Pham (Migration)

[2020] AATA 1935

Pham (Migration) [2020] AATA 1935 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi My Duyen Pham

CASE NUMBER:  1805200

HOME AFFAIRS REFERENCE(S):          CLF2015/7023, CLF2017/74708, CLF2017/74713

MEMBER:Helena Claringbold

DATE:8 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 08 April 2020 at 2:17pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of family unit – dependent child – wholly or substantially reliant on primary visa applicant for financial support to meet basic needs – employment history – credibility concerns – inconsistent evidence and unsubstantiated claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cl 836.311

CASES
Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 February 2015, Ms Thi Lan Nguyen, the primary visa applicant, applied for an Other Family (Residence) (Class BU) visa. The application was based on the primary visa applicant being the carer of Ms Thi Xuan Thu Pham, the sponsor.  On 30 May 2016, Ms Thi My Duyen Pham, the applicant, was added to the visa application on the basis of being a member of the family unit of the primary visa applicant and the additional fee was paid. Therefore, the date the applicant is taken to have lodged the application for the visa is 30 May 2016.

2. On 13 February 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant had been for a substantial period immediately before the time of application, wholly or substantially reliant on the primary visa applicant for financial support to meet her basic needs for food, clothing and shelter. Therefore, the applicant did not meet cl.836.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act).

3. On 27 February 2018, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

4. On 5 February 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether, at the time of application, the applicant is a member of the family unit of the primary visa applicant (her mother) and whether at that time, she is dependent on the primary visa applicant.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1992 in Kien Giang, Vietnam. Her parents and three siblings live in Australia. She has four siblings living in Vietnam. She first entered Australia in 2008 as the holder of a student visa. She has subsequently held various student visa subclasses.

9. At the time of application, the applicant must satisfy cl.836.311 of Schedule 2 to the Regulations, which determines that:

   The applicant is a member of the family unit of a person who:

   (a)      has applied for an Other Family (Residence) (Class BU) visa; and

   (b)      on the basis of the information provided in the application, appears to satisfy   the criteria in Subdivision 836.21 ;

   and the Minister has not decided to grant or refuse to grant the visa to that other person.

10. At the time of decision, the applicant must satisfy cl.836.321 of Schedule 2 to the Regulations, which determines that:

    The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria is the holder of a Subclass 836 visa.

11. ‘Member of the family unit is defined in r.1.12 of the Regulations:

    (1) For the definition of member of the family unit in subsection 5(1) of the Act,  and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)      a spouse or de facto partner of the family head; or

    (b)      a dependent child of the family head or of a spouse or de facto partner of the family   head; or

    (c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e)      a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)      does not have a spouse or de facto partner; and

    (ii)     is usually resident in the family head's household; and

    (iii)      is dependent on the family head.

12. ‘Dependent Child’ is defined in r.1.03 of the Regulations:

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

13. ‘Dependent’ is defined in r.1.05A of the Regulations

    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.

    CLAIMS AND FINDINGS

14. There is no information before the Tribunal that the applicant, who was born in 1992, is not the child of the primary visa applicant.

15. There is no evidence before the Tribunal that the applicant is incapacitated for work due to the total or partial loss of her bodily or mental function. Therefore, the visa applicant does not meet subparagraph (b)(ii) of the definition of dependent child in r.1.03(b)(ii).

    Is the applicant dependent?

16. 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)(i) 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 due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

17. Relevantly, 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].

18. On 30 May 2016, the visa application was lodged. At that time the applicant was 23 years old and as such had turned 18. Therefore, she needed to meet the definition of ‘member of the family unit’ and ‘dependent’ according to r.1.12 and r.1.05A.

19. The applicant is required to demonstrate that, for a substantial period, immediately before the time of application, she had been wholly or substantially reliant on the primary visa applicant for financial support to meet her basic needs for food, clothing and shelter. In addition, the applicant’s reliance on the primary visa applicant or her spouse for her financial support must be greater than her reliance on any other person or source for financial support to meet her basic needs for food, clothing and shelter.

20. As detailed in the delegate’s decision record, on 4 February 2015, when the primary visa applicant, lodged her application for the visa she completed a form 47OF.  She declared that the applicant was studying in Australia. In response to question 56 which asks for the declaration of: dependent children aged 18 years or over and other dependents, the primary visa applicant stated N/A.  The applicant was not declared as her dependent.

