Tran (Migration) - [2024] AATA 1677

Tran (Migration) [2024] AATA 1677 (3 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Thai Hoa Tran
VISA APPLICANT:  Miss Gia Han Ly
REPRESENTATIVE:  Ms Karen Louis (MARN: 0003543)
CASE NUMBER:  2018330
DIBP REFERENCE(S):  BCC2018/5788174
MEMBER:Peter Emmerton
DATE:3 June 2024
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 03 June 2024 at 10:43am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary applicant – member of the family unit – dependency – financial reliance – ‘wholly or substantially reliant’ – level of reliance – substantial period – financial support provided by a couple – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cls 309.311, 309.321
CASES
Al Naqi v MIAC [2007] FMCA 874
Fusi v MIAC [2012] FMCA 1037
Huynh v MIMIA (2006) 152 FCR 576
MIMIA v Pires (1998) FCR 214
Phin v MIAC [2013] FMCA 60
Xie v MIMA (2000) FCA 230
Zeng v MIMIA [2005] FMCA 546
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 22 December 2018 on the basis of her relationship with her sponsor, the review applicant. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.311 nor 309.321 because not satisfied that the applicant is a dependent child of the primary applicant.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary visa applicant claiming to be a member of the family unit of the primary applicant, satisfies the secondary criteria under cl.309.311 and cl.309.321 of the Act for the grant of the visa.
In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal in the form of written submissions and supporting evidence provided to the Tribunal and previously to the Department.
The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate.
The Tribunal has read and carefully considered the following additional evidence provided to it prior to this decision.
·Statutory Declaration from Mr Thai Hoa Tran, (review applicant) dated 30 May 2024
- Statement (translated) of LY Gia Han, 28 May 2024
- Money transfers approximately AUD $37,000 between 2021 and 2024
- Vietnam family documents including partial translations of
- Room Rental Contract- Socialist Republic of Vietnam, 31 August 2023 – Ms Vo Thi Huyen Trang
- University Acceptance document with handwritten English explanation
- Letter of Invitation – Van Lang University, undated
- Van Lan University IT Services Account Information
- Photos and documents in Vietnamese
- Representatives’ submission dated 30 May 2024
- Photos including gifts for participation in basketball
Are the secondary criteria requirements for the secondary applicant met?
Member of the family unit and consideration of ‘relative’
This criterion requires that secondary applicants are members of the primary applicant’s family unit. The term ‘member of the family unit’ is defined in Regulation 1.12 of the Migration Regulations. The primary applicant submits at the time of visa application the above visa applicant, her child, as her dependent relatives (Reg 1.12(1)(b) and Reg 1.12(1)(e)) named as the secondary applicant whom she claims she has been supporting financially (through her husband in Australia, the sponsor and review applicant), and more recently by herself in conjunction with the review applicant. Regulation 1.12 provides for the definition of member of the family unit in subsection 5(1) of the Act that, subject to sub-regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:
(a)       a or of the family head; or
(b)       a dependent child of the family head or of a or of the family head; or
(c)       a dependent child of a dependent child of the family head or of a or of the family head; or
[(d) omitted by SR 2004, 390 with effect from 02/04/2005 - note]
(e) a relative of the family head or of a or 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 on the family head.
The submission is that the secondary applicant is the biological child of the primary applicant and stepdaughter of the review applicant and that falls within the definition of ‘member of the family unit’ after consideration of the definition of ‘relative’ provided in Reg.1.12(1)(e).
The Tribunal has considered the definition of ‘relative’ provided in division 1.2 of the Regulations which reads as follows:
Relative
in relation to a person, means:
(a)in the case of an applicant for a subclass 200 (Refugee) visa or a protection (Class XA) visa:
(i)     a close relative; or
(ii)a grandparent, grandchild, aunt, uncle, niece or nephew, for a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or
(iii)   a first or second cousin; or
(b)       in any other case:
(i)     a close relative; or
(ii)a grandparent, grandchild, aunt, uncle, niece or nephew, for a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
‘Close relative’ is further defined in division 1.2 of the Migration Regulations as follows:
Close Relative
in relation to a person, means:
(a)the spouse or defacto partner of the person; or
(b)a child, parent, brother or sister of the person; or
(c)a step-child, a step-brother or step-sister of the person.
This matter of the review applicant’s wife being the biological parent of the visa applicant is not in dispute and was accepted as fact by the delegate and the Tribunal. This was supported by reference to the applicant’s Birth Certificate. It is also noted that at the time of application the appropriate permissions were provided in respect to Ms Ly leaving Vietnam by both her grandmother and biological father who is now divorced from her biological mother.
