Nguyen (Migration)

[2020] AATA 4991

Nguyen (Migration) [2020] AATA 4991 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Huu Xuan Thuong Nguyen

VISA APPLICANT:  Miss Pham Bich Phuong Nguyen

CASE NUMBER:  1708045

DIBP REFERENCE(S):  OSF2016/038833

MEMBER:James Lambie

DATE:9 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to refuse the subclass TK 445 visa.

Statement made on 09 September 2020 at 10:59am

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – – dependent child of the visa-holding parent – limited evidence of money transfers – evidence of enrolment – national service obligations – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 445.211, 445.222; rr 1.03, 1.05

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 3 April 2017 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 November 2016. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of clause 445.222 because, at the time of the decision, she did not continue to be a dependent child of the visa-holding parent.

3. The review applicant appeared before the Tribunal on 6 February and 2 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tan Phat Nguyen (the spouse of the review applicant) and Ms Pham Bich Phuong Nguyen (the visa applicant). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant (‘Phuong’) is the dependent child of the visa-holding parent (‘Mr Nguyen’).

7. Mrs Nguyen is an Australian citizen.  She and Mr Nguyen, who is a citizen of Vietnam, were married on 7 September 2014 at Bulleen, Victoria.  Mr Nguyen was granted a UK 820 partner visa on 22 March 2016.  The application for the subclass 445 visa (the subject of this application) for Phuong was made on 7 November 2016.

8. Phuong was born on 30 March 1997. Her birth certificate lists Mr Nguyen as her father.

9. In order for the visa to be granted, the applicant must satisfy the requirements of clauses 445.211 and 445.222 of Schedule 2 of the Migration Regulations 1994. Clause 445.211 provides that, at time of application:

   The applicant [is]:

   (a)  a dependent child of the visa-holding parent; and

   (b)  is sponsored by the nominator or sponsor of the visa-holding parent.

10. “Dependent child” is defined by Regulation 1.03 as

    The natural or adopted child, or stepchild, of a person (other than a child who has a spouse or is engaged to be married), being a child who:

    (a)has not turned 18;  or

    (b)has turned 18 and

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

11. “Dependent” is defined by Regulation 1.05A:

    (1)Subject to subregulation (2), a person is dependent on another person if:

    (a)  At the time when it is necessary to establish whether the first person is dependent on the other person;

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic need for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

12. Subregulation (2) applies only to an application for a protection, or humanitarian and refugee visa, which is not relevant to this application.

13. In considering this application, I have had regard to the Act and Regulations, the Department’s Procedures Advice Manual 3 (‘PAM3’) and to the submissions, documentary material and oral evidence presented by and on behalf of the applicant.  I have also had regard to the material presented to the delegate.

14. Relevantly to this application, PAM3 provides that:

    A person cannot be excluded from being considered as dependent according to regulation 1.05A simply because they are dependent ‘by choice’. The only question that needs to be addressed is whether or not a person is dependent (according to regulation 1.05A), rather than why they are dependent…

    Only financial support for basic needs of food, clothing and shelter counts. In assessing dependency, if a person is earning an income or receiving a benefit, that income should be attributed to basic needs first.

    If that amount is sufficient to provide for most of the person’s basic needs, the person cannot be considered to be wholly or substantially reliant on the other person for basic needs, even though there may be a claim that the family head is actually providing food, clothing and shelter and their own income is actually used for “extras”…

    Under policy, student fees are not considered basic needs…

    It is generally accepted in Australian society that it is reasonable for young tertiary students to maintain dependence on their parents for a time.

    For this reason, it is policy that an adult child who is a full-time student completing their first major undergraduate qualification may be considered ’wholly or substantially reliant’, even though they may be working part-time or receiving a scholarship.

    It can be accepted that they meet regulation 1.05A provided the student:

    ·is otherwise financially reliant on their parent/s (that is, they do not have another substantial income source) and

    ·has been continuous full-time study since completing high school.

15. In addition to the various identity documents, the material before the delegate included a certificate of enrolment for Phuong at the University of Cconomics Ho Chi Minh City (showing that she was a full-time student in the 2015 to 2019 intake) and a statutory declaration from her father dated 10 November 2016. In that statutory declaration, Mr Nguyen, claimed that, in 2014, he sold a piece of land for VND 300 million (approximately AU$20,000) and asked his brother Nguyen Quang Loc to keep the money to provide financial support for Phuong. Also claimed that, since his arrival in Australia in August 2014 he had remitted money to his brother for Phuong’s support. He also made arrangements for his other daughter to take money with her to give to Phuong when she visited Vietnam.  Phuong told the delegate that her uncle received between AU$500 to $800 every 3 to 6 months, which covered the cost of her food. She did not pay for accommodation because she lived with her uncle and grandmother.

