not through a bank, so no bank statements were available.

11. The delegate noted that while there was evidence that the sponsor owned a property, there was no probative evidence that the rental income was given to the child’s mother and there was no ‘compelling evidence’ that the property was in fact rented. The delegate noted that the visa applicant was not aware of her father renting any property but referred to her mother building and leasing out properties. The delegate noted that the applicant claimed her mother owned the house where they lived and found it unlikely that the two parents would exchange money derived from the sponsor’s rental. The delegate considered it more likely that the mother provided the visa applicant with accommodation at no cost. The delegate noted that both the sponsor and the visa applicant confirmed that it is the child’s mother who covers the visa applicant’s expenses for clothing and food. The delegate noted there was inconsistent evidence about the mother’s employment, with the visa applicant claiming she works and rents property while the sponsor stating she had retired and received less money. The delegate preferred the visa applicant’s evidence. The delegate also noted that the sponsor initially stated that his rental income is deposited into the mother’s bank account while the mother stated that she receives the rent in cash. Overall, the delegate was not satisfied the sponsor rented the property as claimed. The delegate was not satisfied the visa applicant was dependent on her father.

    Study requirement

12. The review applicant stated in oral evidence that after graduating from high school, the visa applicant attended college to undertake a Diploma of Business Administration which she completed in November 2018. From November 2018 the visa applicant undertook a beauty course and obtained a Certificate as a result. Since that time, she has also been undertaking a pharmacy course which she started around September 2019 and will complete in 2022. The review applicant confirmed that the beauty course is a part-time evening course while the pharmacy course is a full-time course. The review applicant explained that his daughter could only do the beauty study in the evenings, as that course was not available at daytime, and when before she started the pharmacy course, she would study English at home but she did not undertake formal study and did not obtain a qualification (other than the IELTS test results) following her English study.

13. The Tribunal notes that  the papers submitted with the primary application show that the Business Administration course was due to be completed in May 2017. The review applicant explained that his daughter failed one subject in that course and had to repeat that subject and the exam was not available earlier which is why her graduation was delayed until the November 2018. While repeating the one subject, the visa applicant was studying through attendance at school and on-line study. During that  period his daughter was also studying English as passing an IELTS test was part of the course requirement.

14. The Tribunal is not satisfied that the visa applicant’s study for one subject, which included some formal study and waiting for the availability of the exam, was full-time study. The review applicant’s evidence to the Tribunal is once his daughter failed one subject, she had to wait for the school to offer registration for that course and he exam and while the Tribunal accepts that this study, as well as study for, and the undertaking of, the IELTS test were prerequisites for completing the Diploma, the Tribunal is not satisfied that the visa applicant’s study for one subject amounts to full-time study. The Tribunal is not satisfied the visa applicant could not have engaged in other formal study while waiting to complete the one subject in the Business Administration course and while undertaking English study.

15. The review applicant told the Tribunal that obtaining the IELTS certificate was a requirement for graduation with the Certificate Business Administration and the visa applicant completed her IELTS test that around March or April 2018. The Tribunal is prepared to accept that passing the IELTS test was a prerequisite to graduation, as was the successful completion of every subject. However, the Tribunal does not accept that the visa applicant was prevented by any circumstances from engaging in any other study during the period which did not involve full-time study.

16. The Tribunal also  notes that the visa applicant completed the Certificate, according to the review applicant, in November 2018. She then enrolled in a beauty course which was not a full-time course, and she did not engage in full-time study until around September 2019. That is, there was a gap of almost one year when the visa applicant was not undertaking full-time study. The review applicant’s evidence is that his daughter tried to find a job in that period but could not find suitable employment. The also suggests that in Vietnam courses are not available all-year round but there is no evidence before the Tribunal to show that the visa applicant had no study options before September 2019. Even if the course of her choice was not available (and it may be that an academic year for particular level courses commences in September and no other entry options are available), the review applicant has not satisfied the Tribunal that other study options (in particular, study at a different level) would not have been possible. The review applicant’s representative submits that it would not be reasonable to expect the visa applicant to engage in a course that was not a course of her choice for the sake of the visa. The Tribunal does not accept that argument. Here, the applicant did not engage in study where completion of one course was a prerequisite for commencement of the other. For example, if the visa applicant enrolled in ‘nestled’ courses – such as Diploma of Business Administration and a Bachelor of Business Administration – she may have had limited options in doing other study before completing one course. In this case, the visa applicant did not do such courses. The study she did undertake was completely independent of each other and without the obvious link – business administration, beauty and pharmacy. The Tribunal is not satisfied the visa applicant was unable to enrol in another course while waiting for the pharmacy course to commence and she did enrol in a beauty course, albeit not on a full-time basis. As the visa applicant did undertake study before commencing her pharmacy course, the Tribunal does not consider it unreasonable to expect the visa applicant to have engaged in full time studies before the pharmacy course became available, as the review applicant suggests.