It is additionally noted the primary applicant (Ms Ly’s biological mother), was granted a UF 309 visa on the basis of her being in a spousal relationship with the sponsor Mr Thai Hoa Tran. The visa was issued on 25 November 2020, and she arrived in Australia on 21 June 2021. The primary applicant has since travelled back to Vietnam for 1 month in early 2023 to visit her daughter and family.
It is further noted that the delegate accepted the applicant is unmarried, is not in a de facto relationship or engaged nor have they been. The Tribunal concurs based upon the evidence available. This is further corroborated by a Certificate of Marital Status issued on 6 March 2020 by the People’s Committee of Vinh Bao Ward, Rach Gia City, Kien Giang Province, stating the applicant is unmarried.
Dependency
The primary applicant and sponsor submit that the secondary applicant in this application is reliant upon them for financial support and subsistence above all others. No evidence was obtained by the Tribunal nor supplied by the delegate to substantiate income being generated through employment undertaken by the secondary applicant. In this case the applicant’s parents are residing in Australia and send money on a regular basis.
The submission is that the primary applicant and the review applicant are primarily responsible for the care and support of (relevantly) the secondary applicants, for food, clothing and shelter and medical treatment; and that this support is greater than the support from any other person or source. It is noted by the Tribunal that the Ms Ly had official documentation show her residence with her biological father who she did not live with and also at other times with her grandmother in a house domiciling multiple individuals. This is not unusual in Vietnamese culture. Extended family residences are frequently the norm.
The Tribunal is aware that official documentation may not always coincide with residency claims because the bureaucracy is frequently not provided with updated living arrangements. Although officially not acceptable it is common practice. The Tribunal accepts this is the case here and it also accepts that for security or convenience, current addresses are not always divulged for collection of remittances. This was further explained and accepted as accurate as described in the Statutory Declaration dated 30 May 2024 submitted by the review applicant. A cogent explanation was provided as to why the applicant’s address had not been changed from her biological father’s address after she departed that address at the age of 5. There is no evidence to suggest the supposition that she may have resided there beyond that point in time.
There has been a significant change to the definition of ‘dependent’ in the Migration Regulations 1994 (the Regulations) since 1 November 1999. What constitutes the relevant period of dependency can differ depending on the context of the visa subclass in which the requirement arises. There has been little case law to provide guidance on the correct legal approach to the defined term ‘dependent’.
The following definition of dependent is applicable to visa applications made on or after 1 November 1999.[1] Regulation 1.03 of the Regulations states that ‘dependent’ has the meaning given by r.1.05A. Regulation 1.05A states:
[1] The definition in r.1.05A was inserted by r.5(1) of Migration Amendment Regulations 1999 (No.13), (SR1999 No.259).
1.05A   (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)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.
(2)a person (the first person) is dependent on another person for the purposes of an application for:
(d)     a Protection (Class XA) visa; or
  (e)     a Refugee and Humanitarian (Migrant) (Class BA) visa; or
  (ea)   a Refugee and Humanitarian (Class XB) visa; or
(i)     a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
The concept of dependency in r.1.05A is limited to financial dependency, except in relation to certain specified protection and humanitarian visa classes for which it is open to consider whether the person is reliant on another for psychological or physical support. This does not apply here.
Wholly or Substantially Reliant
The definition of dependent requires that the person has 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 requires the Tribunal to ask whether the applicant was predominantly or ‘primarily, essentially or in the main’ dependent on the other person.[2] In Fusi v MIAC[3], the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case, some infrequent funds from other family members and shelter, when assessing whether she was ‘wholly or substantially reliant’.[4] Although the Court’s consideration relates to the definition of ‘dependent’ as it stood prior to November 1999, the reasoning would appear to be equally applicable to the current definition in so far as it considers the terms ‘wholly or substantially reliant’.
[2] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. Federal Magistrate Cameron followed the reasoning of Branson and Hely JJ in the Full Federal Court decision MIMA v Graovac [1999] FCA 1690 (Einfeld, Branson and Hely JJ, 16 December 1999) at [10]-[13] where Branson and Hely JJ considered the meaning of “substantially dependent” in the pre 1 November 1999 definition of ‘dependent’ in r.1.03. No significance was identified in Huang in the change from “substantially dependent” to “substantially reliant”.
[3] [2012] FMCA 1037 (Nicholls FM, 15 November 2012).
[4] Fusi v MIAC [2012] FMCA 1037, (Nicholls FM, 15 November 2012) at [60].
