Vo (Migration)

[2018] AATA 3296

Vo (Migration) [2018] AATA 3296 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Quyen Thi Thuy Vo

VISA APPLICANT:  Mr Dang Hai Vo

CASE NUMBER:  1517811

DIBP REFERENCE(S):  OSF2013/085020

MEMBER:Justine Clarke

DATE:17 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

· cl.143.311 of Schedule 2 to the Regulations; and

· cl.143.321 of Schedule 2 to the Regulations

Statement made on 17 July 2018 at 11:26am

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Whether the applicant was a member of the family unit of the primary visa applicant at the time of application – Applicant dependant on the primary visa applicant at all material times - Evidence of parties largely consistent – Decision remitted with direction

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 62A
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12, Schedule 2, cls 143.311, 143.321

CASES
Huynh v MIMIA [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 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. On 30 June 2013, Ms Ngoc Thi Tuyet Nguyen applied for a Contributory Parent (Migrant) (Class CA) Subclass 143 visa. Her son, Mr Dang Hai Vo, was the secondary applicant and claims to be a member of Ms Nguyen’s family unit. Mr Vo was 22 years of age at the time of application. (The Tribunal notes that this is the second such application for a Contributory Parent visa; an earlier application having been made in 2011 and subsequently refused).

3. The review applicant, Mrs Quyen Thi Thuy Vo (who is an Australian citizen), sponsored her mother’s and brother’s applications for the visas.

4. Subsequently, Ms Nguyen was granted the visa.

5. On 21 August 2015, the delegate refused to grant Mr Vo (hereafter the visa applicant) the visa on the basis that he did not meet cl.143.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Clause 143.311(a) requires that, at the time of application, the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 143.21.

6. Subsequently, the Department ascertained that the visa applicant had not been correctly notified of the decision so he was renotified on 17 December 2015.

7. The review applicant provided the Tribunal with a copy of the primary decision. The delegate expressed concerns with some of the evidence that had been submitted and concern about the lack of documents submitted in support of the claims that the visa applicant had been studying and was financially reliant upon his mother. In the circumstances, the delegate was not satisfied that the visa applicant was ‘dependent’ on Ms Nguyen within the meaning of r.1.05A, and therefore was not satisfied that he was a member of her family unit within the meaning of r.1.12.

8. On 23 December 2015, the review applicant applied to the Tribunal for review of that decision. The review applicant was represented in relation to the review by her registered migration agent although the representative changed in the course of the review.

9. On 21 March 2017, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nguyen and from the visa applicant. The visa applicant gave his oral evidence via telephone as he is offshore in Vietnam. The representative attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. At the hearing, the Tribunal stated that the review applicant could provide further documentary evidence with respect to the visa applicant’s claim that he is a member of his mother’s family unit by 24 March 2017. The applicants submitted further evidence on 24 March 2017.

11. Due to subsequent events, the then presiding Member was not available to finalise the review.

12. Subsequently, the matter was constituted to the current presiding Member. The current presiding Member has listened to the audio recording of the first hearing in full.

13. On 26 April 2018, the Tribunal wrote to the review applicant inviting her to attend a further hearing on 7 June 2018.

14. On 5 and 6 June 2018, the review applicant submitted further evidence in support of the review.

15. On 6 June 2018, the Tribunal contacted the review applicant’s registered migration agent in order to inform him that the Tribunal considered that a further hearing was no longer required.

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

    RELEVANT LAW

17. At the time the visa applications were lodged, the Contributory Parent (Migrant) (Class CA) visa contained Subclass 143 (Contributory Parent). The criteria for a Subclass 143 visa are set out in Part 143 of Schedule 2 to the Regulations. A member of the family unit who is an applicant for the visa needs to satisfy the secondary criteria.

18. Clause 143.311 is one of the secondary criteria to be satisfied at the time of application. It is extracted in the attachment to this decision.

19. The expression ‘member of the family unit’ is defined in r.1.12, and relevantly to this matter, includes the expression ‘dependent’ which is defined in r.1.05A. Both of these definitions are extracted in the attachment to this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issue

20. The issue in this case is whether, at the time of application on 30 June 2013, the visa applicant was a member of the family unit of Ms Nguyen, who, as was explained earlier, was the main applicant in this visa application.

