Nguyen (Migration)

[2019] AATA 2721

Nguyen (Migration) [2019] AATA 2721 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Quynh Huong Nguyen

CASE NUMBER:  1704108

DIBP REFERENCE(S):  BCC2014/1866949

MEMBER:Amanda Mendes Da Costa

DATE:16 May 2019

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.311 of Schedule 2 to the Regulations;

·cl.820.321 of Schedule 2 to the Regulations; and

·The application for the Partner (residence) (Class BS) visa be reconsidered in light of this decision.

Statement made on 16 May 2019 at 10:41am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – member of family unit – dependent of primary visa applicant – wholly or substantially reliant – casual employment with fast food chain – insufficient to provide for basic needs – psychological vulnerabilities – capacity to maintain gainful employment – reliance in fact – full-time student – no longer employed – financial support from step-father – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.05A; Schedule 2, cls 820.311, 820.321

CASES
Al Naqi [2007] FMCA 874
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 20 February 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant, Kim Hoa Nguyen lodged an application for a UK Partner (temporary) and a BS Partner (residence) visa on 31 July 2014 on the grounds of being in a spousal relationship with an Australian citizen, Mr Jason Tarascio who lodged a sponsorship form in support of the application.

3. The review applicant (the applicant) was included in the visa application as a secondary applicant and was also included in the sponsorship of Mr Tarascio. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.311 and cl.801.221 because the delegate was not satisfied that the applicant was dependent on her mother as defined by r.1.05(A)(1).

5. The applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Kim Hoa Nguyen, Mr Jason Tarascio and Ms Giang Huong Nguyen. 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 her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is dependent on her mother, Mrs Kim Hoa Nguyen.

9. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

10. For the purposes of the visa application the relevant periods are the time of application and the time of decision.

11. The applicant arrived in Australia in 2010 on a Student visa, to enable her to commence studies in Australia.  Until then she had lived in Vietnam with her mother and brother after the divorce of her parents.  The applicant’s father remains in Vietnam and has remarried.  After arriving in Australia, the applicant initially lived with one of her maternal aunts and subsequently commenced living with her mother who arrived in Australia with the applicant’s younger brother in 2014.  The applicant’s mother lodged an application for a UK Partner (temporary) and BS Partner (Residence) visa on 31 July 2014 on the grounds of being in a spousal relationship with an Australian citizen, Mr Jason Tarascio who lodged a sponsorship form in support of the application.  The applicant was included in her mother’s visa application as a secondary applicant and was included in the sponsorship of Mr Tarascio.

    Applicant’s evidence

12. The applicant adopted the contents of her Statutory Declaration dated 15^th April 2019.  She told the Tribunal that she had been living with her mother, brother and Mr Tarascio for the past five years.  Her mother and Mr Tarascio are now married.

13. The applicant told the Tribunal that she commenced her studies in Australia with an English course and between 2012 and 2013 she completed a Diploma of Business Studies at the Australian Technical and Management College.  In 2013 the applicant commenced studies for a Bachelor of Commerce at the Federation University.  In November 2015 the applicant deferred her studies.  She told the Tribunal that the reason for deferral was due to her failure to make friends at university.  This meant that she wasn’t chosen by other students to participate in group assignments and was forced to complete assignments on her own.  After failing a number of subjects she decided to defer her studies.

14. The applicant explained that whilst at school in Vietnam she had been teased and bullied about her appearance.  This was due to problems with her teeth and the effect on her facial appearance.  The applicant said that she thought her difficulties in making friends during her Bachelor of Commerce studies was due to her dental problems and her appearance.  The Tribunal accepts that the applicant’s appearance has been and continues to be a sensitive issue for the applicant and has affected her self-confidence.  The applicant is currently wearing braces on her teeth and is yet to receive further dental treatment. She estimated the cost of her treatment to date as $20,000.  The cost of this treatment has been wholly met by her mother.

15. The applicant returned to her studies in November 2016, which she completed in 2018.  The applicant is currently enrolled in a Diploma of Marketing course at St Peter’s College in Melbourne.  The applicant is undertaking these studies on a fulltime basis and expects to complete the course in May 2019.

