Nguyen (Migration)

[2022] AATA 5179

Nguyen (Migration) [2022] AATA 5179 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tan Thuong Nguyen

VISA APPLICANT:  Mr Anh Vu Nguyen

CASE NUMBER:  1834040

HOME AFFAIRS REFERENCE(S):          OSF2018/009582

MEMBER:Peter Vlahos

DATE:14 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.211of Schedule 2 to the Regulations; and

·cl 101.221of Schedule 2 to the Regulations.

This Statement was made on 14^th July 2022 at 8.00AM.

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – child/parent relationship – reliance on the parent for financial support to meet certain basic needs – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 101.211, 101.221

CASES
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 2 November 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 5 June 2018. 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).

3. The criteria for a subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Relevant to this case, they include cl. 101.211 which requires the applicant to be a dependent child of an Australian citizen or permanent resident.

4. The delegate refused to grant the visa on the basis that cl 101.211 (1)(a) was not met because the delegate was not satisfied that the visa applicant was the dependent child of the sponsor (the review applicant) because he (the sponsor) was not the one that was covering the costs of the applicant’s basic needs but were covered by the applicant’s biological mother and the sponsor’s former wife.

5. The review applicant appeared before the Tribunal on 14 June 2022 to give evidence and present arguments. The hearing was conducted via a teleconference due to the persistence of protective measures having been put in place due to the persistence of the COVID-19 pandemic and the continuation of public health protection measures in place in the State of Victoria, which was held with the consent of the review applicant.  The Tribunal also received oral evidence from the review applicant’s son, Mr. Anh Vu Nguyen.  

6. The parties were not represented at the hearing by a registered migration agent or qualified Legal Practitioner.

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 this case is whether visa applicant meets the dependent child criteria at the time of application.

   Dependent child criteria

9. 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).

   Dependent child

10. 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 reg 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.

11. The review applicant has provided the Tribunal with the birth certificate for the visa applicant which shows his date of birth as 26 November 1996.[1] This means that he was 21 years-of-age at the time of application. There is no evidence that the visa applicant was engaged or partnered. The Tribunal finds that the visa applicant had turned 18 years at the time of application and was a child as defined in reg. 1.03(a).

    [1] see, birth certificate, in Department of Home Affairs File no. OSF2018/009582.

12. As the applicant was under the age of 25 years at the time of application, he meets cl.101.211(1)(b).

13. Where the applicant was under 18 years at the time of application, they are also assessed at the time of decision as if still under the age of 18 regardless of whether they have since turned 18 (cl.101.221 (1)(b)). The visa applicant is now 25 years-of-age and the Tribunal finds that he is a dependent child at the time of this decision.

14. Accordingly, cl.101.211(1)(a) was met at the time of application and continues to be met at the time of decision.

    Child/Parent relationship

15. At the time of application, the visa applicant must be a child (other than an adopted child) or specific kind of stepchild of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

16. The review applicant told the Tribunal that he arrived in Australia on 1 March 2011, then as the holder of a Prospective Spouse visa. He became a permanent resident/Australian citizen in 2016. The review applicant had previously been married in Vietnam but had divorced. The review applicant told the Tribunal that he divorced his first wife in 2000. From this previous marriage, the review applicant had two children a daughter and the applicant in this matter, Mr Nguyen Anh Vu, who is current living in Vietnam with his mother and is undertaking studies in Vietnam at a branch of Victoria’s RMIT University. The Tribunal was told by the review applicant that his son had finished his initial studies in 2020 and had re-enrolled for further studies in Professional Management.[2]

    [2] see, AAT File, for confirmation of applicant’s enrolment for further studies at the Vietnam campus, RMIT University.

17. The review applicant said that as part of his understanding with his former wife, he had left deposited in a bank in Vietnam approximately VND600,000,000 (AUD$35,800.00) for her to provide for the applicant’s University education. The review applicant also said that in addition to allowing a provisional fund for the applicant’s education needs, he and his spouse in Australia provided the applicant AUD$300.00-AUD$400.00 each month which provided for the applicant’s day-to-day needs, living expenses and food[3].

    [3] see, Money Transfers on the Tribunal’s File.

18. The applicant when questioned by the Tribunal said that he was ‘totally dependent’ on his father and was still living with his mother (the review applicant’s former spouse) in ‘rented premises’ since his parents divorce in March 2011. The applicant confirmed that his father left funds in the bank for his mother to pay for the applicant’s school fees and his personal needs. The applicant also told the Tribunal that his father had provided further funds on a monthly basis to him to assist him with his daily needs as he was not working but studying.

19. The Tribunal asked the review applicant about the transfers of money recorded in the delegate’s decision record.[4]

    [4] see, decision record at p.3 (paragraph 10)

20. The Tribunal noted the following:

    ·On 5 April 2018 the sponsor (review applicant) sent money to the applicant through the applicant’s sister, Nguyen Thi Minh Thu to cover the applicant’s school fees and all personal needs. Four money transfers combined to amount to AUD$4,900.00

    ·Two money transfers showing a combined total amount of AUD$5,500.00 sent by the sponsor to the applicant’s sister.

    ·Three money transfers for tuition fees paid by the applicant’s mother (October 2017) (approximately, AUD$3,500.00), March 2018 (approximately AUD$4,500.00) and July 2018 (approximately AUD$4,500.00).

