Tieu (Migration)

[2020] AATA 4732

Tieu (Migration) [2020] AATA 4732 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Men Tieu

VISA APPLICANT:  Mr Le Vu Tran

CASE NUMBER:  1809311

DIBP REFERENCE(S):  OSF2015/070646 OSF2018/031893

MEMBER:Steven Griffiths

DATE:2 September 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations

Statement made on 02 September 2020 at 4:00pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of family unit – dependent child – biological child of the primary visa applicant – turned 18 years of age – wholly or substantially reliant – full-time student – unpaid internship – financial reliance – regular bank transfers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 309.311, 309.321

CASES
Al Naqi v MIAC [2007] FMCA 874

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 16 March 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr. Le Vu Tran, applied for the visa on 11 September 2015 on the basis of his relationship with the primary applicant, and his sponsor, the review applicant, Mr. men Tieu. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 because the delegate was not satisfied the visa applicant was the dependent child of the primary visa applicant, and therefore not a member of the family unit of the primary visa applicant at the time of application or at the time of decision.

4. The applicants registered migration is Mr. Zachary Bright of the Law Firm of Nicholas Koenig & Adrian Simons.  

5. The review applicant appeared before the Tribunal on 2 September 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, the primary applicant, Ms. Thanh Hong Nguyen, and Ms. Thanh Nhanh Nguyen, the aunt of the applicant. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  

6. The registered migration agent took part in the hearing.

7. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. 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 Microsoft Teams Video. No concerns were raised by the parties on holding a Microsoft Teams Video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant meets the secondary criteria in cl.309.311 and cl.309.321 and if the visa applicant is the dependent child of the primary visa applicant, who is married to the sponsor.

10. The Tribunal has considered the visa application forms, and the visa applicant is listed as a secondary applicant in the form and made a combined application with the primary visa applicant.

11. Based on the visa grant notice, the primary visa applicant has been assessed as satisfying the criteria in subdivision 309.21. The Tribunal accepts the primary visa applicant was granted a permanent visa, on the basis she met the requirements of the temporary visa subclass 309, prior to meeting the requirements of the permanent visa subclass 100.

12. Based on the visa grants dated 16 March 2018, the Tribunal accepts that the primary visa applicant was granted a subclass 309 visa. Based on the grant of the 309 visa to the primary visa applicant, I am satisfied that she is a person who satisfies the primary criteria in Subdivision 309.21.

13. Based on the details provided as part of the visa application, the Tribunal accepts that the visa applicant is the biological child of the primary visa applicant, his mother.

14. The Tribunal accepts the documented evidence of the visa applicant being the stepson of the sponsor.  

15. The requirements of cl.309.311 are that the visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

16. The visa application, lodged 11 September 2015, identifies the applicants date of birth as 10 October 1990. The Tribunal accepts the identification details provided for the applicant as part of the visa application and subsequently submitted details, and accepts the applicant was aged 24 years and 11 months at the time of application.

17. The Tribunal accepts the documented and oral evidence of the parties and determines, the visa applicant was not engaged to be married, or had a partner or spouse at the time of application. The Tribunal accepts the visa applicant had turned 18 years at the time of application, and he is the biological child of the primary visa applicant and does not meet the requirements of “dependent child”.

18. The Tribunal notes the issues raised in the Refusal Decision Record in determining the applicant to not be a dependent child of the primary visa applicant within the meaning of r.1.03 at the time of application and decision.

19. The Tribunal notes the issues raised in the Refusal Decision Record in considering the visa applicant to be a dependent as defined in r.1.05A and if the applicant is wholly or substantially reliant on the primary applicant for financial support to meet the basic needs for food, clothing and shelter.    

20. The Tribunal accepts the documented and oral evidence of the parties of the primary applicant and sponsor meeting in February 2009, committed to a shared life together December 2010 and marrying on 21 June 2011.

21. The Tribunal accepts the documented evidence of the primary applicant being in Australia to support her youngest child while he was studying in Australia, and then with the relationship with the sponsor eventually remaining longer that her visa provided, leaving Australia in 2015, lodging the offshore Partner Visa and returning to Australia in March 2018 to be reunited with the sponsor. 

22. The Tribunal accepts the documented and oral evidence of the sponsor being part of the family unit of the primary applicant and visa applicant for 10 years.