16. The applicant told the Tribunal that her mother had been responsible for paying all of the tuition fees associated with her studies in Australia.  In April 2013 the applicant commenced working on a part-time basis at a KFC fast food outlet, where she worked until 2017.  The applicant said she worked approximately 20 hours per week, serving food.  She obtained the job with the help of one of her aunts and although she enjoyed the work she eventually ceased due to health issues.  The applicant explained that she experienced difficulties in sleeping and didn’t want to talk to anyone, or to serve customers at the KFC outlet where she worked.

17. The applicant provided the Tribunal with PAYG payment summaries for her employment with KFC for the years ended 30 June 2013; 2014; and 2018 which show that her income in those years was 2013 $1,451; 2014 $10,268 and 2018 $151.  The applicant said that she was paid approximately $200 per week in wages for 20 hours work per week.  In her decision, the delegate observed that in the applicant’s Form 47A she stated that her income from her employment with KFC is approximately $400 per week.  When questioned by the Tribunal about this, the applicant said that in 2016 her wages increased to approximately $400 per week, although this did not involve her in working many more hours per week.

18. The applicant said that she used her wages to buy a car in 2016 for $6,500 and also textbooks.  She also made some contribution to the cost of her dental treatment.  Throughout the period of her employment, her mother continued to pay for all her expenses (other than textbooks) and gave her a fortnightly allowance of between $150 to $200 per fortnight.  This allowance has continued since she ceased employment with KFC.

19. The applicant also told the Tribunal that her father (in Vietnam) had sent her and her brother money.  She estimated that her father had sent her approximately $10,000 whilst she had been living in Australia.

20. In her decision, the delegate observed that there were several large transfers of money to and from your account from two other accounts, as well as regular income from employment.  The applicant told the Tribunal that her mother had transferred money into her bank account and also gave her cash which she deposited into her own bank account.  Although the applicant could not remember how much money was transferred into her account by her mother, she said that her mother did this because she was not familiar with internet banking and did not have a bank account.   The applicant did not retain this money for her own use and it was used by her mother for household expenses and the applicant’s tuition fees and dental treatment.

21. The Tribunal questioned the applicant about her plans for the future if the visa was granted.  She said that she had made no plans for seeking further employment when her studies were completed.  The applicant explained that she didn’t know what she wanted but considered that she wasn’t ready for work and was not good enough to find a job.

22. The applicant said she was scared to return to live in Vietnam as her father has remarried and her mother’s family were living in Australia.  She told the Tribunal that apart from the two years after she arrived in Australia, she had never been separated from her mother.  The applicant said that she could not live without her mother and would rather die than return to Vietnam to live.

23. The Tribunal notes that it was provided with a medical reports authored by Dr Leon Turnbull, Assessment and Forensic psychiatrist, dated 4 April 2019.  In his report Dr Turnbull states that he assessed the applicant that day for the purpose of providing a report for the review hearing.

24. Dr Turnbull opines that the applicant has longstanding psychological vulnerabilities and a major depressive condition and would struggle to be in the workplace and fend for herself financially.  He further states that the applicant would psychiatrically deteriorate if she returned to Vietnam.

25. The applicant told the Tribunal that she had only seen Dr Turnbull on one occasions and had not received any psychological or psychiatric treatment in Australia.  She explained that the reason for this was the expense of such treatment.  Given her current condition she and her mother were looking for a psychologist or psychiatrist to treat her.

    Evidence of Kim Hoa Nguyen

26. Mrs Nguyen is the applicant’s mother.  She adopted the contents of her statutory declaration dated 15 April 2019.  Mrs Nguyen told the Tribunal that she had cared for her daughter and son in Vietnam prior to her daughter leaving for Australia in 2012.  In 2014 Mrs Nguyen arrived in Australia and was granted a Partner visa on the basis of her relationship with her current husband, Jason Tarascio.  She is divorced from her first husband, who is the father of her two children.

27. Mrs Nguyen told the Tribunal that her daughter had been living with her, her husband and son since 2014.  She had been providing financial support to the applicant during that time and also provided financial support to her daughter when she initially lived in Australia with one of Mrs Nguyen’s sister’s.  Mrs Nguyen said that this financial support included an allowance which she had paid to her daughter each week.  She was currently giving her daughter between $4150 to $4200 per fortnight as an allowance.

