Tran (Migration)

[2019] AATA 3292

Tran (Migration) [2019] AATA 3292 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Le Binh Tran

VISA APPLICANT:  Miss Thi Minh Anh Nguyen

CASE NUMBER:  1720954

HOME AFFAIRS REFERENCE(S):          2016039774

MEMBER:Justin Owen

DATE:5 March 2019

PLACE OF DECISION:  Sydney

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.101.212 of Schedule 2 to the Regulations;

·cl.101.213 of Schedule 2 to the Regulations;

·cl.101.221(2) of Schedule 2 to the Regulations; and

·cl.101.222 of Schedule 2 to the Regulations.

Statement made on 05 March 2019 at 5:38pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child criteria – financial reliance on the sponsor – financial supplied arranged via former solicitor – tertiary studies – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 101.211 – 101.213, 101.221, 101.222; Schedule 4; Public Interest Criteria 4005; rr 1.03, 1.05

CASES

Huynh v MIMA [2006] FCAFC 122
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190         

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 on 1 September 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 for the visa on 26 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 criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visa on the basis that cl.101.211(1)(a) was not met because based on the evidence submitted and the information provided at review, the visa applicant was not at the time of application wholly/substantially reliant on the sponsor for financial support to meet their basic needs for food, clothing and shelter, or that their reliance on the sponsor is greater than her reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.  

5. The review applicant appeared before the Tribunal on 19 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  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.  The registered migration agent attended the hearing.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant is a dependent child of an Australian citizen; the holder of a permanent visa; or an eligible New Zealand citizen. 

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Dependent child

10. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

11. 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].

12. The review applicant explained to the Tribunal that she lived in Punchbowl with her husband, her daughter born in 2012 (the visa applicant’s half-sister) and the visa applicant’s brother Mr Thanh Long Nguyen who was born 27 June 2000.  The review applicant explained that whilst her two children in Vietnam had lived together and applied for their Child visa at the same time, her son and the visa applicant’s brother Mr Thanh Long Nguyen had been granted his Child (Class AH) Child Visa on 31 May 2018 by the Department of Home Affairs.  He had arrived in Australia in July 2018 and was now residing with her.   A copy of the Home Affairs paperwork granting the visa applicant’s son’s Child visa was subsequently provided to the Tribunal. (T1, Folio.73-76)

13. The review applicant explained to the Tribunal that both the visa applicant and her brother had applied for their Child visa at the same time.  His had been granted whilst the visa applicant’s refused due to the fact the delegate did not regard her as meeting the dependent child criteria. 

14. The Tribunal noted the evidence of transfers of funds from the review applicant to the visa applicant after the lodgement of the visa application in September 2016 (T1, Folio.15-17).  The Tribunal noted that regulation 1.05(1)(a)(i) requires that the visa applicant demonstrate that she was dependent on the review applicant for a substantial period of time prior to the application and policy stated that this period was usually taken to be at least twelve months.  The Tribunal asked the review applicant of evidence of the visa applicant’s reliance on her between October 2015 and the time of application in September 2016. 

15. The review applicant claimed that she had provided money to the visa applicant on a monthly basis and gave her receipts to her former solicitor that was at that time managing the Child visa applications of both the visa applicant and her brother.  She claimed that she was sending money on a monthly basis for food, clothing and shelter and provided the receipts to her then solicitor.  She said she also provided funds to the visa applicant and her brother who now resides in Australia via friends or during her many travels to Vietnam. The Tribunal notes that the review applicant has travelled to Vietnam on multiple occasions each year for a significant period of time: in fact during the year leading into the lodgement of the application the review applicant travelled to Vietnam on at least five occasions (T1, Folio.45-52).  

16. The Tribunal raised with the review applicant the visa applicant’s interview with the Department on 27 April 2017 where the visa applicant stated that the review applicant as providing $AUD200 to 300 dollars a month.  The review applicant agreed that was the case at that time but now she was contributing greater amounts.  The visa applicant’s own testimony reflected this claim.  This was also reflected in the receipts the review applicant provided of transfers over the last few years.  The Tribunal noted that in the year leading into the lodgement of the Child visa application there was only the one confirmed receipt of transfer of $AUD700.  The Tribunal notes however for the majority of this period the review applicant was in Vietnam.  The Tribunal on the evidence of the review applicant, the visa applicant and the documentary evidence of the parties is prepared to accept that the review applicant was providing the visa applicant with financial support for food, clothing and shelter well beyond the one receipt of $700 during that period and was providing assistance in cash. 