Importantly, in Huynh v MIMIA[5] , the Full Federal Court found that the proper construction of ‘dependent’ under the current definition in 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.[6] Significantly, this constituted a departure from the position adopted in MIMIA v Pires[7] and Xie v MIMA[8] which determined that the pre-1 November 1999 definition of ‘dependent’ did contemplate a degree of necessity. In obiter comments, a majority of the Court in Huynh stated that, while it was not necessary to consider whether these cases were wrongly decided, the decisions in Pires and Xie should no longer be followed.[9]
[5] (2006) 152 FCR 576. Much of the analysis of the relevant provision pertains to the construction of r.1.05A(1) however, the Court’s reasoning appears to extend to r.1.05A in its entirety, at [35], [36] and [39].
[6] Huynh v MIMIA (2006) 152 FCR 576 (Lander, Rares and Besanko JJ, 31 July 2006) considered the construction of ‘dependent’ in the context of ‘dependent child’, however, the conclusion as to the proper construction of ‘dependent’ in regulation 1.05A is applicable in all cases where reference is made to the term ‘dependent’, for example, relative in the r.1.12(1)(e) ‘member of a family unit’ definition and the definition of ‘aged dependent relative’ in r.1.03. Refer also Thompson v MIAC (2010) 114 ALD 86.
[7] (1998) FCR 214 (Mansfield J, 1 December 1998) at [221].
[8] (2000) FCA 230 (Weinberg J, 9 March 2000).
[9] Huynh v MIMIA (2006) 152 FCR 576, (Lander, Rares and Besanko JJ, 31 July 2006) at [41].
In Zeng v MIMIA,[10] a decision involving an Aged Dependent Relative visa, Riethmuller FM concluded that a proper determination of the question of ‘substantial dependence’ will require considerations of at least the following factors:
·the nature of the person’s needs (within the meaning of the regulations);
·the extent to which those needs are being met by the person from their own resources;
·the extent to which the needs are being met by the nominator; and
·whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.[11]
[10] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).
[11] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [11].
In many cases this will require consideration of the circumstances in different periods of time leading up to the date of the application and the nature of future support having regard to the relationship.[12] The Tribunal has exercised care in considering the last of these factors as Zeng was decided before the Full Court’s decision in Huynh. While the existence of an obligation on the nominator may point to reliance in fact by the applicant, the Tribunal does not require such obligation before it can find a person is dependent upon a nominator.
[12] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [12].
Level of reliance
The expression ‘substantially reliant’, and r.1.05A(1)(a)(ii) require consideration of the level of reliance a person has on another person in comparison with his or her reliance on other persons or sources of support. As indicated above, courts have held that the term ‘substantially’ should be read as meaning ‘predominantly’ or ‘primarily, essentially or in the main’.[13] Sub-subparagraph 1.05A(1)(a)(ii) requires that the first person’s reliance on the other person be greater than any reliance on any other person or source of support.
[13] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. See also Fusi v MIAC [2012] FMCA 1037 ( Nicholls FM, 15 November 2012).
It appears there has been no judicial consideration of whether the notion of predominance in these two contexts applies to: (i) the total amount of financial support for the basic needs; or (ii) predominance in relation to the basic needs such that reliance on a person for two out of three of the basic needs will be sufficient; or (iii) whether it relates to a combination of financial support in respect of each of the basic needs of food, shelter and clothing individually.
The first approach places emphasis on the words ‘…for financial support to meet the first person’s basic needs’ which are then further defined as including the three items that follow. The second approach comes from placing emphasis on the fact that the support must be for the basic needs (but which does not give real consideration to the fact that those needs are specified in a cumulative manner by the use of the word ‘and’). The third approach comes from placing emphasis on the fact that the basic needs for which financial support must be provided are described as ‘food, shelter and clothing’ which suggests a cumulative requirement of all three needs. One example of circumstances where these different interpretations may have differing results is where two of the three basic needs of the visa applicant are met by financial support from person B and the cost of the third and most expensive basic need is met by person C who is providing a greater amount of money than person B and the visa applicant is claiming to be dependent upon person B.
The third approach, which requires that financial support be provided in relation to all three basic needs and, overall, the person can be described as the predominant source of support, even if only providing a small amount in relation to one of the basic needs, appears to be the approach that best reflects all parts of the regulation. In the Tribunal’s view, to require the person to be predominantly reliant upon another person in respect of each of the three basic needs would appear to place the bar too high and is not necessary to give effect to all parts of the definition. However, on current authority that the Tribunal is aware of a variety of approaches appear open.