28. The Tribunal questioned Mrs Ngueyn about the applicant’s employment with KFC between 2013 and 2017.  Mrs Nguyen explained that she encouraged her daughter to obtain employment because she was was not confient about her appearance.  This was due to significant dental problems which had changed the shape of her daughter’s face and necessitated costly and prolonged treatment in Australia.  This teeatment had been funded by Mrs Nguyen and cost between $25,000-$28,000.  As Mrs Nguyen stated in her statutory declaration, that approximately $12,000 is still owed for such treatment.  Mrs Nguyen said that this is the estimated costs for the remainder of the treatment required for her daughter.

29. Mrs Nguyen told the Tribunal that when her daughter was working at KFC her wages were used to buy textbooks and travel expenses.  All of her daughter’s tuition fees have been paid by Mrs Nguyen.

30. The Tribunal questioned Mrs Nguyen about her daughter’s evidence that in 2016 she was earning $400 per week from her employment.  Mrs Nguyen said that her daughter had not increased the hours she worked, but had received extra pay for working on public holidays and night shifts.

31. Mrs Nguyen told the Tribunal that she advised her daughter to cease working in 2017 after she had received the delegate’s decision and became upset.  When the Tribunal observed that the applicant had claimed in her evidence that the reason she ceased working was her concerns about her appearance, Mrs Nguyen said that her daughter felt uncomfortable about her appearance because of her dental problems and Mrs Nguyen suggested she stop working.

32. Mrs Nguyen told the Tribunal that she would be concerned for her daughter’s welfare if the visa was not granted and she was required to return to Vietnam.  Mrs Nguyen explained that she no longer has any family living in Vietnam and she didn’t know how her daughter could cope on her own in Vietnam.

33. The Tribunal questioned Mrs Nguyen about whether she gave extra sums of money to her daughter whilst she was working at KFC.  Mrs Nguyen said that she had given her daughter extra sums of money to deposit into her bank account because Mrs Nguyen was not familiar with the use of internet banking and her daughter did this for her.  When asked how much she had given her daughter, Mrs Nguyen said it was a long time ago but she thought it had been a total of between $5,000 and $6,000.  This was money which Mrs Nguyen had received from relatives in Vietnam.  Mrs Nguyen explained that she had savings and an inheritance in Vietnam, which her sister, Giang had brought to Australia after several trips to Vietnam.

34. After her sister had given evidence, Mrs Nguyen told the Tribunal that in her earlier evidence, she had meant that she had given her daughter a total of $65,000 in lots of between $5,000 and $6,000.

    Evidence of Jason Tarascio

35. Mr Tarascio is the applicant’s step-father and has full-time employment as a sales representative.  He told the Tribunal that he had been in a relationship with Mrs Nguyen for five and a half years and married since 2014.  He confirmed that the applicant had been living with him and her mother for the past five years.  Mr Tarascio said that all of the applicant’s living expenses have been borne by himself and his wife whilst the applicant has been living with them.  He and his wife have been giving the applicant an allowance of approximately $200 per week.  This allowance is arranged by his wife.

36. Mr Tarascio told the Tribunal that his step-daughter was coping with her studies but he was not sure if she was able to cope with employment at this stage.  He explained that his step-daughter ceased her previous employment with KFC because she didn’t feel she could cope with the job.

37. Mr Tarascio further explained that his step-daughter’s mental health had been severely affected by the decision to refuse her a visa and there had been a big change in her emotional stability in the past two years.

38. When questioned about the funding for his step-daughter’s dental treatment and tuition fees, Mr Tarascio said that his wife received money from Vietnam which was used to fund these expenses.  He estimated the cost to date of his step-daughter’s dental treatment as approximately $16,000.

    Evidence of Giang Huong Nguyen

39. Mrs Nguyen is the applicant’s maternal aunt.  She told the Tribunal that the applicant had experienced dental problems throughout her life and had been bullied at school due to the prominence of her front teeth and the effect of this on her appearance.  Ms Giang Nguyen said that her niece had been bullied at school and this had affected her confidence.

