Tran (Migration)

[2018] AATA 1925

Tran (Migration) [2018] AATA 1925 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms My Tien Tran

VISA APPLICANT:  Ms Vien Duong Tran

CASE NUMBER:  1710532

DIBP REFERENCE(S):  2016/039633 OSF2016/039633

MEMBER:Susan Trotter

DATE:4 May 2018

PLACE OF DECISION:  Brisbane

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.101.211 of Schedule 2 to the Regulations;

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 04 May 2018 at 5:22pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – Dependent child – Mother /Daughter relationship – Review Applicant financially supported the visa applicant – Documentary evidence of numerous money transfers  – Visa applicant lived with father and independently in Vietnam – Over 18 at the time of application – Completed high school – Studying full time – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, rr 1.03, 1.05A Schedule 2 cls 101.211, 101.213, 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 Immigration and Border Protection (the Minister) on 5 April 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration and Border Protection (the Department) for the visa on 12 September 2016. 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 delegate refused to grant the visa on the basis that cl.101.211 and cl.101.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) were not met because the delegate was not satisfied that the visa applicant was at the time of the visa application, nor was at the time of the delegate’s decision, wholly/substantially dependent on the sponsor, the review applicant, for financial support to meet her basic needs of food, clothing and shelter or that her reliance on the review applicant was greater than her reliance on another person or source of support for her basic needs of food, clothing and shelter. In particular the delegate considered that the support from the review applicant, the visa applicant’s mother, was not greater than the support the visa applicant received from her father.

4. The review applicant lodged an application for review of the delegate’s decision with the Tribunal on 17 May 2017.

5. The review applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who spoke with the Tribunal by telephone from Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7. The Tribunal adjourned following the hearing to enable the review applicant to provide further material to the Tribunal, which was provided on 19 March 2018.

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

   ISSUES

9. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. The visa applicant was 18 years of age as at the date of the visa application.

   Dependent child criteria

10. Pursuant to cl.101.211(1)(a), at the time of the visa application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen:

11. ‘Dependent child’ is defined in r.1.03 of the Regulations as follows:

    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.

12. ‘Dependent’ is defined in r.1.05A of the Regulations as follow:

    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.

13. 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].

14. The relevant part of r.1.03 and r.1.05A are extracted in the attachment to these Reasons.

    Applicant under 25 or incapacitated for work

15. Pursuant to cl.101.211(1)(b), at the time of the visa application, the visa applicant must not have turned 25 at the time of the visa application. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.101.211(2).

    Child-parent relationship

16. Pursuant to cl.101.211(1)(c), at the time of the visa application, the visa applicant must be a child (other than adopted child) or specific kind of step-child 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.

    Additional criteria for applicants over 18

17. Pursuant to cl.101.213, there are additional requirements relating to relationships, work and study to be satisfied if, at the time of the visa application, the visa applicant had turned 18: cl.101.213. At the time of the visa application, the visa applicant:

    (a)  must not have been engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a);

    (b)  must not have been engaged in full-time work: cl.101.213(1)(b); and

    (c)  must have, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification unless they were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(1)(c) and (2).

18. 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).

19. The cl.101.213 requirements must also continue to be met at the time of decision: cl.101.221(2)(b).

20. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Was the visa applicant a dependent child of the review applicant at the time of the visa application?

    (b)  Was the visa applicant under 25 years of age at the time of the visa application or were they incapacitated for work due to the total or partial loss of bodily or mental functions?

    (c)  Was the visa applicant in the relevant child-parent relationship at the time of the visa application?

    (d)  Were the additional requirements relating to relationships, work and study for an applicant aged over 18 met at the time of the visa application?

    (e)  Do the requirements in cl.101.211 continue to be met at the time of decision? and

    (f)    Do the requirements in cl.101.212 continue to be met at the time of decision?

    CONSIDERATION

    Issue 1 - Was the visa applicant a dependent child of the review applicant at the time of the visa application?