21. In a letter dated 23 May 2016, provided by the applicant to the Department, the primary visa applicant requested that, the applicant be added to the visa application. The primary visa applicant stated that the applicant is a full-time student and had been totally dependent on her for financial support.  The applicant’s migration agent in a letter dated 24 May 2016 stated that, the applicant had lived at the same address as her parents since they arrived in Australia in November 2014.

22. On 30 May 2016, the Department wrote to the primary visa applicant and advised that the applicant had been included in the visa application.  The Department provided a Tax Invoice-Receipt for the additional applicant charge + 18 dated 30 May 2016. Therefore, the date the applicant is taken to have lodged the application for the visa is 30 May 2016.

23. In her statement dated 23 September 2016, the primary visa applicant stated the following: that the applicant had been living with her other daughter, Ms Thi Xuan Thu Pham (Thu), who since 2008 provided her with free accommodation.  The applicant had been dependent on the primary visa applicant and her husband since her birth. The applicant has studied full-time in Australia since 2008, supported by the primary visa applicant and her husband. They spent all their savings and the AU$156,250 proceeds from the sale of land for the applicant’s tuition fees which cost about AU$14,000 per annum. They paid for tuition fees, for studying materials, clothing, food and travelling.

24. As part of the visa application, the applicant provided a form 47A dated 22 September 2016, signed by the primary visa applicant and the applicant. They declared the following: that the applicant finished Fairfield High School and completed her Higher School Certificate in November 2010. She completed a Certificate III in Children’s Service in November 2011 and a Diploma in Children’s Service in November 2013 both at TAFE. She began study at the University of Western Sydney (UWS) and that study was current at the time of completing the form. At question 24 which requires details of the dependant’s previous employment history:  is written ‘N/A’ and a line is drawn through this section of the form. On the form 80 signed by the applicant on 23 May 2016, at question 19 which requires details of all employment and unemployment the applicant stated that from 2008 to current she was a student and no information about employment is given.

25. In an undated statement the applicant provided the following information: she arrived in Australia in 2008 and has been living with her older sister, Thu.  She is not required to pay rent or for food eaten at home. She has been financially dependent on her parents to pay for her education including tuition fees, uniforms, books and stationary, transport costs and food. When family members travelled to Vietnam her parents gave them money to bring to Australia and they gave it to her sister. When she needed money her sister gave it to her.  She provided a graph dated 2008 to 2016 detailing her claims of the financial support provided by her parents of AU$178,820 to AU$192,820.  She stated that this included approximately AU$100 weekly for food and transport and an allowance in 2008/2009; approximately AU$150 weekly for food and transport and an allowance in 2010 and 2011 to 2015; approximately AU$200 weekly for food and transport, equipment and service fees and an allowance plus AU$500 to AU$1,000 to buy personal items and clothing and approximately AU$200 weekly for food and transport, equipment and service fees and $600 to buy personal items and clothing in 2016 for one semester.  On 23 September 2016, the applicant’s migration agent stated that the sale of the land was to pay for the applicant’s tuition. The applicant told the Tribunal that the amounts quoted for food as detailed above paid for her out of home food such as lunch or breakfast while attending studies, otherwise she ate at home.

26. There is no independent information from the applicant’s employers to substantiate her working hours or the length of time she worked for them, other than the statement from Ms Phan detailed below.  In a NSW Police Fact Sheet provided by the applicant to the Department she is recorded on 17 April 2016 as working in Nails Boulevard Salon, at Westfield Shopping Centre, Parramatta where she was involved in an incident and charged with an Affray T1. In her statutory declaration dated December 2016, she stated that she finished her tertiary course at the UWS in September 2016. While she waited for the Diploma of Business course to commence she worked as an apprentice at the nail salon. However, in a letter date 26 May 2016, provided by the applicant to the Department, Ms Phan, owner manager of Nails Boulevard, stated the following: she had known the applicant since August 2014 as she worked in her business as a nail technician on a casual basis. In her statement of October 2016, the applicant stated that throughout her studies in TAFE and UWS ‘I have had many jobs in many places from Early Learning Centres to Child Care centres’. The Tribunal discussed this inconsistent information about the applicant’s employment with the applicant.  She responded by stating that although she knew Ms Phan in August 2014, she didn’t begin working for her until December 2014. The inconsistent information the applicant has provided about her employment history raises questions about her credibility.