17. The Tribunal spent some time discussing with the review applicant her relationship with her former solicitor that managed the original Child visa applications of the visa applicant and her brother.  She said that she had paid $12,000 to her former solicitor in three payments in May and June 2015 for him to manage the process.  The Tribunal notes the receipts the review applicant provided pertaining to her payments to her former solicitor.  She said he had stated the funds were for his services and the application fees.  The review applicant and her representative discussed the challenges the review applicant had faced with her former solicitor.  The review applicant said that she had essentially spent the whole of her savings on the solicitor who had not run the Child visa applications either competently or professionally and had ultimately refused to return some of the documentation she had supplied him for the purposes of the Child visa applications.  The Tribunal noted that the review applicant and her then representative had failed to respond to the delegate’s requests for further information in June and July 2017 which precipitated his subsequent refusal of the visa application.  The review applicants said she had no idea that the Department had made the request and she only became aware of it after her then solicitor provided her with a copy of the Home Affairs refusal.    The Tribunal enquired if MARA or the Law Society had been approached to raise these issues.  The applicant’s representative said that this was one of the issues being planned after the visa process was completed.  The Tribunal has some sympathy for the review applicant’s predicament in relation to her former solicitor and is prepared to accept the review applicant’s claim that she was unaware that the delegate was requesting further information due to her representative’s ineptitude and failure to keep her informed.  

18. The Tribunal notes that the visa applicant has consistently studied at the tertiary level since completing schooling, graduating with a degree in engineering from the Vietnam Maritime University (T1, Folio.36) and currently studying a degree in corporate accounting at the Hai Phong Polytechnics College which is due to be completed in 2021 (T1, Folio.37). Both the review applicant and the visa applicant submitted that the review applicant pays these fees which are around $AUD400 to $500 per month and the monies come out of the transfers the review applicant makes on a regular basis. The visa applicant subsequently makes payment to the tertiary institution via cash payments each term.   The Tribunal on the basis of the clear and consistent evidence of the review applicant and the visa applicant is prepared to accept that the review applicant is paying the visa applicant’s tuition fees.

19. The review applicant says there is no payments made for shelter due to the fact that the visa applicant is living with her parents – the visa applicant’s grandparents since 2008.  Both the review applicant and the visa applicant volunteered that whilst the visa applicant has lived there rent free for many years, the review applicant does make a contribution of around three million Vietnamese dong per month for food which was for the benefit of the visa applicant, previously her son who now resides in Australia, as well as her own parents.  The Tribunal notes the evidence of payments being made to the visa applicant in 2016, 2017 and 2018 and recognises the review applicant’s numerous visits to Vietnam.  The Tribunal on balance accepts the claim that the review applicant was also making payments of cash to the visa applicant for food (in conjunction with the money going to help look after her own parents both via transfers and in cash in person. 

20. Both the review applicant and visa applicant said that the visa applicant is not married or engaged.  Both stated that the visa applicant does not have any physical or mental disabilities.  Both stated that the applicant has not been in full-time employment since completing school.  The Tribunal has accepted this claim. 

21. The Tribunal noted that the visa applicant had claimed at interview with the Department of Home Affairs that she had received occasional financial support from her father (D1, Folio.85).  The review applicant said she was not sure about that and she was the one supporting her.  The review applicant said that her former husband lived in the same city as her daughter and parents and resided 15 to 20 minutes away.  She said that she believed he had a three year old child in another relationship. 

22. The Tribunal questioned the visa applicant in significant detail about her father and her relationship with her father.  The visa applicant stated that she rarely sees her father and doesn’t stay with him.  She said he was married with a young child.  The visa applicant said nobody else financially supported her, only her mother. 

23. The Tribunal questioned the visa applicant about her claims at interview in 2017 that her father had provided her with monies.  The Tribunal put the issue to the visa applicant under s359AA.  She claimed this last occurred about two years ago.  She stated that normally he does did not support her.  She claimed support for her needs – whether they are clothing, tuition or food came from her mother the review applicant.  She acknowledged that he gave her some monies when he had seen her but this in no way represented ‘support’.  The Tribunal appreciates the distinction the visa applicant is drawing between ‘support’: that is ongoing and consistent financial support for her food, clothing and shelter as opposed to the occasional offer of monies from her father on the occasional times she saw him.  Even if the visa applicant did ask her father for some money when she saw him – as outlined in the visa applicant’s interview in April 2017 with the Department - the Tribunal in this matter is prepared to draw a distinction between such an occasional request for some money to her father as opposed to ongoing, regular and consistent financial support from her mother the review applicant.  The former does not suggest a ‘dependent’ relationship, the latter does.     