21. The Department’s policy guidelines (PAM3) in relation to established dependency include as follows:

    33  Assessing regulation 1.05A(1)

    Regulation 1.05A(1) prescribes the dependency requirements for all cases except for protection, refugee and humanitarian stream visas.

    33.1  Only financial dependency is relevant

    For regulation 1.05A(1), to be considered dependent, a person must be:

    ·wholly or substantially reliant on another person for financial support to meet their basic needs for food, clothing and shelter; and the person’s reliance on the other person is greater than any reliance 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,

    ·wholly or substantially reliant on another person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions.

    This requirement applies irrespective of the age of the person or their personal circumstances and regardless of whether or not they have a disability. However, limitations such as to age or relationship to the family head may be specified elsewhere, such as in the definition of MoFU which may require a person to meet the definition to be dependent.

    This contrasts with the regulation 1.05A(2) definition of 'dependent', which is broader and provides that a person can meet the definition of dependent if they are wholly or substantially reliant on the family head for financial support (not limited to basic needs), or for ‘psychological’ and ‘physical’ support. (This wider definition applies only to protection and refugee/humanitarian stream visas.

    The advice that follows on assessing financial dependency is relevant only to non-refugee/humanitarian/protection visa applicants assessed under regulation 1.05A(1).

    36  Basic needs

    Only financial support for basic needs of food, clothing and shelter counts. In assessing dependency, if a person is earning an income or receiving a benefit, that income should be attributed to basic needs first.

    If that amount is sufficient to provide for most of the person's basic needs, the person cannot be considered to be wholly or substantially reliant on the other person for basic needs, even though there may be a claim that the family head is actually providing food, clothing and shelter and their own income is actually used for "extras".

    36.1  What are basic needs

    The term 'basic needs' refers to lower order needs that a person must sustain. These are prescribed at regulation 1.05A as food, clothing and shelter.

    The term does not encompass luxuries and discretionary consumption goods or higher order needs. This is implicit in the common understanding of the term but has also been recognised by the AAT.

    Under policy, student fees are not considered basic needs.

    43  Individual circumstances to be considered

    All assessments of regulation 1.05A(1)(a)(ii) must take into account the individual circumstances of the person.

    Financial support for basic needs can sometimes be difficult to measure if there is no actual exchange of money between the two parties. For example, if the claimed dependent is living in the same residence as the other person, officers need to consider how much money the other person is contributing to the claimed dependent's need for shelter (and possibly food), taking into account the how much it costs to rent or occupy similar accommodation. Such financial support would be relevant to the assessment of regulation 1.05A(1)(a)(i) and (ii).

22. The visa applicant was born in March 1998 and was over the age of 18 at the time of the visa application on 12 September 2016.

23. Clause 101.211 requires (with limited exception) that, at the time of application, the visa applicant be under 25 years and the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen who is the parent of the applicant.

24. As the visa applicant is over 18, the Tribunal has considered if she was ‘dependent’ (within the meaning of r.1.05A), that is ‘wholly or substantially’ reliant on the review applicant, for financial support to meet her basic needs for food, clothing and shelter for a substantial period immediately before the visa application and whether her reliance on the review applicant was greater than her reliance on any other person or source of support.

25. The Tribunal has carefully considered all of the evidence before it. Based on the evidence, the Tribunal finds that both the review applicant and the visa applicant‘s father provided financial support to the visa applicant from the time of their separation in 2000 up until when the visa applicant moved to Ho Chi Minh City in late 2016.

26. The Tribunal is mindful that the delegate was not satisfied that the support the visa applicant received from the review applicant was greater than that which the visa applicant received from her father given he provided her shelter and also, based upon the visa applicant’s statements to the Department, bought food and cooked her meals. The Tribunal tested these matters with the review applicant and the visa applicant at hearing including by putting information to the review applicant pursuant to section 359AA of the Act.