17. The Tribunal finds that  the visa applicant did not engage in full-time study between approximately May 2017 and September 2019. The review applicant’s evidence is that until about November 2018 the visa applicant was studying the last, failed subject and earlier in 2018 she was preparing for an IELTS test, which was a prerequisite to the course completion. She could not undertake the last exam and complete the course before November 2018. The Tribunal is prepared to accept that until November 2018 the visa applicant engaged in activities that were relevant to her study and necessary to complete the course. The Tribunal is satisfied such activities are consistent with what the legislation requires.

18. However, the Tribunal’s concern is with the period between November 2018, when the Business Administration course was completed, and September 2019 when the pharmacy course commenced. The visa applicant was not engaged in full-time study in that period. The Tribunal does not accept the evidence that  no courses were available in that period. Rather, it appears that the visa applicant chose to seek employment and held some training positions, which did not result in offers of employment. That is, the Tribunal has formed the view that the visa applicant was able to engage in full-time employment leading to a formal qualification but chose not to do so.

19. Having considered the entire period, the Tribunal is not satisfied that, characterised as a whole, the visa applicant’s conduct since turning 18 or completing secondary schooling warrants the conclusion that she has been undertaking full-time study leading to a formal qualification. The Tribunal is not satisfied the applicant continues to meet cl. 101.213(1)(c). There is no evidence that the visa applicant is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal is not satisfied the visa applicant meets cl. 101.213.

20. Having made that finding, it is not necessary for the Tribunal to consider the issue of the visa applicant’s dependence. However, the Tribunal’s observations are set out below.

    Dependent child

21. The applicant was born in November 1997. As the visa application was made in February 2017, the applicant was over 18 years of age when the application was made. She does not meet paragraph (a) of the definition of ‘dependent child’. There is no evidence and nothing to suggest that the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal is not satisfied the visa applicant meets subparagraph (b)(ii) of the definition of ‘dependent child’. To meet paragraph (b)(i), the Tribunal must consider if the applicant is dependent on the sponsor, who is her father.

22. The applicant provided written evidence to the Tribunal on 11 January 2021. Essentially, the review applicant claims that the visa applicant’s only source of income and financial support was from his rental income received in Vietnam. It is stated that the property is rented by Mr Nguyen for VND 8 million and is managed by the child’s mother Ms Pham on instructions from the sponsor. Ms Pham uses the rental income to cover the visa applicant’s basic needs. It is stated that although the visa applicant is Ms Pham’s daughter, there is an agreement between her parents that the sponsor’s rental income is paid to Ms Pham for the applicant’s shelter with her mother and family. The review applicant claims that he did not have other means of supporting the visa applicant after relocating to Australia while Ms Pham had no means to support her daughter. The review applicant submits that the visa applicant does not receive financial support from her mother but receives money which her mother manages on behalf of her father.

23. The review applicant addresses the delegate’s concerns. With respect to the rental agreement not being registered, the review applicant states that it was an agreement between family members and certification was not required. The review applicant notes that evidence of the sponsor’s property ownership had been submitted with the application. With respect to the visa applicant’s answers at the interview, the review applicant claims that there may have been miscommunication leading to misunderstanding but it is stated that the visa applicant denies that her financial needs were met directly by her mother. It is submitted that the visa applicant was young and unaware of the family’s financial affairs.

24. The review applicant provided with his submission statements from the visa applicant, her mother and Mr Nguyen, evidence of property ownership by the sponsor and a copy of the rental agreement. The Tribunal notes that there is very limited evidence of these transactions relating to the property rental, such as bank statements or taxation records. Nevertheless, the Tribunal accepts having regard to the review applicant’s evidence, that he owns a property in Vietnam, that he derived income of 5 million dong at time of application and 8 million at present and that the income is paid to Ms Pham. The issue the Tribunal must consider is how that income is utilised.