27. The applicant provided copies of her bank transaction list for account 0231 dated April 2017 to October 2017. This recorded an opening balance of AU$7,634.15 and a closing balance of AU$7,752.69. Multiple debit and credit transactions are recorded to and from another bank account 7359. The applicant told the Tribunal that she has two bank accounts. The account 0231 which was opened in 2008 is the account where she puts the money from her parents and her other bank account 7359 was opened in about 2010. The transaction list for bank account 0231 does not provide any insight into applicant’s dependency on her mother or her mother’s spouse.  

28. The applicant told the Tribunal the following: that since entering Australia in 2008 she has lived with her sister Thu. When her parents came to Australia in 2014, they also began living with Thu and they all continue to live with her.  In 2014 she began a Bachelor of Arts at the UWS which she completed in September 2016.  She began Diploma of Business at Kent Institute Australia (KIA) which she completed in June 2017.  In August 2017 she began an Information Technology course which she found difficult.  She transferred to study a Certificate IV in Marketing also at KIA which she completed in October 2018.  She continues to study Marketing and Communications at KIA and is due to complete the study next year. The primary visa applicant paid for new clothes for her at Christmas time and New Year and gives her extra money for clothing. 

29. The Tribunal put information to the applicant under s.359AA of the Act.  The applicant was told the relevance and consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant requested and was granted additional time to respond. The information is as follows:

    • Information on the Department’s file CLF2017/74708 is that on 20 July 2015, the primary visa applicant provided information to the Department where she stated that she and her husband lived with her daughter, Thu, who suffered several medical conditions. Her other daughter, Thi Bich Ngoc Pham (Ngoc) is a self-employed nail artist and covers all their household utility bills and food expenses.  Her other daughter, Thi Ngoc Anh Pham (Anh) also contributes her income to food expenses. When the primary visa applicant and her husband arrived in Australia they brought with them AU$5,000 which continues to be their savings.
    • The primary visa applicant told the Tribunal that from the time she arrived in Australia on 5 November 2014 until the day of the Tribunal hearing she paid for everything including AU$200 fortnightly in rent to Thu and all of the food in the household. In 2015, she paid for all of the food in the household from her own money.  She pays these expenses by cash which family members bring into Australia from Vietnam. This information was put to the applicant as it is inconsistent with the information the primary visa applicant provided to the Department on 20 July 2015 and with the applicant’s information as follows: her parents pay some of the mortgage for Thu’s house and she didn’t know if they paid any rent. Thu pays for the house, her parents pay for food and the bills and gives Thu maybe AU$100.

30. In a post hearing submission the applicant stated the following: the primary visa applicant arrived in Australia on 5 November 2014 and has lived with the applicant since that time. Because she was a new arrival her two sisters helped her settle and adapt.  However after a period of several months, the primary visa applicant supported herself and the applicant from her own income.  Her elder sister Ngoc lives far away from them and has to support herself. Her other sister Anh is married with two young children. Her mother understood that she was allowed to bring a certain amount of cash to Australia. A year prior to the primary visa applicant and her spouse entering Australia they sold land for VND2.5 billion the equivalent of AU$156,250.  Her sisters could only help the primary visa applicant and her spouse for a short time and the responsibility of financially supporting the applicant has always been with the primary visa applicant and her spouse. The primary visa applicant paid Thu AU$200 weekly for accommodation and her sister used this money to pay the mortgage and this is an informal agreement between mother and daughter.

31. In a post hearing submission the applicant’s migration agent stated the following: the applicant’s father sold his land in November 2013 with part of the proceeds from the sale going to support the applicant’s study in Australia. Under policy a substantial period is taken to be 12 months. Therefore, the issues are whether during the period of 12 months either before her application on 30 May 2016 the applicant was dependent on the primary visa applicant or her spouse for financial support, or before the primary visa application on 4 February 2015 the applicant was dependent on the primary visa applicant or her spouse and whether the applicant’s reliance on the primary visa applicant or her spouse is greater than her reliance on any of her sisters for financial support to meet her basic needs.  As detailed above the date the applicant is taken to have lodged the application for the visa on 30 May 2016.