27. The visa applicant’s evidence included that prior to moving to Ho Chi Minh City at the end of 2016, she lived with her father and older brother in the family home in rural Vietnam. However, she said that her father spent most of his time with his other wife so she was virtually just living with her older brother. She said that her father spent approximately two days per week with her and her brother and would spend the rest of the time with his other wife. She told the Tribunal that her mother sent her money to pay for most of her food, her daily spending money, her clothes and also her school fees. She told the Tribunal that when she told the Department that her father bought food and cooked it, she had meant that her father used the money she gave him from her mother to sometimes buy food and cook meals. She stated that she used money sent to her from her mother to pay for her daily expenses, for her travel and for her other meal expenses. She said that breakfast was eaten at school and was paid for separately to school fees. Her father provided for her accommodation but her mother took care of everything else.

28. The review applicant’s evidence was that she came to Australia when the visa applicant was approximately 14 and since that time has continued to send her money approximately every month (either direct to her or to her, via the review applicant’s sister) by money transfer or has given money directly to her when she has visited her in Vietnam. She said that the visa applicant lived with her father but that he did not provide any other support to the visa applicant because he has another wife. She said that when the visa applicant’s father was home, she assumed he fed the visa applicant but he spent most of his time with his other wife and she, the review applicant, therefore sent money to the visa applicant to cover food.

29. There is documentary evidence of numerous money transfers from the review applicant to the visa applicant or to her sister (which money transfers the Tribunal accepts were for the visa applicant) throughout 2016. The Tribunal also accepts that the review applicant provided money direct to the applicant when she visited Vietnam (including in late 2014/early 2015 and in early 2016).

30. Having taken all matters into account, the Tribunal is satisfied that as at the date of the visa application, the visa applicant’s father provided financial support for the visa applicant’s shelter and some of her food costs and that the review was providing financial support for the visa applicant’s clothing and also for some of her food costs. The shelter being provided by the visa applicant’s father was continuing accommodation in the family home in a rural area of Vietnam. The Tribunal accepts that as at the time of the visa application, and in the years leading up until that time, the visa applicant attended school with the review applicant paying for the visa applicant’s clothing, school fees, transport costs, incidentals, food for breakfast and lunch at least six days per week (when she was at school) and sometimes for evening meals, and that the visa applicant’s father’s financial support was by way of shelter and some of her evening meals. The review applicant and visa applicant’s consistent evidence, which the Tribunal accepts, was that the visa applicant’s father has a new wife and spent most of his time with her away from the visa applicant’s family home.

31. The question of dependency turns only on the provision of financial support for the basic needs of food, clothing and shelter and therefore does not involve a consideration of other expenses such as school fees and incidentals.

32. It is not possible to ascertain with precision the exact financial cost borne by the review applicant as opposed to the exact financial cost borne by the visa applicant’s father as at the date of the visa application. Notably the most significant cost born by their father was the cost of shelter, which accommodation cost was likely quite modest given it was in the family home in a rural area of Vietnam in a home that was also maintained for the accommodation of the visa applicant’s brother and the father, when not staying with his new partner. What is clear is that it was the review applicant that the visa applicant could consistently rely upon to provide financial support for whatever she needed, including food and clothing, and other expenses. The Tribunal accepts that the visa applicant’s father supplied shelter and some food but having taken all matters into account is satisfied that the visa applicant was substantially reliant on the review applicant to meet her basic needs of food and clothing and that her reliance on the review applicant was greater than her reliance on her father for food, clothing and shelter and finds accordingly.

33. Therefore, the Tribunal finds that the visa applicant was the dependent child of the review applicant within the meaning of r.1.03 as at the date of the visa application.

34. As the Tribunal is satisfied that the visa applicant is a dependent child within the meaning of r.1.03, and that the review applicant is the holder of a permanent Australian visa, the Tribunal finds the requirements of cl.101.211(1)(a) are met.

    Issue 2 - Was the visa applicant under 25 years of age at the time of the visa application or were they incapacitated for work due to the total or partial loss of bodily or mental functions?

35. Based on the evidence before it, the Tribunal is satisfied and finds that the visa applicant satisfies the age requirements of cl.101.211(1)(b). as she had not turned 25 at the time of the visa applicant.

    Issue 3- Was the visa applicant in the relevant child-parent relationship at the time of the visa application?

