Nguyen (Migration)

[2020] AATA 3353

Nguyen (Migration) [2020] AATA 3353 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dang Thanh Thien Nguyen

CASE NUMBER:  2003788

DIBP REFERENCE(S):  BCC2018/2698758

MEMBER:P. Maishman

DATE:11 August 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) Significant Business History visa.

Statement made on 11 August 2020 at 11:24am

CATCHWORDS
MIGRATION – Business Skills - Business Talent (Permanent) (Class EA) – Subclass 132 (Business Talent) – member of family unit – son of primary applicant – age – under 23 when father’s application made, over 23 at time of delegate’s decision – dependency – reliant for financial support because of incapacity for work due to loss of bodily functions – joint pain and ‘trigger finger’ – helping in father’s business – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A(1)(b), 1.12(2)(b)(iii), Schedule 2, cl 132.311

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 Department of Home Affairs on 17 February 2020 to refuse to grant the visa applicant a Business Skills - Business Talent (Migrant) (Class EA) (subclass 132) visa under s.65 of the Migration Act 1958 (the Act). The applicant was included in the application of his father, Thanh Tung Nguyen, as a member of his family unit. Mr Thanh Tung Nguyen applied for the visa on 19 July 2018.

2. The criteria for the grant of a subclass 132 visa are set out in Part 132 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied at least one member of the family unit. Other members of the family unit who are applicants for a visa in this subclass need only satisfy the secondary criteria.

3. The delegate refused to grant the visa on the basis did not satisfy cl.132.311 as the delegate was not satisfied the applicant is a ‘member of the family unit’ of a person who holds a subclass 132 visa.

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, 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 video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 31 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Relevantly to this case, cl.132.311 must be satisfied at the time a decision is made on the application. The provision requires the applicant to be a ‘member of the family unit’ of a person who holds a subclass 132 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and to have made a combined application with that person.

9. The applicant does not claim to meet the primary criteria. There is no evidence before the Tribunal indicating the applicant would satisfy the primary criteria for the grant of the visa. The Tribunal finds the applicant does not meet the primary criteria for the grant of the visa.

10. The issue in the present case is whether the applicant is a ‘member of the family unit’ of a person who is the holder of a Subclass 132 visa.

11. The term ‘member of the family unit’ is defined in r.1.12. Relevantly, r.1.12(2)(b)(iii) provides a person is a ‘member of the family unit’ of the family head if they are the child of the family head, have turned 23 years, and under r.1.05A(1)(b) are ‘dependent’ on the family head or the spouse of the family head.

12. A person must be wholly or substantially reliant on another person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions to be considered ‘dependent’ under r.1.05A(1)(b).

13. The Tribunal had before it a copy of the Department’s file. The file contains a copy of the applicant’s translated birth certificate showing he was born on 27 August 1995. His father’s name is recorded as Thanh Tung Nguyen. The Department received a Form 47A signed 20 January 2020 identifying Thanh Tung Nguyen as the main visa applicant. The applicant is identified as a member of the family unit of Thanh Tung Nguyen. The form (Q25) indicates the applicant is not employed and does not identify any disability that stops him from working or a report from a qualified medical practitioner to support a claim the applicant has a disability.

14. The applicant gave the Tribunal a copy of the delegate’s decision record. The delegate says the applicant’s father is the main visa applicant and family head in respect of the application.

15. The Tribunal finds on the evidence that the applicant is a child of Thanh Tung Nguyen, the family head, and turned 23 years old on 27 August 2018.

16. The Tribunal invited the applicant to provide information in writing about his reliance on any other person for financial support because he has an incapacity for work due to total or partial loss of his bodily or mental functions. The applicant’s representative provided a written submission in response on 2 July 2020. The representative submitted the applicant was well under 23 years of age when his parents visa application process started. The processing delay in the Department was beyond their control and the applicant was over the age of 23 by the time the decision was made. The representative submits the primary applicant’s application has not yet been decided. The representative submits the applicant has always been financially dependent on his parents and remains so. The applicant’s ability to obtain professional work is severely restricted because of the Covid 19 pandemic. 

17. The applicant gave oral evidence that he continues to be financially, emotionally, and psychologically dependent on his parents. The applicant gave oral evidence he has joint pain from playing sport. He no longer plays sport and takes medicine given to him by his doctor. The Tribunal was concerned the applicant did not raise any medical conditions despite the Tribunal’s invitation on 18 June 2020 to give information about any medical issues. The applicant could not remember the name of the medicine he takes twice a week or identify the name of any medical condition diagnosed by his doctor. The applicant described that he has tightening of the tendon in the middle finger of his left hand. The applicant said his right hand was dominant. The applicant said he was unable to lift heavy weights. The applicant suggested he could obtain a letter from his doctor. The applicant said since finishing his marketing studies he had been helping look after this father’s Australian business interests. The applicant said he spends about 39 or 40 hours per week behind the scenes seeing how the workers were going and quality checking the spices and food being used. The applicant denied the Tribunal’s suggestion that he was undertaking a managerial role which might be described as work. The job market for a person with a marketing degree is very competitive and he has been unable to find work. His visa conditions do not allow him to work and he is reliant on his father’s financial support. He was under 23 years old when his father commenced the visa process but receiving state sponsorship for his father’s visa application was prolonged.

18. After the hearing the applicant gave the Tribunal a letter in Vietnamese date 5 February 2020 and a referral from Dr Son Nguyen dated 22 July 2020. The applicant says the Vietnamese letter is from a Doctor and identifies he has a medical problem with one of his fingers called ‘trigger finger’. The Tribunal gives this document no weight as it is untranslated and, even if the explanation is accepted, does not identify which finger or the impact of the condition on the applicant’s ability to work.  The referral from Dr Nguyen seeks ultrasound and x-ray of the right hand for investigation of reduction in flexion of the right mid finger. The document is inconsistent with the applicant’s evidence to the Tribunal that his left hand caused him to be incapacitated for work. The Tribunal attributes no weight to the applicant’s claim of being incapacitated in light of the inconsistent evidence about which hand is injured and the applicant’s evidence that he works 39 to 40 hours looking after his father’s business interests.

19. The Tribunal does not accept the applicant is reliant on his father’s financial support because  his finger condition is a total or partial loss of his bodily function that makes him incapacitated for work.   

20. The Tribunal accepts the applicant was under 23 years old on 19 July 2018 when the application was made. The Tribunal accepts the applicant’s evidence that he continues to be financially, emotionally, and psychologically dependent on his parents.

21. The applicant was over 23 years old at the time the delegate made a decision. The Tribunal is not satisfied the applicant is wholly or substantially reliant on any other person because he is incapacitated for work due to the total or partial loss of his bodily or mental functions.

22. The applicant does not meet the definition of ‘dependent’ under paragraph r.1.05(1)(b) and does not meet the definition of a ‘member of the family unit’ contained in r.1.12(2)(b)(iii) at the time of this decision. The Tribunal acknowledges a decision has not been made by the delegate about the primary applicant’s visa, however as the applicant does not meet the ‘member of the family unit’ definition the applicant cannot meet the definition when his father’s visa is decided. Therefore the applicant does not meet cl.132.311.

23. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) Significant Business History visa.

    P. Maishman
    Member