Substantial Period

The applicants submit that financial support has been provided both prior to and since shortly after the arrival of the applicant’s mother to Australia. Money transfer receipts were tendered to the Tribunal and the delegate. For the period between January 2019 and July 2020 a total of approximately AUD$ 3,000. It is noted by the delegate and the Tribunal that AUD$850 was stated to be for the purchase of a motorbike for the applicant. In addition, money transfer receipts for approximately AUD $37,000, from the primary applicant and the sponsor to the secondary applicant, between 2021 and 2024 have been provided to the Tribunal and accepted as genuine.
The Tribunal notes the following taken from the delegate’s decision. It has reviewed these documents/photographs and considers them to be both genuine and relevant and notes the currency amounts and their relevant dates coincide with the receipt evidence provided.
·‘Letter from the applicant dated 6 March 2020 asking for confirmation that she moved out to live since 1 October 2019 to train herself to be independent and each of her parents provided her with 2 million VND every month. The applicant further stated that at the time of writing this letter, she is still in high school at grade 12. This letter was signed by the applicant and the landlord/house owner.
·Certificates of merit dated 25 May 2018 and 24 May 2019 for the applicant’s completion of grade 10 and 11.
·Photos, text messages and handwritten notes claiming the sponsor bought sports presents for the applicant in May and August 2019 and a motorbike.
·Receipt dated 7 May 2019 showing the sponsor sent sports shoes and sweater to the applicant.
·A printed page from Van Lang University website showing the applicant has been considered for admission to this university based on her academic scores. No information or evidence has been provided to confirm that the applicant has enrolled or studied at this university.
·On Form 47A, the applicant stated that she received money, tuition and rental assistance from the primary applicant since 2002 and financial support for daily living expenses from the sponsor since 2007 and recently a motorbike. The applicant also stated that her grandmother Tran Thi Lan also provided accommodation and support for the costs of schooling and day to day needs.
·In the Questionnaire for dependent children who have turned 18 but not turned 23, the applicant stated that she was still in school and had no job.
·The applicant’s letter dated 6 March 2020 stating that she has moved out to live since 1 October 2019 to train herself to be independent, and her parents provided her with 2 million VND every month. This letter was signed by the applicant and the claimed landlord/house owner NGUYEN Van Phong.’
In addition, as previously stated, current money transfer receipts for the period of June 2021 until May 2024 have been tendered to the Tribunal. The Tribunal accepts them as genuine. The evidence clearly shows the support has been over many years and very substantial in nature. This support was in some cases provided by the sponsor through financial support to the primary applicant who in turn provided financial support to the secondary applicant until she came to Australia and in some cases directly to the applicant Ms Ly once her mother moved to be with her husband in Australia. It is reasonable to accept that the funds provided came from the joint resources of the primary applicant and her husband the review applicant.
Evidence of university enrolment has been tendered as has a statement made by the applicant explaining why she took a pause from her studies due to her sponsor and mother’s financial challenges post the Covid 19 pandemic. The Tribunal accepts this explanation as both plausible and reasonable. There is evidence showing 2 years of full-time study at university prior to the pause inflicted by circumstances beyond the applicant’s control.
As stated above, a person must be wholly or substantially reliant upon the other person at the relevant time and for a substantial period immediately before the relevant time. In this case the definition of ‘dependent’ arises in relation to a time of application criterion. Therefore, the applicants must be dependent on the relevant person at the time of application and for a ‘substantial period’ immediately before the visa application. There is no definition in the Regulations of what constitutes a ‘substantial period’. In the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period.[14]
[14] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.1.03 which refers to a relative who ’has been dependent on that person for a reasonable period, and remains so dependent’ and how it should be reconciled with the definition of dependent in r.1.05A that the person should be wholly or substantially reliant upon the other person for a substantial period. His Honour went on to state at [44] that, by contrast, a ‘reasonable period’ need not be lengthy.
Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months.[15] However, while the Tribunal may have regard to Departmental guidelines or interpretations, it is not binding on the Tribunal and the individual circumstances of the case are considered to ensure that the departmental guidelines are not elevated or treated as a legislative requirement.
[15] PAM3: Act - Act-defined terms - s5G – Relationships and family members – Dependent family members – paragraph 41.2 (compilation 23/3/12).