21. Given the evidence that was provided and the length of time over which this review process has taken place, the Tribunal also considers it appropriate for the Tribunal to make findings as to whether, at the time of this decision, the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 143 visa: cl.143.321.

    Is the visa applicant a member of the family unit of the main applicant?

22. The definition of ‘dependent’ in r.1.05A requires that, at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter: r.1.05A(1)(a)(i). Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

23. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether, as a matter of fact, the first person is relying on the other person for support: Huynh v MIMIA [2006] FCAFC 122 at [44].

24. The visa applicant claims that, at the time of application, he was dependent on his mother for his everyday living expenses on the basis of being in full time study. Further, he claims that he has always been and, as at the time of this decision, continues to be dependent on his mother for his basic needs for food, clothing and shelter.

    The delegate’s concerns

25. The Tribunal notes that the delegate had three specific concerns.

26. First, the delegate noted that there was conflicting information before the Department about whether, at the relevant time, the applicant had been residing with his mother or separately and, as this discrepancy had not been explained, the delegate considered it ‘difficult to give substantial weight to the fact that Mr Vo was reliant upon his mother for shelter and food, if he was residing elsewhere’.

27. Secondly, the delegate noted that Ms Nguyen’s household register listed the visa applicant’s occupation as ‘business’ which raised questions regarding his student status.

28. Thirdly, the delegate was critical of the lack of documents provided. The delegate noted that the visa applicant had not completed and returned the dependency questionnaire that the Department had sent him. The delegate also noted that the applicant had not provided documents from the educational provider which corroborated his claim that he had been undertaking study and that no corroborating evidence had been provided that the educational institution had closed down in 2012 before he could complete his studies. The delegate had also been critical that the visa applicant provided so little evidence of the financial support he received from his mother.

    Assessment of the evidence

29. In this review application, the applicants sought to address the delegate’s various concerns. A number of documents were submitted, including the completed dependency questionnaire dated 20 September 2016.

30. In that questionnaire, the visa applicant claimed that he had been dependent on his mother throughout his life. He claimed that when his visa application was refused he had been studying at the Board of Regular Education and Vocational Center (which the Tribunal notes has been variously translated in documents and at the hearing) in Dong Thap Province but that now he was a full time student at the Vietnam-Russian Vocational College of Electromechanization and Construction (again, which the Tribunal notes has been variously translated in documents and at the hearing); that he was due to complete his mechanical apprenticeship course in June 2019; that he was not working and did not receive any form of pension or allowance from the Government or any other organisation; that his mother paid his school fees and covered his costs such as accommodation, food and clothing and that she did so on a monthly basis or when he requested money; and that he was not married or living in a de-facto relationship and that, in the near future, he had no plans to marry.

31. At the hearing, the visa applicant, the review applicant and Ms Nguyen gave consistent oral evidence that, at all relevant times, the visa applicant had been studying and had been dependent on Ms Nguyen for his accommodation, food, clothing and other living expenses such as tuition fees. For example, the visa applicant told the Tribunal that, between 2008 and the time of the hearing, his mother had paid for all of his tuition fees. He said that, when they lived together in Vietnam, his mother had paid for his rent, food and other expenses. In his own words, ‘she paid for everything’. He said that, since his mother had been living in Australia, he was reliant on the allowance that his mother sent him, usually monthly. Ms Nguyen gave consistent oral evidence, saying that, at the time of the hearing, she gives her son money to pay for the rent of the house where he is living in Cao Lanh City and that she continued to pay his tuition fees. In addition, in her own words, ‘he requires my money to buy clothes and he asks me for spending money as well’.

32. The review applicant explained that her mother had her own business in Vietnam, being a mandarin farm located in Dong Thap Province. (Ms Nguyen told the Tribunal that the farm was in Lai Vung, which is her father’s home town). The review applicant said that, after arriving in Australia, her mother continued to receive some income from this business. She gave oral evidence that her mother also has a nail salon in Brighton, Victoria.