24. The Tribunal accepts the oral testimony of the visa applicant and the review applicant that the review applicant has regularly provided funds to the visa applicant for her food and clothing for many years.  The Tribunal notes that shelter is provided free of charge by the review applicant’s parents, her grandparents.  The Tribunal furthermore accepts that the tuition fees the visa applicant requires are provided by the review applicant. The Tribunal notes that there is an amount of corroborative evidence concerning funds transfers from the review applicant in recent years.  Whilst there is only one receipt in the year leading into the lodgement of the visa application, the Tribunal accepts the claim that the review applicant was providing funds to her daughter (and her son who was granted his Child visa) whilst she was on her multiple and frequent visits to Vietnam.  

25. The Tribunal on the evidence before it is satisfied that the visa applicant is a ‘dependent child’ of an eligible person – being her mother the review applicant at the time of application and the time of decision.  The visa applicant is wholly or substantially reliant upon the review applicant for her basic needs at the time of application and the time of decision.            

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

    Applicant under 25 or incapacitated for work

27. At the time of application, the visa applicant must not have turned 25. 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(1)(b), (2).

28. At the time of application the visa applicant was 19 years of age.  At the time of decision she is 22 years of age.

29. Accordingly, cl.101.211(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Child-parent relationship

30. At the time of 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: cl.101.211(1)(c).

31. At the time of application and the time of decision the visa applicant was the child of an eligible person, being the review applicant her mother who was an Australian permanent resident at the time of application and the time of decision. 

32. Accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

33. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a) are met.

    Criteria for applicants over 18

34. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Relationship status and history

35. At the time of application, the 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). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

36. There is no evidence to suggest that the visa applicant is engaged to be married.  There is no evidence to suggest the applicant has, or has had previously, a spouse or de facto partner.  Accordingly, cl.101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

37. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

38. There is no evidence to suggest that the visa applicant has engaged in full-time work at either the time of application or the time of decision.  The records clearly state she has been a full-time student for this duration of this period.  Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

39. At the time of application, the visa applicant must have, since turning 18, or within 6 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).

40. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. 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).

1. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

2. The Tribunal notes that the visa applicant has consistently studied at the tertiary level since completing schooling, graduating with a degree in engineering from the Vietnam Maritime University and currently studying a degree in corporate accounting at the Hai Phong Polytechnics College which is due to be completed in 2021.

3. The Tribunal notes that the visa applicant submitted to the Department a confirmation of studies issued by the Vietnam Maritime University on 20 January 2015 stating that she was studying full-time.  The Tribunal notes that that was well over a year prior to the lodgement of the visa application.  The Tribunal notes the evidence that the visa applicant commenced her studies in September 2014 and was due to graduate in January 2019 (D1, Folio.86).  The Tribunal notes that the visa applicant successfully completed her studies with the Vietnam Maritime University and commenced her enrolment in corporate accounting in 2018.    

4. Accordingly, cl.101.213(1)(c) is met at the time of application and it continues to be met at the time of decision.

5. For the reasons above, cl.101.213 is met at the time of application.

6. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

   Sponsorship

7. Clause 101.212 requires that, at the time of application, the visa applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the visa applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. At the time of decision, this sponsorship must have been approved and still be in force: cl.101.222.

8. At the time of application the visa applicant was sponsored by her mother, the review applicant who was an Australian permanent resident.   The visa applicant was the dependent child of her sponsor, the review applicant.   At the time of application the review applicant was 38 years of age. At the time of decision the sponsorship remains approved and in force.    

9. Accordingly, the requirements in cl.101.212 and cl.101.222 are met.

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

11. The Tribunal notes that a s376 and a s375A certificate were lodged by the delegate on a number of the same portfolios pertaining to allegations made against the review applicant in relation to herself and her two children, the visa applicant and her son that was recently granted a 101 Child visa.  After drawing this to the delegate’s attention the two certificates were revoked and a new s375A certificate was issued.  The Tribunal considered the certificate to be valid.  The Tribunal informed the review applicant about the s375A certificate at the hearing and put the allegations to the review applicant under the relevant provisions.  After consulting with her representative the review applicant decided to respond at the hearing.  The review applicant denied the allegations.  On the evidence before it the Tribunal considered some of the allegations to be spurious and possibly vexatious whilst others were not sustained by the evidence before the Tribunal such as a claim that the visa applicant’s son had no wish to come to Australia when he has both applied and been subsequently granted a 101 Child visa.  The Tribunal gave the allegations no adverse weight in its review of the visa applicant’s visa refusal.         

    DECISION

12. 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.101.212 of Schedule 2 to the Regulations;

    ·cl.101.213 of Schedule 2 to the Regulations;

    ·cl.101.221(2) of Schedule 2 to the Regulations; and

    ·cl.101.222 of Schedule 2 to the Regulations.

    Justin Owen
    Senior 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.

    …