As aforementioned, in Zeng v MIMIA[16] the following factors were identified as relevant to the consideration of whether the dependence was for a ‘substantial period’:
·     the actual period of dependence;
·     the reason for the dependence; and
·     the extent or nature of the dependence.[17]
In this case the care provided by the sponsor to the primary applicant and subsequently to the secondary applicant is claimed to have been over a ‘substantial period’ of many years. The Tribunal accepts copies of the multiple remittance receipts, over many years as genuine. The physical evidence presented supports the fact that direct support to the applicant continued once the applicant’s mother arrived in Australia. The continuing financial support was provided by both the review applicant and primary applicant since the time the primary applicant joined her husband in Australia. For the reasons stated above the Tribunal accepts that financial support has been provided for a “substantial period”.
Financial support provided by a couple
[16] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).
[17] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [13]
The Regulations generally identify a single person (e.g. the primary visa applicant or the sponsor) on whom a visa applicant is required to be ‘dependent’. As a practical matter, where that person is part of a couple it is often difficult to ascertain whether that person or their partner is in fact the person on whom the visa applicant is reliant. The Federal Magistrates Court in Al Naqi[18] 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 support and the reasons for it. Federal Magistrate Riethmuller (as he then was) 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.’[19] Applying this to the circumstances of this case, the primary applicant may be considered to be the source of the earlier support prior to her departure for Australia because it is her spousal relationship with the sponsor that is the reason for the financial support being provided to the secondary applicant.
[18] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007).
[19] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007) at [16]. However, note that in Phin v MIAC [2013] FMCA 60, Burchardt FM clarified in obiter that the comments in Al Naqi regarding spousal arrangements did not give rise to any broader principle and were confined to the facts of that case.
Importantly, in Phin v MIAC[20], Burchardt FM indicated in obiter that the comments in Al Naqi regarding spousal arrangements did not give rise to any broader principle and were confined to the facts of that case.[21] However, ultimately, the judgments in Al Naqi and Phin demonstrate that the issue of dependency is a question of fact determined by the Tribunal having regard to the factual matrix of the particular case at hand.
[20] [2013] FMCA 60.
[21] See Phin v MIAC [2013] FMCA 60. In this case, the primary visa applicant for a Remaining Relative visa provided funds to her adult son, which she had in turn received from the Australian sponsor, her brother. The Court found that the Tribunal had erred by moving directly from the issue of the source of funds to a conclusion that the adult son was not dependent upon the primary visa applicant, without making a finding on the factual issue that the Regulations required to be addressed, namely whether he was indeed dependent upon her.
The Tribunal explored the issue of additional income sources obtained by the applicant being used to support themselves. No evidence came to light, nor was provided by the delegate to indicate they were earning additional funds. When considering the substantial funds provided to the applicant it would be reasonable to assume independent income sources were unnecessary.
The Tribunal has been provided with sufficient evidence in the form of the Statutory Declaration made by the review applicant on 30 May 2024, as well as the evidence previously supplied to the Department in the application and subsequent evidence to satisfy it that the primary applicant and the review applicant were the primary givers of support for the applicant over many years. Firstly, as a child and then latterly as a young adult.
It acknowledges the housing contribution made by a grandparent in the form of housing in the family home which housed an extended family. This was prior to the applicant renting independently as demonstrated by the rental agreement evidence submitted to the Tribunal. It additionally accepts the statement made that the applicant’s biological father briefly assisted briefly when the economic climate was difficult for the sponsor and his wife. Both these contributions were secondary to the substantial long-term contributions made by Mr and Mrs Tran. The Tribunal is conversant with the responsibilities of family as expressed in Vietnamese culture. It is unsurprised that the extended family helped support the applicant as did her father even though he had a new family following his divorce from her mother.
The Tribunal finds from all the above evidence discussed the visa applicant is ‘dependent’ on another person (the review applicant) as it is satisfied that:
·They are ‘wholly or substantially’ reliant on another person for financial support given that they are not working or otherwise receiving support; and
·are so reliant at the time the finding of dependence is made and for a ‘substantial period’ before the application for the visas was lodged; and
·the financial support being provided is to meet the secondary visa applicant’s basic needs for food, clothing and shelter; and
·the secondary visa applicants’ reliance on the review applicant and the primary applicant is greater than their reliance on any other person or source of support.
Subsequently the Tribunal finds that the visa applicant is considered a member of the family unit of the primary applicant as defined in Regulation 1.12. The applicants have satisfied the requirements of 1.05A. This was at the time of application and at the time of this decision. As the secondary applicant is a member of the family unit of the primary applicant for the purposes of this application, they satisfy both Clause 309.321 and Clause 309.311 of Schedule 2 to the Regulations.
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
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first and second named visa applicants meet 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
Peter Emmerton
Member