33. The visa applicant, the review applicant and Ms Nguyen also all told the Tribunal that, at no point, had the visa applicant worked and that he does not receive any income from any other source or financial support from anyone else. When specifically asked, the review applicant denied that the visa applicant had worked at their mother’s mandarin farm in Vietnam. When asked, both the review applicant and Ms Nguyen told the Tribunal that the father of the review applicant and the visa applicant did not support the visa applicant in any way and explained that he had remarried and has a new family.

34. The Tribunal notes that the Member who conducted the hearing did not specifically ask the visa applicant, the review applicant or Ms Nguyen about why Ms Nguyen’s household register, which was mentioned in the primary decision, listed the visa applicant’s occupation as ‘business’. However, the Tribunal notes that, in Ms Nguyen’s statutory declaration of 13 May 2015, which is on the Department’s file and which was made a month after the household register book was changed on 7 April 2015, she had explained, ‘I have a house in Vietnam which I do business downstair[s] and we live upstair[s], my son (Dang Hai Vo) live with me. While he study he help me look after the business’.

35. The Tribunal did not afford the review applicant an opportunity to comment on or respond to this inconsistency about whether the visa applicant had ever worked in the relevant periods and so it gives this inconsistency no weight in this decision. It is in no part a reason for the Tribunal’s decision that the decision under review should be affirmed.

36. It appears to the Tribunal that the entry ‘Business’ may have been made to reflect the fact that the premises were used, in part, for a business.

37. In view of the totality of the evidence before the Tribunal and in light of the fact that all three persons gave oral evidence to the Tribunal by way of affirmation that the visa applicant had never worked, and noting that s.62A of the Administrative Appeals Tribunal Act 1975 (Cth) makes it an offence for a person to give evidence where the person does so knowing that the evidence is false or misleading, the Tribunal does not view this particular entry in Ms Nguyen’s household register or Ms Nguyen’s evidence in her statutory declaration that her son had helped her with her business as reasons or parts of the reason to affirm the decision under review.

38. The visa applicant told the Tribunal that, at the time of the hearing, he was studying a mechanical course in car repairs at the Vietnamese-Russian College in Cao Lanh City, Vietnam. He said that he had started the course on 12 June 2016. The Tribunal notes that the translated Admission Notice, dated 8 June 2016, which is on the Tribunal’s file corroborates this claim as it gives the admission time as 12 June 2016.

39. Prior to that, he said that he had been a student at the College of Technical Career Advancement in Cao Lanh City. He said that he had started studying there in September/October 2012 and that he finished around the end of May 2015. He said that he had been studying Years 11 and 12 and that he had completed Year 11 but had not passed Year 12. The Tribunal notes that there is a translated certificate on both the Department’s file (f.84) and the Tribunal’s file (f.89) which states that the visa applicant ‘[i]s student of class 12tl, school year 2014–2015 of Technical Vocational and Regular Education Center of Dong Thap Province’. While the translation does not include the date of the original document, the copy of the Vietnamese original has a date in 2015.

40. The visa applicant said that prior to that, he had been studying tourism management at Melior College in Ho Chi Minh City. He said that he had commenced there in 2008 and that he left the school in around June/July 2012. He acknowledged that he had not completed the course there and said that this was because the principal had stolen money from the college and absconded.

41. On the basis of the evidence before the Tribunal, the Tribunal finds that, at the time of application on 30 June 2013, the visa applicant was continuing with his studies as he had recently completed Year 11. The Tribunal is aware that, in Vietnam, the academic year starts in September and finishes in June. The evidence is that, in the school year 2012–13, the visa applicant studied Year 11. The Tribunal notes the corroborating documentary evidence on the Tribunal’s file: the ‘Hoc Ba’ and English translation entitled ‘School Report’. On the basis of this corroborating evidence, the Tribunal is satisfied that the visa applicant commenced Year 11 on 5 September 2012 and finished on 31 May 2013.

42. The Tribunal is also satisfied that there is documentary evidence to corroborate the visa applicant’s claims that he had been a student for a substantial period immediately before the time of application, namely when he had been studying at Melior Business School.

