Vo (Migration)

[2020] AATA 3580

Vo (Migration) [2020] AATA 3580 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tung Long Thi Vo

CASE NUMBER:  1918419

HOME AFFAIRS REFERENCE(S):          BCC2015/959800

MEMBER:Kate Millar

DATE:13 July 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 13 July 2020 at 6:09pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Full Federal Court remittal – member of family unit – ‘usually resident in the family head’s household’ – evidence of a common address –dependency – reliance on more than one person – dependent as distinct from merely receiving assistance – ‘substantial reliance’ – temporal and qualitative elements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A; 1.12; Schedule 2, cl 187.311

CASES
Vo v Minister for Home Affairs [2019] FCAFC 108

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Tung Long Thi Vo is a citizen of the United States. On 26 March 2015 she applied to come to Australia on the basis that she is a member of the family unit of her son Mr Ricky Nguyen. Mr Nguyen had applied for a Subclass 187 visa and has been granted this visa.

2. To be a member of another person’s family unit, the person must be a relative of the person who does not have a spouse or de facto partner, is usually resident in the family head’s household, and is dependent of the family head. In this case, Mr Nguyen is the family head.

3. Ms Vo’s visa application was originally refused because a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs found that she did not meet the requirement to be a member of Mr Nguyen’s family unit. The delegate was not satisfied Ms Vo was usually resident in Mr Nguyen’s household, and therefore she did not meet the definition of member of the family unit. Ms Vo applied to this Tribunal for a review of the decision.

4. On review, the Tribunal (differently constituted) found that Ms Vo was not dependent on Mr Nguyen as defined in the Migration Regulations 1994 (the Regulations).

5. This decision was affirmed by the Federal Circuit Court, and then set aside by the Full Court of the Federal Court in Vo v Minister for Home Affairs[1] (Vo) which remitted this matter for reconsideration to the Tribunal.

   [1] [2019] FCAFC 108

6. This is the rehearing of this matter following remittal by the Court.

7. Ms Vo appeared before the Tribunal on 31 March 2020 by teleconference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ricky Nguyen, Mr Tung Thoi Vo (Mr Khoi), Mr Tung Tho Vo (Mr Tung) and Ms Doung Anh Hoa (Ms Hoa). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Ms Vo was represented in relation to the review by her registered migration agent.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone. In this case, much of the evidence has been canvased in previous hearings, and new information has been provided about the circumstances in the period from the previous Tribunal hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   BACKGROUND

10. Ms Vo and Mr Nguyen provided statutory declarations and gave oral evidence to the Tribunal. This background is drawn from their statutory declarations and oral evidence. Ms Vo was born in Vietnam and is one of 13 siblings. There are 10 brothers and 3 sisters, with 8 siblings in Perth, 2 in the United States, 2 in Vietnam and one is deceased.

11. Ms Vo divorced in 1990, and Mr Nguyen is her only child and was born in 1985. In 2002, they migrated to the United States to join her parents who were granted humanitarian visas as her father was in the army. Ms Vo lived in the United States for approximately 8 years, and first came to Australia in 2009.

12. Mr Nguyen migrated to Australia on 11 December 2008, and Ms Vo remained in the United States. He applied for a Subclass 457 visa in 2009, however this was not granted until March 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

14. The applicant applied for the visa on 26 March 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

15. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Ms Vo is required to meet the secondary criteria in Part 187 to be granted the visa.

16. The delegate refused the visa on the basis that she did not meet cl.187.311 of Schedule 2 to the Regulations, in particular the requirement that she is a member of the family unit of Mr Nguyen. As Mr Nguyen was granted this visa, and Ms Vo made a combined application with Mr Nguyen, she otherwise meets the requirements of cl.187.311.

17. The issue in this case then is whether Ms Vo is a member of Mr Nguyen’s family unit.

18. As the Regulations were at the relevant time, the secondary criteria in Part 187.3 include a note that states These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

19. The notes to the Schedule form part of the Regulations[2] and must be given meaning.[3] This meaning may be in the context of the statute as a whole. It follows that the time at which Ms Vo must be a member of Mr Nguyen’s family unit is the time of this decision.

    [2] Legislation Act 2003 (Cth) s.13; Acts Interpretation Act 1901 (Cth) s.13

    [3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]

20. Regulation 1.12 sets out the definition of member of a family unit and, as it applies to Ms Vo, required that she:

    ·     Is a relative of Mr Nguyen; and

    ·     Does not have a spouse or de facto partner; and

    ·     Is usually resident in Mr Nguyen’s household; and

    ·     Is dependent on Mr Nguyen.