21. The review applicant confirmed that these amounts had been transferred to his daughter because as he said, ‘his son was not there to receive the money.’ The review applicant said that he had two children from his previous marriage who still live with their mother and ‘the family’ receives the money he sends, and he sends it for their benefit and in particular to cover the needs of his son who is not working but is studying.

22. The applicant told the Tribunal that he is not working but studying as his father expected and he had no other means of providing for his day-to-day expenses and needs. The applicant also confirmed what the Tribunal was told by his father, that he and his mother are currently living in ‘rental premises’ in Ho Chi Min City which is paid for by his father with funds he provides to them on a monthly basis.

    Dependent child

23. 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 reg 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.

24. 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].

25. Since, his arrival in Australia, the sponsor (the review applicant) declares that he has continued with his ‘parental obligations’ by ‘sending money’ to the child’s mother for ‘food, clothes, school fees and other living expenses’. He categorically declares that that ‘obligation’ continues. The applicant said that that he has not ended his responsibilities for son even though his relationship with his former wife ceased in 2011.The review applicant said that he has always followed his son’s progress in his education which he has always encouraged and desired for him. This state of affairs was confirmed by the applicant in his evidence to the Tribunal, and in the evidence he submitted for the Tribunal to consider[5] in which the Tribunal observed that the review applicant had not allowed his responsibilities to lapse even though he had married for a second time and was in Australia. The provision of funds had been ongoing and considerable in amounts for Vietnam.

    [5] Ibid, statements to the Tribunal submitted by the applicant, see AAT File.

26. Since his arrival in Australia, the sponsor declares that he has continued with his ‘parental obligations’ by ‘sending money’ to the child’s mother for ‘food, clothes, school fees and other living expenses’. He categorically declares that that ‘obligation’ continues. The sponsor declares that the non-grant of the visa to the applicant would cause a severe break in his family unit; after all he sees his son’s education and success in achieving this education as a support for him in later years when he will require his son’s support in his old age.

27. The Tribunal also noted from the evidence submitted by the review applicant (the sponsor) that he has been providing for the applicant all the necessities of life as one would expect from a parent who fulfilled his responsibilities towards their child: see, for example, the records of money despatched to the applicant for his needs, living and education while he is living in Vietnam.

28. It was also noted by the Tribunal from the evidence of the sponsor, that this ‘assistance’ has been ongoing and has continued while he has been in Australia. More to the point, it was emphasised by the sponsor in his evidence before the Tribunal that if the applicant did not receive this money, he would have no means to survive while being in Vietnam. The applicant was wholly dependent (on the evidence before the Tribunal) on the assistance he received from his sponsor, and he had no support from any employment (he was not employed but a full-time student) or from his mother who also relied on money from her former husband. Indeed, from the evidence before the Tribunal, the applicant had no other means of financial assistance – other than what was provided to him by the sponsor, the person who was his father.

29. From the evidence before the Tribunal from both the review applicant and, in particular, the evidence by the visa applicant, he had an ongoing dependence on his father which continued from a young age till now. His father continues to remain in close contact with the applicant and considers him as part of his new family in Australia.

    Evidence from the review applicant’s second wife

30. The Tribunal also heard evidence from the review applicant’s second wife concerning the relationship and dependence of the sponsor with the applicant. The witness said that though the money might have been in low amounts, they were nevertheless transferred to her husband’s son (her stepson, as she described the applicant to the Tribunal) to assist him with his ‘needs’ and ‘education’. The witness confirmed the amounts transferred would usually amount to AUD$300.00-$400.00 ‘every month.’ The witness told the Tribunal that both she and her husband considered the applicant their son and that he would be of great assistance to them in their old age and in particular now that her husband is caring for her as a recipient of a ‘disability pension.’

31. With regard to this evidence and the explanations provided by all parties to the Tribunal, it seems in the Tribunal’s opinion, that the applicant was, has been and is a dependent of the review applicant as claimed. Indeed, the passage of moneys through various avenues to Vietnam for the ultimate benefit and needs of the applicant may have caused some questions to be raised – and motives questioned – but there is nothing in the evidence the Tribunal read and considered or heard at the hearing to suggest that the applicant was not wholly dependent on his father. He was so dependent since his youth until now. He has had his education made possible by his father’s regular contributions and he has no other means of support. Nevertheless, there is nothing from the evidence submitted to the Tribunal that the applicant was not considered other than a dependent child of the sponsor and that there was a real and bona fide relationship of parent and child between the two. The Tribunal cannot after considering all the evidence deliver a different opinion or come to a different conclusion with regards to the evidence as provided to the Tribunal and the explanations given. 

32. The Tribunal has found that the visa applicant meets the cumulative requirements of cl.101.211(1)(a), cl.101.211(1)(b) and cl.101.211(1)(c), and therefore he meets cl.101.211 in its entirety.

33. The Tribunal finds that the visa applicant does not continue to satisfy the requirements of cl.101.211 at the time of this decision only because he has turned 25 and therefore meets cl.101.221(2)(a)(ii).

34. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

35. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.211of Schedule 2 to the Regulations; and

    ·cl 101.221of Schedule 2 to the Regulations.

    Peter Vlahos
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first 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 needs 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.

    …