1. The migration agent continued and stated the following: when the primary visa applicant arrived in Australia on 5 November 2014 her daughters helped her adapt to Australia for several months. From around 2015, the primary visa applicant and her spouse had to support themselves and the applicant. Anh had to financially support her own family.  Therefore it is certain that from May 2015 to May 2016 the applicant was dependent on the primary visa applicant and her reliance on the primary visa applicant and her spouse was greater than her reliance on her sisters. The primary visa applicant and her spouse had the capacity to financially support the applicant and it was their responsibility for the applicant’s education and well-being is greater than the responsibility of any other members of the family. He provided a copy of a document he translated: ‘Letter of application for confirmation of sale of land’. This stated that on 19 November 2013, the applicant’s father sold land to another person for VND2.5 billion.

2. The Tribunal is not satisfied that the primary visa applicant is credible. She provided inconsistent evidence about who paid for the food in the household in 2015. On one hand, she claimed her daughters paid for all the utility bills and food expenses.  On the other hand, her evidence to the Tribunal is that she paid for everything in 2014 and 2015 and since then the proceeds from the sale of the land went to pay for the applicant’s educational fees.

3. The Tribunal put information to the applicant under s.359AA of the Act.  The applicant was told the relevance and consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant requested and was granted additional time to respond. The information is as follows:

   ·The primary visa applicant told the Tribunal that from 2008 to 2014 she sent money to Australia via family members to pay for the applicant’s study.  The recipient of the money was an aunt of her husband’s youngest sibling (the aunt).  The aunt would then pay the expenses for the applicant’s study.  The aunt had receipts for these expenses but she didn’t know if they had been kept, because the receipts were to enable the aunt and Ms Nguyen to reconcile expenses which were calculated between the aunt and the primary visa applicant.  The applicant didn’t pay for rent or food as the primary visa applicant paid for these expenses.  She then said that prior to Thu falling ill in March 2011, she worked out a formula to calculate the food and accommodation expenses for the applicant. When Thu fell ill, the aunt paid for the applicant's food and accommodation expenses.  She was unable to say how the aunt paid Thu or what the costs for the applicant’s food and accommodation were. This information was put to the applicant as it is inconsistent with the information the applicant provided that from 2008 to 2014 family members brought money from Vietnam and gave it to Thu for the applicant’s food, clothing and shelter.

   ·The primary visa applicant told the Tribunal that she didn’t know where the applicant worked or how much money she earned but thought that she earned more than AU$100. This information was put to the applicant as it is inconsistent with the information the applicant provided that she was employed from December 2014 to April 2015, at Nail Boulevard in Parramatta.  She worked two days a week for eight hours each day earning AU$20 per hour. From August 2015 to March 2016, she was employed at a childcare centre in Canley Vale.  On average she worked two to three days a week for four to five hours each day earning AU$22 per hour. From April 2016 to May 2016 she worked at Nail Boulevard in Parramatta for a total of four days and was paid AU$20 an hour. The applicant did not respond to this information.

   ·The primary visa applicant told the Tribunal that in 2014, 2015 and 2016 she gave the applicant AU$10,000 which she deposited into the bank. This information was put to the applicant as it is inconsistent with the information the applicant provided that the primary visa applicant gave her AU$5,000 or AU$7,000 or AU$1,000 or AU$2,000.

4. In a post hearing submission the applicant stated the following: the primary visa applicant trusted the aunt and left it to the aunt to decide how much to pay and the aunt paid the applicant’s sister according to her sister’s calculations.  With regard to the money the primary visa applicant gave the applicant, this depended on her needs and she sometimes deposited less money (in the bank) than her mother gave her. She has been dependent on the primary visa applicant and her spouse since birth.

5. The Tribunal considered the information given by the primary visa applicant and the applicant. Their evidence is inconsistent and vague and their claims are unsubstantiated by any independent evidence.  Neither the primary visa applicant nor the applicant could provide any information about the financial support needed to meet the applicant’s needs and the claims as detailed in the graph provided by the applicant are unsubstantiated.On one hand, the applicant gave evidence that the family members who visited Vietnam brought money from the primary visa applicant and her spouse into Australia and gave it to Thu and this money financially supported the applicant’s basic needs of food and shelter. On the other hand, the primary visa applicant gave evidence that the financial support to meet the applicant’s basic needs was given to the aunt. There does not appear to be any understanding about what the actual cost of the financial support to meet the applicant’s basic needs for food and shelter costs were. There is no independent evidence to substantiate money being provided to the aunt or Thu, such as third party statements from the people who it is claimed brought this money into Australia.  While the primary visa applicant stated that she reconciled the expenses for the applicant with the aunt, she appeared to have no knowledge of what the expenses were or the cost for financial support for the applicant to meet her basic needs.