40. Mrs Giang Nguyen explained that the applicant had previously been reluctant to attend university due to her appearance and in the last two to three years had suffered depression and was often teary.  She said the applicant was reluctant and fearful to return to Vietnam because she had no real connection with her father and had no maternal relative to support her there.

41. In relation to the monies paid into her nieces bank account by her sister, Ms Giang Nguyen told the Tribunal that she made frequent trips to Vietnam each year and had brought back the money in instalments.  She estimated that in total, she had brought back approximately $65,000 for her sister in lots which were under $10,000.  Ms Giang Nguyen explained that the money came from an inheritance and her sister’s savings in Vietnam.  These savings came from superannuation and a redundancy package which her sister had received after 15 years of employment with a large insurance company.

    Applicant’s submissions

42. The following submissions were made on behalf of the applicant:

    ·At the time the visa application was made the applicant was living with her mother and was a full-time student, enrolled in studies for a Bachelor of Commerce degree.  Although she was working on a casual basis, her wages was insufficient to meet her basis needs and she was financially reliant on her mother.

    ·For at least 12 months prior to the lodging of the visa application the applicant was substantially reliant on her mother to meet her basic needs, including her tuition fees and health expenses.

    ·In the 12 months prior to the lodging of the visa application, the applicant’s wages ($10,268) would not have covered a quarter of her basic financial needs.

    ·The applicant entered the workforce on a casual basis to gain work experience in Australia, to increase her confidence in the work force and socialisation skills.  It was accepted by the applicant that she would not be able to earn a sufficient income to support her own basic living expenses.  Thus the support provided by her mother was greater than any other support she received.

    ·The delegate referred to the Youth Allowance as provided to the Department of Human Services and drew comparisons between the applicant’s wages and the Youth Allowance of $239 per fortnight.  It was submitted that this comparison was not appropriate for the applicant’s circumstances, as a recipient of a Youth Allowance is also entitled to a health care card and subsidised education, housing and transportation expenses.

    ·The applicant’s previous employment ceased due to her poor mental health.

    ·It is in the best interests of the applicant for her to remain with her mother in Australia, in order to seek and obtain adequate psychiatric treatment.  This is supported by Dr Leon Turnbull.

1. The definition of dependent requires that the person have been wholly or substantially reliant upon the other person for financial support in relation to their basic needs. The term substantially reliant involves a concept of predominance and whether the applicant is primarily, essentially or in the main dependent on the other person.  In Huynh v MIMIA (2006) 152 FCR 576 the Full Federal Court found that the proper construction of dependent under the current definition of r.1.05A does not carry any implication of the notion of necessity or lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.  

2. The Tribunal finds that at the time of application the applicant was engaged in full-time studies at Federation University and had been living with her mother and step-father since 2012.  The applicant has never married nor partnered.  The evidence before the Tribunal shows that the applicant has never lived independently of her family.  Before coming to Australia, she lived with her mother and brother.  After arriving in Australia, she lived with her aunt for two years before her mother and brother arrived here.  The Tribunal is satisfied that whilst living with her aunt, the applicant was supported by her aunt and mother.

3. The applicant was previously engaged in part-time work at a KFC outlet.  At the time of application the applicant was working there for approximately 20 hours per week.  The Tribunal is satisfied from the PAYG payment summaries for the year ended 30 June 2013 and 2014 that the applicant earned $1,451 and $10,268 respectively.  Apart from her wages  the applicant received no other earnings. Whilst the applicant’s weekly earnings (approximately $200 per week) provided her with some financial support, the Tribunal is satisfied that it was not sufficient to provide for all of the applicant’s basic needs and that she substantially relied on her mother for such support.  The Tribunal finds that such needs included the applicant’s accommodation, food and clothing.

4. The Tribunal heard evidence from the applicant, her mother and her aunt about substantial amounts of money (totalling $65,000) which were deposited in and transferred between the applicant’s bank accounts.  The Tribunal finds the evidence of the applicant and her mother about the reason for Mrs Nguyen using her daughter’s bank accounts for the deposit of these monies, unsatisfactory and unreliable.  On the other hand, the Tribunal finds the applicant’s aunt, Giang Huong Nguyen to be a credible witness and accepts her evidence that she brought monies into Australia from Vietnam for her sister over several trips.  The Tribunal is not satisfied that Mrs Nguyen used her daughter’s bank accounts for the deposit of money because she was unfamiliar with the use of internet banking.  The Tribunal considers that if Mrs Nguyen had been unable to use internet banking services she was capable of using more traditional methods to effect banking transactions. Although the Tribunal does not accept the reasons given by either the applicant or Mrs Nguyen regarding these monies, the Tribunal does accept that the monies belonged to the applicant’s mother and not the applicant.