23. The Tribunal accepts the documented and oral evidence of the parties of the bank account operated by the visa applicant in Australia, with the credit entries demonstrating the regular transfers to the account by the review applicant, the mother of the visa applicant, from accounts in to which she and sponsor deposit their earning from the combined efforts of a small farm in the Northern Territory of Australia and pension benefits received by the sponsor.

24. The Tribunal accepts the oral evidence of the parties of the breakdown of expenses of the visa applicant for accommodation, food, transport, clothing and education costs.

25. The Tribunal accepts the documented and oral evidence of the parties that applicant has  lived since arriving in Australia in April 2015, as a student, in a home in Victoria owned by his aunt, a sister of the primary applicant, and in addition to paying rent, also contributes to the utility costs of the household.

26. The Tribunal accepts the documented and oral evidence of the parties that the primary applicant lived in the Northern Territory from her entry to Australia in March 2018 until February 2020 when she travelled to Victoria to spend time with her son and sister, and as a result of the Northern Territory closing its border due to COVID-19, she has not been able to return, has continued to live with her son and has worked part of the time as a nail technician and used part of the income to support the visa applicants costs.

27. The Tribunal accepts the documented and oral evidence of the parties that the sponsor has continued operating, without the support of the primary applicant since she left in February 2020, his farm and has used part of the income to support the visa applicants costs.

28. The Tribunal accepts the oral evidence of the parties that they determined the role of the visa applicant is to complete his studies, then commence working and to use these resources to support his mother and step-father, who at 72 years of age stated several times that he was at the end of his working life and could not continue much longer. 

29. The Tribunal accepts the oral evidence of the parties that primary applicant and sponsor provided the funds to the applicant for him to purchase a car.

30. The Tribunal accepts the oral evidence of the parties that the younger sibling of the visa applicant, who had also been a student in Australia, completed his studies and returned to Vietnam in 2017 and is working for a firm that advises international students and that it has not been necessary for any financial support to be provided to him.

31. The Tribunal accepts the oral evidence of the parties that the visa applicant has not worked in any paid roles in time living in Australia from April 2015 and has at all times been dependent on the financial support of his step-father and mother, who have provided the funds necessary to support his accommodation, clothing, food, social activities and education expenses.  

32. The Tribunal accepts the documented and oral evidence of the parties that the visa applicant has not, and does not, have a partner.

33. The requirements of cl.309.321 are that the visa 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 309 (Partner Provisional) visa.

34. At the time of this decision, the visa applicant has turned 18 years of age, being aged 29, with the Tribunal accepting the documented and oral evidence of the visa applicant that he will be completing his studies in 2022.  

35. The Tribunal has considered the issues raised by the Delegate in the Refusal Decision Record on the time between 2012 and 2014, in Vietnam, of the visa applicant and the Ve Sinh Australia Company and accepts the documented and oral evidence of the parties that the visa applicant was a unpaid intern spending 1 day per week for the period under the director of the accountant of the firm as this was his study area at the time.

36. The Tribunal accepts the documented and oral evidence of the parties on the issues noted by the Delegate in the Refusal Decision and determines the positions put by the applicant and other parties to refute the position of the Delegate, and concerns raised, are accepted by the Tribunal and the issues raised by the Delegate in the Refusal Decision are not part of the decision to be made by the Tribunal.

37. In assessing whether the visa applicant is financially dependent upon the primary visa applicant, I have applied the broad practical principals espoused in the case of Al Naqi v MIAC [2007] FMCA 874, and considered the financial support provided by the sponsor and primary visa applicant, is evidence of the visa applicant’s financial reliance upon the sponsor and primary visa applicant.

38. The Tribunal has considered the evidence submitted and determines that at the time of this decision, and for the period before and after the visa application, that the visa applicant is and has been, wholly or substantially reliant on the sponsor and primary visa application for financial support to meet his basic needs of food, clothing and shelter.

39. The Tribunal determines the visa applicant to be dependent on his parents within the meaning of r.1.05A and meets the criteria for being a member of the family unit of the primary visa applicant.

40. The Tribunal determines the visa applicant continues to be a member of the family unit of a person who is now the holder of a Subclass 309 visa and accepts the visa applicant meets the requirements of cl.309.321(a). Therefore, the visa applicant meets the requirements of cl.309.321.

41. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

42. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations

    Steven Griffiths
    Member