   Other considerations

6. The applicant’s migration agent stated the following: his observation of the Vietnamese community is that when they return from Vietnam they bring home money and this is how the costs for food, shelter and clothing was paid for the applicant.  The applicant has been supported financially by her parents for her basic needs of food, shelter and clothing as they have parental responsibility for the applicant.  While this may be the migration agent’s observation, the primary visa applicant and the applicant provided inconsistent evidence about their circumstances and about the applicant’s dependency on the primary visa applicant or her spouse. 

7. This decision record is a synopsis of the evidence before the Tribunal.  The Tribunal has considered the evidence individually and as a whole. The applicant and the primary visa applicant provided inconsistent information about the applicant’s dependency on the primary visa applicant and her spouse. The Tribunal does not accept the primary visa applicant and the applicant’s claims about the applicant’s dependency on the primary visa applicant or her spouse. 

8. As detailed in the delegate’s decision record, when the primary visa applicant lodged her application for a carer visa in February 2015 she didn’t disclose the applicant as her dependent.  In July 2015, the primary visa applicant provided evidence that Ngoc paid all the household bills and food expenses and Anh also contributed to food expenses.  However, at the Tribunal hearing she gave evidence that in 2015, she paid for the all of the household food from her own money.  In 2016, the applicant claimed that she lived with Thu and was not required to pay for food eaten at home or shelter.  At the Tribunal hearing, she claimed that her accommodation and food were provided by Thu but paid for by her parents. The graph dated 2008 to 2016 detailing her claims of financial support provided by her parents is unsubstantiated. Neither the primary visa applicant nor the applicant could give any information about the financial support needed to meet the applicant’s basic needs for food, shelter and clothing. The claim that the primary visa applicant buys the applicant’s clothing at Christmas or New Year and gives her money for clothing is unsubstantiated by any independent evidence.

9. Other information given by the applicant to the Department about her employment is inconsistent.  On 23 May 2016, on the form 80 signed by the applicant, she didn’t declare any information about her employment. On 22 September 2016, on the form 47A, signed by the primary visa applicant and the applicant, ‘N/A’ is written against the question regarding her employment. The applicant, in her statement of October 2016, claimed to have worked throughout her studies in many jobs from Early Learning Centres to Child Care Centres.  However, at the Tribunal hearing she claimed that, she had worked at a nail salon and a child care centre.  There is no evidence from the applicant’s employers, other than Ms Phan, to substantiate the applicant’s claims about her employment or the hours she worked or salary she earned. The Tribunal is not satisfied that the applicant is credible.

10. The evidence provided about the claimed support by the primary visa applicant for the applicant’s basic needs of food, shelter and clothing is vague and unsubstantiated by any independent evidence such as statements from people who it is claimed brought money into Australia or bank statements showing a trail of identifiable deposits and or credits or receipts that the primary visa applicant claimed the aunt had as a result of payments she made for the applicant

11. While the Tribunal may accept that the applicant has lived with Thu since 2008 and then in November 2014 the primary visa applicant and her spouse also began living with them, the Tribunal is not satisfied that for a substantial period immediately before the time of application, the applicant was ‘wholly or substantially’ reliant on the primary visa applicant or her spouse for financial support to meet her basic needs for food, accommodation and clothing. The Tribunal is not satisfied that the applicant’s reliance on the primary visa applicant or her spouse is greater than her reliance on any other person or source of financial support to meet those basic needs.

12. As a result of the evidence detailed above, the Tribunal is not satisfied that, for a substantial period immediately before the time of application the applicant was a member of the family unit of the primary visa applicant. Therefore, the applicant does not satisfy cl.836.311 of Schedule 2 to the Regulations.

13. There is no evidence that the secondary visa applicant meets any of the alternative criteria for the grant of the visa.

14. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the applicant meets the criteria for the grant of the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Helena Claringbold
    Member