5. The applicant ceased her employment with KFC in 2017.  The Tribunal was provided with a report by Dr Leon Turnbull, psychiatrist, dated 4 April 2019.  The Tribunal notes that Dr Turnbull examined the applicant on that date for an assessment of her mental health.

6. In that report Dr Turnbull provides the following opinions (at p. 4):

   My impression is this lady has longstanding psychological vulnerabilities …

   It is my impression that she has developed a major depressive condition.  I do not think that was completely present prior to being informed that her visa was being cancelled, and I think, in large part, it is in response to that.

   And at p. 5:

   It seems that her depression also interfered with her work, such that she lost employment and has not been able to gain any further.  If I was assessing her work capacity, I would say this lady would struggle to be in the workplace and fend for herself financially.  I am not able to identify any employment that she could currently undertake given her level of depression.  She would be an unreliable employee and I do not see how she could interact with colleagues effectively.

7. Whilst the Tribunal accepts Dr Turnbull’s evidence, the terms of r.1.05A (1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

8. Accordingly, the Tribunal finds that given the applicant is a full-time student, is no longer employed and is living with her mother and step-father, at the time of application she was   relying on her mother for support for her basic needs of food, clothing and shelter.

9. Regulation 1.05A(1) requires that at the relevant time, and for a substantial period immediately before that time, a dependent person must be wholly or substantially reliant on the other person for financial support for their basic needs.

10. Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months.  Whilst the Tribunal may have regard to Departmental policy, it is not binding on the Tribunal.

11. The Tribunal has considered the history of the applicant’s living arrangements with her mother, the applicant’s studies and her employment history and the applicant’s physical and mental health issues.  Upon a consideration of these matters, the Tribunal considers that a period of 12 months is a substantial period for the purpose of determining whether the applicant is dependent on her mother.

12. Based on the evidence regarding the applicant’s periods of employment with KFC; her income in the 12 months immediately prior to the application and this decision; the applicant’s past and current studies; and the financial support provided by the applicant’s mother from 2013 to 2018, the Tribunal finds that at the relevant times (i.e. the time of application and decision) the applicant was wholly or substantially reliant on her mother for financial support for her basic needs.

13. Regulation 1.05(A) (1) identifies a single person (e.g. the primary visa applicant or the sponsor) on whom a visa applicant is required to be ‘dependent’.  However, the Tribunal notes that the applicant’s mother is married to Mr Tarascio and they live together with the applicant and her younger brother.  The Federal Magistrate’s Court in Al Naqi [2007] FMCA 874 took the view that a broad practical judgment is required in the circumstances of the particular case and this may require consideration of the underlying source of the practical support and the reasons for it.  Federal Magistrate Riethmuller at [16] commented that:

    On a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.

14. The Tribunal is satisfied that given the applicant is living with her mother, step-father and brother, living expenses are shared by her mother and step-father and that Mr Tarascio has treated the applicant and her brother as his own children.  The Tribunal accepts that Mr Tarascio’s attitude to supporting the applicant is a result of his relationship with her mother and his commitment to her.  The Tribunal further accepts that Mrs Nguyen has used her own savings from Vietnam to pay for the applicant’s health care and education and has made a contribution to the family’s living expenses.  Accordingly, the Tribunal finds that although the applicant has received financial support from her step-father, this is due to her mother’s relationship with him.  Her mother is otherwise responsible for the applicant’s basic needs.

15. Given the findings above, the Tribunal is satisfied that at the time of application and at the time of decision, and for a substantial period immediately before that time, the applicant is wholly or substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter. Further, the Tribunal finds that the applicant’s reliance on her mother is greater than her reliance on any other person or source of financial support to meet those basic needs.

16. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

17. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.820.311 of Schedule 2 to the Regulations; and

    ·cl.820.321 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member