25. The review applicant told the Tribunal that Ms Pham had been working as a reporter for a government newspaper for over 20 years and recently retired. He claims that Ms Pham’s monthly salary was is about 5-7 million dong which is barely sufficient to meet the needs of her family. With respect to real estate dealings, the review applicant said that it is the income of Ms Pham’s new husband. The review applicant claims the second husband does not look after the visa applicant financially and he claims Ms Pham looks after the visa applicant financially from the money he sends. Ms Pham’s evidence to the Tribunal is that she only lived with her second partner sporadically and they never shared their finances. The Tribunal is prepared to accept that Ms Pham does not receive regular financial support from her second partner but the Tribunal is not satisfied she receives no income from him at all, particularly as they have a common child. This is consistent with the visa applicant’s evidence at the interview, as recorded in the primary decision record, when she stated that her mother has some income from real estate.

26. As noted above, the Tribunal accepts that the review applicant owns a property, from which he derived income of 5 million at the time of application and 8 million dong at the time of this decision. The Tribunal accepts that these funds were used to meet the visa applicant’s expenses for schooling, transport, food and shelter and other daily expenses. The Tribunal accepts that  Ms Pham distributes the funds she receives from rent and such funds belong to the sponsor. However, the Tribunal does not accept the review applicant’s evidence that Ms Pham does not provide financial support to her daughter. That claim is not consistent with the visa applicant’s evidence at the interview and for the reasons stated elsewhere, the Tribunal does not accept the applicant’s explanation as to why such evidence is unreliable.

1. The Tribunal finds that the visa applicant is supported from the funds derived from the rental of the review applicant’s property, as well as the funds that Ms Pham earns. The Tribunal is not satisfied that Ms Pham separates the funds she receives from the rental property and the funds she received from her employment prior to retirement and her pension since the retirement. Ms Pham’s written statement to the Tribunal, which the review applicant provided on 11 January 2021 is that prior to retirement her income was between 5 and 7 million dong. That  is, Ms Pham’s income was comparable to the income from the rental property. The review applicant told the Tribunal that his income was also used to pay for the visa applicant’s study, which would further reduce the funds that the visa applicant would have received from her father for food, shelter and clothing.

2. The Tribunal places weight on the visa applicant’s statements at the interview which indicates that her mother covers her living expenses and much of her daily expenses for food and clothing while there is some income from her father. The review applicant now claims that he provides the entirety of the visa applicant’s income and that there was miscommunication and misunderstanding during the interview. The review applicant presents no evidence to support that assertion. The review applicant has not explained what exactly may have been misunderstood or miscommunicated by the visa applicant during the interview and why. The Tribunal is mindful that her evidence, as set out in the primary decision record, appears coherent and responsive and there is nothing to suggest there was any miscommunication or misunderstanding. The Tribunal does not accept that claim.

3. The review applicant also states that his daughter was unaware of the financial arrangements. He explained to the Tribunal that she was young when he left Vietnam and because of the divorce, they did not explain the situation to their daughter. The Tribunal is mindful that she was about 20 years old by the time of the interview and by 2017 when the interview took place, she was completing a Diploma of Business Administration. In the Tribunal’s view, the visa applicant was sufficiently old and capable of understanding finances to appreciate the family’s financial situation. The Tribunal does not accept that  she was unaware of the financial affairs of her parents.

4. The visa applicant’s evidence to the delegate is that she was primarily supported by her mother while receiving some income from her father. The Tribunal gives that evidence weight.

5. Overall, the Tribunal accepts that the review applicant provided substantial financial assistance to the visa applicant since he departed Vietnam. However, the Tribunal has formed the view that Ms Pham also had income from employment which was approximately of equal value or greater than (when the rental income was 5 million dong) income from the review applicant and that the funds were put together before being used for the visa applicant’s needs. On evidence, the Tribunal is not satisfied the visa applicant’s reliance on her father was greater than her reliance on any other source (being her mother). The Tribunal is not satisfied the visa applicant was a dependent child of the review applicant at the time of application and that she is so dependent now. There is no evidence of the visa applicant’s incapacity. The Tribunal is not satisfied the visa applicant meets cl. 101.211 and cl. 101.221.

6. There is no evidence that the visa applicant is an orphan as both her parents are alive, of known whereabouts and do not claim an incapacity to care for her. She does not meet the requirements for the grant of the Orphan relative visa. There is no claim of adoption and the visa applicant does not meet the requirements for the grant of the Adoption visa.

   Conclusion

7. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

   DECISION

8. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

   Kira Raif
   Senior Member