43. The Tribunal notes that, in his Form 47A, the visa applicant declared that he had started studying at the School in November 2009 and finished in June 2010 and that this was in respect of a ‘completion certificate’. He made a broadly consistent claim in his Form 80 of 30 April 2015 where he declared that he had learnt English in Ho Chi Minh City between November 2009 to June 2010. There is some evidence that he studied at Melior during this period of time. For example, the Tribunal’s file contains tuition receipts issued in April 2009, July 2009 January 2010, March 2010, April 2010 and June 2010 by the Melior Education Group in the visa applicant’s name.

44. The Tribunal notes that Ms Nguyen gave oral evidence that the visa applicant had studied at Melior from 2008 to 2012. (She had earlier made a consistent claim in her statutory declaration of 29 April 2015 which is on the Department’s file). She told the Tribunal that the applicant had started studying English there and then went into specialised vocational courses. No documentary evidence was provided to the Tribunal to corroborate Ms Nguyen’s claim that the visa applicant was studying at Melior in 2008. Further, the Tribunal notes that the Form 47 states that the visa applicant studied at the Hai Ba Trung School in Ho Chi Minh City for his secondary schooling from August 2006 to October 2009. In any event, whether or not the applicant studied at Melior in 2008 is not presently relevant.

45. The Form 47A states that the visa applicant commenced an Advanced Diploma in Tourism and Hospitality Management at the Melior Business School in July 2010. Again, the visa applicant made a consistent claim in his Form 80 of 30 April 2015.

46. A number of documents were provided to the Tribunal which evidence that the visa applicant studied at the Melior Business School until sometime in 2012. These documents included tuition receipts issued in late 2010, and also in 2011 and 2012 by the Melior Business School; a letter of confirmation from the School dated 26 October 2011 stating that the visa applicant had joined the School in July 2009; and a transcript of results issued in October 2011 showing results from July 2009 onwards as well as listing subjects to be undertaken in January 2012. In the submissions of 6 December 2016, the representative stated that the sudden closure of the Melior Business School in November 2012 had ‘left Mr Vo and hundreds of students facing a loss of tuition fees and the inability to obtain transcripts/certificates for studies partially completed’.  

47. The applicants submitted a number of documents, including a newspaper article, corroborating the visa applicant’s claim that the School had closed down before he could complete his studies there. The Tribunal is satisfied that the School closed down as claimed.

48. It was submitted, in the submissions of 15 March 2017, that:

    On closure of the business school the visa applicant and his mother then moved to the countryside, in Dong Thap Province, where they rented a property as per the annexed lease agreement [which is in respect of a property in Cao Lanh City].

    Once they had moved to this area the visa applicant completed year 11 and then year 12. He finished year 12 on 31 May 2015 and he and his mother were then eagerly awaiting their subclass 143 visa grant.

    On receipt of the request for the payment of the 2nd VAC the review applicant paid the $84,440 required for both applicants, not realising that a 2nd VAC in relation to her brother Dang Hai Vo had not been issued. The DIBP file shows a receipt for payment of the 2nd VAC for both applicants.

    A visa grant letter was issued to the primary applicant on 24 November 2015 and she and her son Dang Hai Vo then made arrangements to travel to Australia together; thinking that a visa had been granted to them both.

    Mr Vo was informed at the airport that he did not have a visa and was not permitted to travel to Australia. Since this time he and his mother have been living separately while this appeal has been in process.

    Since the arrival of the primary applicant in Australia at the end of 2015 she has continued to send money to her son and a copy of the most recent funds transfer is annexed.

    Once the visa applicant, Dang Hai Vo, and his family realised that he had not been granted a visa they organised his on-going full time studies into an apprenticeship as a Mechanic …  

1. It is unclear to the Tribunal whether the visa applicant stopped studying at Melior Business School because it closed down or for some other reason. The Tribunal notes the documentary evidence that the school closed down in November 2012 yet both the visa applicant and Ms Nguyen gave oral evidence at the hearing that they had moved away from Ho Chi Minh City (which is where they claim to have lived when the visa applicant was studying at Melior) in early 2012 (according to Ms Nguyen) or the mid-part of 2012 (according to the visa applicant)—not in late 2012. Further, the translation of the lease agreement that was provided evidences the house in Cao Lanh City as being leased from 1 July 2012 to 1 July 2016 ‘[f]or child’s stay during his study away from home’. 