    Is Ms Vo a relative of Mr Nguyen?

21. Ms Vo provided a translated birth certificate for Hoa Minh Nguyen, and a translated divorce order specifying a child of the relationship is Hoa Minh Nguyen. She provided a change of name certificate stating Hoa Minh Nguyen is now known as Ricky Minh Nguyen. She also provided a DNA test, albeit where the taking of the samples was not supervised by Immigration, that shows she as the mother of Mr Nguyen to a probability of 99.99%.

22. As a result of this information, the Tribunal is satisfied Ms Vo is the mother of Mr Nguyen.

    Does Ms Vo have a spouse or de facto partner?

23. In her statutory declarations, Ms Vo states has been divorced since 1990 and has not had a spouse or de facto partner since. There is nothing to indicate otherwise, and the Tribunal finds she does not have a spouse or de facto partner. 

    Is Ms Vo usually resident in Mr Nguyen’s household?

24. The delegate was not satisfied Ms Vo was usually resident in Mr Nguyen’s household because the delegate found she had failed to provide evidence, such as home ownership by the main applicant or a rental agreement, to support the claim that she is living under the same roof as Mr Nguyen.

25. Ms Vo has been in Australia on tourist visas the majority of the time since 2009. She was out of Australia for 6 months in 2010, for approximately 4 and a half months in 2011, approximately 2 and a half months in 2012, approximately 2 and a half months in 2013, approximately 3 months in 2014, and in 2015 for 9 days. Since then, Ms Vo has left Australia for periods of less than 3 weeks in 2016 and 2019.

26. Ms Vo claimed to live with Mr Nguyen for 3 years before the visa application and provided bank statements and an insurance policy as evidence of a common address, as well as a lease agreement in both names for the period 7 August 2011 to 7 October 2014. She provided an application to lease a property which belongs to her sister-in-law. The address of Mr Nguyen and Ms Vo on their individual bank account statements from 2016 to 2019 show this address.

27. In his statutory declaration of 6 July 2015, Mr Tung states he lived with Ms Vo and Mr Nguyen in the United States and that he has seen that they both lived together in the United States and in Australia. He provided a further statutory declaration dated 26 March 2020, in which he states he calls in to see Ms Vo and Mr Nguyen up to 2 to 3 times a week. Ms Duong Anh Hoa provided a statutory declaration that she and her husband go to Ms Vo and Mr Nguyen’s residence frequently.

28. The Tribunal is satisfied Ms Vo and Mr Nguyen live together at the same address, and Ms Vo is usually resident in the same household as Mr Nguyen.

    Is Ms Vo dependent on Mr Nguyen?

29. Regulation 1.05A provides that 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.

30. The Full Court in Vo held that r.1.05A (a)(ii) of this Regulation contemplates that a person may be wholly or substantially reliant on more than one other person in which case it is necessary to consider which of these other persons the dependent person placed greatest reliance upon.[4]

    [4] At [14]

31. The Court also states that r.1.05A(a)(ii) requires a meaningful degree of financial reliance on a person to an extent that the person might be properly described as being dependent on that person (as distinct from merely receiving assistance from that person) for basic needs. There must be a degree of confidence or trust in the support and it must be sufficient that without the extent of support provided by the other person the dependent person would be in a position where their overall basic need for food, clothing and shelter though aided by others would not be met. [5]

    [5] At [17]

32. The Court also clarified that “substantial reliance” does not mean primarily, essentially or in the main, and that the contention that this means only reliant on one person to the exclusion of others or at least reliant to an extent that is more than 50% was rejected.[6]

    [6] At [19]

33. A third aspect to consider is that the Court held it is necessary to keep steadily in mind that that definition in r.105A has both a temporal and a qualitative element. The temporal element is the period that is ‘a substantial period immediately before’ the time when it is necessary to establish if the person is dependent on the other person, and the qualitative element is the degree of dependency or reliance. To satisfy the clause, the person must be wholly or substantially reliant in the relevant period at the time it is necessary to establish dependence; the reliance on the first person was greater than the reliance on any other person.[7]

    [7] At [20]

34. The Court held the previously constituted Tribunal had erred in impliedly considering that because Ms Vo could look to support from another source, she was not dependent on Mr Nguyen. It found the Tribunal has also erred in not considering sums of money Mr Nguyen said he provided to Ms Vo when she went to Vietnam.

35. In this case, the temporal element has now changed due to the passage of time from when the visa application was first lodged. The Tribunal considers the 4 years from the time the visa was lodged to be a substantial time for the purpose of r.1.05A.