16. The delegate found that the evidence of financial support was insufficient. On Mr Nguyen’s claims, Phuong was being provided with between AU$87 to $267 a month but this had not been substantiated. Further, the documents purporting to evidence the sale of land was a transfer document only, which had not been certified by the local People’s Committee, as required under the law of Vietnam. Due to the very limited evidence, the delegate was not satisfied that Phuong was wholly or substantially reliant on her father for financial support in order to meet her basic needs for food clothing and shelter.

17. The applicant’s representative lodged a submission dated 1 January 2020 (received 1 February: likely reflecting a mistaken date on the submission), attaching a copy of the Department’s decision record and copies of the various identity document, which included Phuong’s passport and a certificate of her marital status (not registered for marriage). Other documents listed as attached, including a statutory declaration from Mr Nguyen, a copy of a contract for the transfer of land and copies of money transfers, were not attached. The submission listed the money transfers to be relied upon, amounting to AU$1500 in 2016, $3500 in 2017, $2700 in 2018, $3800 in 2019 and $2000 paid on 21 January 2020, for a total of AU$13,500.

18. The missing documents had still not been produced when the hearing on 6 February 2020 was convened. The hearing was therefore adjourned and relisted for resumption on 2 March 2020.  I also indicated to the applicant’s representative that it would be likely to be in his client’s interest if, in advance of the reconvened hearing, steps were taken to produce a document evidencing the sale of land that dealt with the deficiencies noted by the delegate.

19. A further submission was lodged on behalf of the applicant dated 12 February 2020. This included a certificate of enrolment from the University of Economics Ho Chi Minh City dated 16 January 2020, the statutory declaration from Mr Nguyen dated 10 November 2016, a contract for transfer of land use right (in the original and translation, ‘the Property Transfer’) a commitment letter dated 20 January 2017 from Nguyen Quang Loc, a further statutory declaration from Mr Nguyen dated 10 February 2020, and copies of money transfers for the period for February 2016 to 21 January 2020.

20. The later of Mr Nguyen’s statutory declarations claims that he has returned to Vietnam twice to visit Phuong: between eight December and 15 December 2014 and from 21 January to 10 February 2015. On each of these visits he gave her $1000 in cash for her living expenses and payment of tuition fees. He had not previously declared this to the Department due to what he describes as his own negligence.

21. The application suffers somewhat from the absence of a statutory declaration from Phuong which might have particularised her financial position and, in particular, her degree of dependence.  However, I have had regard to the information she provided to the delegate and in her oral evidence to the Tribunal.

22. In assessing the documents provided with the submissions, there appeared to be some questions as to their authenticity. Among the money transfers are a number of records described as tax invoices from TNN Investments is expressed to be holding a certificate for Group. These documents are strikingly less formal in appearance than the other money transfers tendered: they have a variable date format and the header misspells the name of the company. However, the company is registered with AUSTRAC for the provision of remittance services and I accept that they are genuine.

23. The Property Transfer provided in response to my request bears what appears to be the certification of the chairperson of the People’s Committee of Ward 5, Tan Binh District. What is not clear, and was not explained by the parties, is why this certification is dated 3 February 2017 when the contract is dated 4 August 2014. I note that this predates by 6 days the despatch of the original (deficient) document in response to the delegate’s request.  I also note that Article 8(4) of the contract provides for Mr Nguyen to hold an original copy of the document and that no original has been produced.  I can give this document no more weight than the one presented to the delegate.  In any event,  if the Property Transfer cannot be connected with the claimed payment to the uncle (as to which, see paragraph 25), it has very little evidentiary value.

24. The document purporting to be a certificate of current enrolment dated 16 January 2020 differs in important respects from the document submitted with the visa application (at folio 35 of the Department file) and dated 27 September 2016. The 2016 document is on A5 paper, bordered, professionally typeset and bearing the logo of the University. The 2020 document is on A4 paper, clearly produced by word processor and carries no markings that might give confidence as to its authenticity. The University logo is absent. When asked about the disparity, Phuong claimed that this was the document that was provided to her at her request but did not seek to explain further. No current academic transcript was provided despite one being included with her Visa application (see folios 70 and 71 of the Department file).  I do not consider the 2020 document to be genuine.