1. Based on the evidence before it, the Tribunal is satisfied and finds that the visa applicant is the child of the review applicant, the holder of a permanent Australian visa, and therefore satisfies the requirements of cl.101.211(1)(c).

   Conclusion

2. As paragraphs (a) to (c) are met, cl.101.211 is satisfied at the time of the visa application.

   Issue 4 - If the visa applicant had turned 18 at the time of the visa application, were the additional requirements relating to relationships, work and study met at the time of the visa application?

   Relationship status

3. At the time of the visa application, a visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a).

4. There is no evidence before the Tribunal that the visa applicant is engaged to be married, or that she has ever had a spouse or de facto partner. Accordingly, the Tribunal finds that cl.101.213(1)(a) is met at the time of the visa application.

   Not engaged in full-time work

5. At the time of the visa application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b).

6. The Tribunal accepts the oral and written evidence before it that the visa applicant was still attending secondary school at the time of the visa application and had not at any time been engaged in full-time work.

7. Accordingly, the Tribunal finds that cl.101.213(1)(b) is met at the time of the visa application.

   Full-time study (or incapacitated for work)

8. At the time of the visa application, the visa applicant must have, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2).

9. The Tribunal is satisfied based on the evidence before it that as at the date of the visa application, the visa applicant was attending the equivalent of year 12 in the Australian school system in Vietnam.

10. Accordingly, the Tribunal finds that cl.101.213(1)(c) is met at the time of the visa application.

    Conclusion

11. As paragraphs (a) to (c) are met, cl.101.213 is satisfied at the time of the visa application.

    Issue 5 - Do the requirements in cl.101.211 continue to be met at the time of decision?

12. The evidence before the Tribunal is that at the date of decision, the visa applicant is entirely financially reliant upon the review applicant and that her father no longer provides any support at all. Based on the documentary and oral evidence before it, the Tribunal accepts that the visa applicant finished secondary school in October 2016 and moved to Ho Chi Minh City in January 2017, since which time the review applicant has paid all of her expenses, including the rent for her accommodation which she shares with a cousin, her food and clothing (and all additional costs such as Nail Academy fees and incidental expenses).

13. The Tribunal is therefore satisfied and finds that the visa applicant continues to be a dependent child of the review applicant within the meaning of r.1.03, that the review applicant continues to be the holder of a permanent Australian visa, the visa applicant has not turned 25 and continues to be the child of the review applicant, the holder of a permanent Australian visa, such that the requirements of cl.101.211 continue to be met at the date of decision. Clause 101.221(2)(a)(i) is therefore met.

    Issue 6 - Do the requirements in cl.101.212 continue to be met at the time of decision?

14. The Tribunal is also satisfied that the visa applicant, at the time of decision, continues to have not ever been engaged to be married, or had a spouse or de facto partner, and continues to have not been engaged in full-time work. Further, the Tribunal accepts that the visa applicant finished secondary school in October 2016, moved to Ho Chi Minh City in January 2017 and commenced studying in March 2017, initially studying an English course and from April 2017 to November 2017, studied a nail course at a Nail academy. The Tribunal accepts on the evidence that the visa applicant finished studying at the Nail Academy but did not pass the course and, as evidenced by documents before the Tribunal, has re-enrolled and commenced further studies at the Nail Academy in March 2018, following the New Year celebrations.

15. The Tribunal is therefore satisfied and finds that at all times the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a vocational qualification, except for a break of less than six months after finishing secondary school and the usual Christmas/New Year vacation break at the end of 2017/beginning of 2018.

16. The Tribunal is therefore satisfied and finds that the requirements of cl.101.213 continue to be met at the date of decision. Clause 101.221(2)(b) is therefore met.

    CONCLUSION

17. For the reasons given above the Tribunal finds that the visa applicant satisfies the time of application requirements of cl.101.211 and cl. 101.213 and the time of decision requirements of cl.101.221.

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

    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.101.211 of Schedule 2 to the Regulations;

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Susan Trotter
    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 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.

    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.

    …