36. The representative states this matter raises issue of estoppel as at the time of lodging the application for a Subclass 187 visa, she held a dependent secondary Subclass 457 visa. A decision of this Tribunal dated 29 January 2013 remitting a decision of the Department to refuse Ms Vo a Subclass 457 visa was provided. It can be seen from this decision that the issue on which the application was remitted was that Mr Nguyen’s sponsor, Gentle Nail Designs (apparently a business owned by Mr Thoi[8]), was refused approval as a sponsor. On the Tribunal approving the sponsorship, it remitted Ms Vo’s application. The decision does not disclose any detailed consideration of whether Ms Vo was a dependent of Mr Nguyen and it does not refer to or consider the definition of dependent. The Tribunal is required to consider whether Ms Vo is a member of Mr Nguyen’s household as at the date of this decision, 7 years after the previous decision of the Tribunal. As the Tribunal considered a different aspect of this matter for a different visa subclass 7 years ago, this does not bind this Tribunal in this matter.

    [8] Statutory declaration of Tung Thoi Vo dated 26 March 2020

37. Mr Nguyen did not work when he first came to Australia as he says he borrowed money from his uncles. He provided information consistent with that of Mr Khoi and Mr Tung about the amounts he borrowed and the repayment of these amounts. Mr Nguyen’s bank accounts in 2010 show he was generally only marginally in credit in his bank accounts and frequently in debit. His bank accounts do not show a source of income until a lump sum is deposited on 15 March 2011 followed by large cash deposits approximately monthly in amounts of $3,000 to $4,000 before increasing substantially in the latter part of 2013. According to Ms Vo, he was granted permission to work in March 2014. Very large cash deposits to Mr Nguyen’s account appear that are not consistent with his reported income of $1,140 per week gross up to 2016. Mr Nguyen reports he was a manager at a beauty salon and his employer was Australian Employment Force Pty Ltd. His aunt is the account keeper for this entity. This does not match the very large sums deposited to his account. Nevertheless, it does show he had, and continues to have, the financial capacity to support Ms Vo.

38. Mr Nguyen provided ASIC searches to show he is a director and shareholder in M & P WA Pty Ltd and RM Holdings WA Pty Ltd. He provided information to show he is currently operating a Vietnamese restaurant.

39. The bank statements provided to the Tribunal show that Mr Nguyen commenced transferring money to Ms Vo’s account a regular basis in October 2015, after the date of the visa application. Ms Vo’s bank account in Australia shows regular deposits from Mr Nguyen from this time to November 2019. It does not appear that she withdraws these amounts.

40. A letter was provided from HBF showing Mr Nguyen has paid health insurance for Ms Vo from 2009.

41. Mr Khoi confirmed that he had loaned over $10,000 which Mr Nguyen had repaid in cash in amounts of between $100 and $1,000. He said it is part of Vietnamese culture that the eldest son takes responsibility for the parents. In his statutory declaration of 26 March 2020, he states he loaned money to Mr Nguyen to assist in the care and upkeep of Ms Vo, but he could not recall exact amounts. He states smaller amounts were gifts and larger amounts were interest-free loans.

42. Ms Hoa provided a statutory declaration dated 26 March 2020 that states that Mr Nguyen provides Ms Vo with financial support, with the family occasionally providing assistance to Mr Nguyen to settle into Australia.

43. Mr Tung provided a statutory declaration dated 26 March 2020 that he provided money to Mr Nguyen in earlier times to assist in his care and upkeep of Ms Vo. In his oral evidence, he said he loaned approximately $8,000 to Mr Nguyen which has been repaid by Mr Nguyen in sums of between $200 and $500 over a year.

44. The Tribunal is satisfied Ms Vo has been wholly or substantially reliant on Mr Nguyen for financial support to meet her basic needs for food, clothing and shelter, for a substantial and that her reliance on Mr Nguyen is greater than her reliance on another other person or source of support.  

45. The Tribunal finds Mr Nguyen has continued to support, and has the financial capacity to support, Ms Vo from the time of the visa application in 2015, which is now a substantial period.

    CONCLUSION

46. The Tribunal has found Ms Vo is related to Mr Nguyen, she does not have a spouse or de facto partner, is usually resident in his household and is dependent on him. Mr Nguyen holds a Subclass 187 visa.

47. As a result, Ms Vo meet the requirements in cl.187.311.

48. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

49. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.311 of Schedule 2 to the Regulations.

    Kate Millar

    Senior Member