25. The delegate noted that, following the interview with the case officer, a request was made for evidence that the money from the sale of land was given to the applicant’s uncle, such as a bank statement showing the deposit of money, or further evidence of Mr Nguyen’s financial support. The only evidence provided in response to that request was the commitment letter dated 20 January 2017 (referred to in paragraph 19 above). The delegate expressly found that this did not amount to compelling evidence of a significant amount of money being given to the uncle. The applicants were therefore aware that, for the purposes of this application some further evidence would be required but have chosen to continue to rely on the commitment letter without any further evidence that any money was actually delivered. The letter claims that Mr Nguyen sent the money to his brother from Australia, in which case some record (or records) must exist. I draw an adverse inference from the fact that no such material has been produced.

26. At the hearing, Mrs Nguyen gave evidence that both she and her husband from time to time make remittances to Phuong and that this can be seen from the names on the money transfers. She said this is necessary because Phuong’s mother does not support her. Phuong shares the residence in Ho Chi Minh City with her grandmother, uncle, aunt and cousins. She said that Phuong graduated in 2019 and does not think she is doing anything at the moment.

27. Phuong’s evidence was that she is still studying at the University of Economics Ho Chi Minh City and has one more full year subject to complete. She said that the projected completion date on her certificates of enrolment were postponed by her obligation to undertake national service. This was undertaken between February and May 2017. She says she was not paid for this: she was required to stay in military barracks and to pay for all of her food and accommodation herself. She said that this amounted to some VND 3 million. She undertook to provide documentation for this and for the discrepancies as to her university documents referred to in paragraph 24 above.

28. In a post hearing submission, the document provided as to her national service indicates that this was completed by 22 March 2016. If indeed the effect of her national service was to defer her graduation date, this would have been apparent on the face of the material supplied to the delegate.

29. Also attached to the post hearing submission were two receipts from the “Institute for Economic Research”, both dated 10 October 2019. One was said to be for tuition fees in the amount of VND 1.2 million (AU$77.71) and the other for a ‘certificate fee’ for a business accounting class in the amount of VND 220,000 (AU$14.25). The receipts appear to have no relationship with the University of Economics and, given that they are pro forma receipts filled in by hand with little provenance and no connection that I can discern to Phuong’s evidence, I can give them little weight.

30. Finally, there was a document dated 9 March which refers to working in an internship as a “full time accounting trainee” with a company, the name of which has been translated as Sang Environmental Service Trading Transport Company Limited.  This document states that Phuong is in this role for the period 2 January 2020 to 9 April 2020 as a student of BS001 class, Faculty of Economics, University of Economics, Ho Chi Minh City.  Because no documents have been produced to the connect this internship or traineeship with her purported university studies, I give it no weight.

31. The evidence of Mr Nguyen did not provide me with any reason to be confident about the authenticity of any of the documents submitted for the purposes of this application. He could provide no answer as to why Phuong’s projected 2019 graduation date would not take into account her national service obligations. He had no comment to make on my concerns about the authenticity of the 2020 university enrolment document, other than to say that this was the document Phuong sent to him. As to the disparity in the dates on the face of the Property Transfer, he had no comment other than that 2014 was the date of the sale.

32. All of the evidence presented on this application, the only new material in which I can have any confidence are the money transfers. These amount to a total of AU$13,500 over a period of four years. While this sum, no doubt, goes much further in Vietnam than it does in Australia, it is not sufficient to establish that Phuong is dependent upon Mr and Mrs Nguyen within the meaning of the regulations. There is no material before me upon which I can be satisfied that, since the end of 2016 at the latest (that being the last evidence of university enrolment that I can accept) Phuong has been in continuous full-time study.

33. On the basis of all of the evidence, I am not satisfied that Phuong is wholly or substantially reliant on her visa-holding father for financial support in order to meet her basic needs for food, clothing and shelter. I therefore find that Phuong does not meet the definition of dependency.

34. Clause 445.222 requires that, at the time of decision, the visa applicant continues to be a dependent child of the visa holding parent. I am not satisfied that she meets this clause and therefore am not satisfied that she meets subregulation (1) of Regulation 1.05A. There is no suggestion that she is in any way incapacitated for work and she therefore does not meet subregulation (2) of regulation 1.05A.

    DECISION

35. The Tribunal affirms the decision to refuse the subclass TK 445 visa.

    James Lambie
    Senior Member