2. Notwithstanding this uncertainty, having considered all the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs for food, clothing and shelter for a substantial period immediately before applying for the visa and at the time of application on 30 June 2013.

3. The Tribunal makes these findings despite noting that the corroborating documentary evidence for these periods is limited. The Tribunal notes Ms Nguyen’s evidence in her statutory declaration of 13 May 2015 that she, like most people in Vietnam, had used cash for expenses rather than formal banking and that is why she could not provide evidence of the type requested by the Department. The Tribunal notes the Department’s concerns about the lack of corroborating documentation. It is indeed regrettable that more fulsome records were not kept from this early period, particularly noting that the parties’ first visa application had been refused. However, the Tribunal considers that sufficient documentary evidence has been provided in this case to corroborate the parties’ consistent claims that the visa applicant had been a full time student at both the time of application and a substantial period before that time. The Tribunal accepts Ms Nguyen’s evidence that she had mainly used cash for expenses and had only sought to retain copies of receipts for particularly costly expenses such as tuition fees at the Melior Business School. Unlike the delegate, the Tribunal gives weight to the lease agreement, mentioned above, as evidence of payments made by Ms Nguyen on her son’s behalf. (The delegate gave this evidence no weight because of the discrepancy in information about whether Ms Nguyen and the visa applicant had lived together or apart. This issue is addressed later in this decision).

4. The Tribunal is also satisfied that there is sufficient documentary evidence before it to corroborate the visa applicant’s claims that, for most of the time in the years following his lodgement of the application for the visa, he has continued to be a full time student: first by studying for his Year 12 and subsequently by studying the vocational training course in automotive technology. The Tribunal notes that Ms Nguyen and the visa applicant have retained more extensive records for this latter period.

5. The evidence before the Tribunal is that the visa applicant studied at the Technical Vocational and Regular Education Center of Dong Thap Province from September 2012 until May 2015. The Tribunal notes that, in his Form 80 of 30 April 2015, the applicant was asked to give details of his ‘education history for the entire period since leaving (high) school’. Even though it seems that the applicant was studying at the Technical Vocational and Regular Education Center of Dong Thap Province at that time, he did not mention the institution or his studies there. It may be that the applicant considered that he need not mention the studies because they were high school level studies. 

6. The applicants submitted a translation of a document entitled ‘application for confirmation’, dated 20 July 2015, which appears to be the visa applicant’s written request to the Director of the Board of Regular Education and Vocational Center to confirm that he had enrolled to the 11th grade at the Center for the academic year 2012–2013 (Departmental file f.242). The accompanying copy of the original document shows that the statement was confirmed, signed and stamped by the Director of the Board.

7. It is unclear what, if any, study the visa applicant undertook in the academic year 2013–2014 as no documents have been provided for this period to support the parties’ claims that the visa applicant has always been a student. However, as was noted in both the primary decision and by the former Member at the hearing, it is not a mandatory requirement that the visa applicant be studying for the entire time. Rather, the test is whether he remained financially dependent upon his mother. While in another case, such a lack of information and documents for the period of a year may raise serious concerns, in this case the Tribunal is not so troubled given the totality of the other evidence before the Tribunal.

8. As noted earlier, a certificate issued by the Department of Education and Training of Dong Thap Province in respect of the Technical Vocational and Regular Education Center of Dong Thap Province certifies that, in the academic year 2014–15, the visa applicant was a year 12 student of that educational center. While the certificate was issued with a date in 2015, the day and month were not given in the translation.

9. At the hearing, Ms Nguyen told the Tribunal that she had not retained receipts for the tuition fees paid for this centre because the amounts were insignificant. However, the Department’s file and Tribunal’s file contain a translation of one such receipt, dated 6 May 2015, for school fees paid in cash by the visa applicant (Departmental file f.238; Tribunal file f.88).

10. At the hearing, both the representative and the review applicant told the Tribunal that the visa applicant finished Year 12 in May 2015. However, according to the visa applicant’s own oral evidence, he did not successfully complete Year 12.

11. Ms Nguyen told the Tribunal that the visa applicant had been preparing for his Year 12 exams when they were informed about the progress of the application for the visas and that then he prepared to leave Vietnam for Australia. The Department’s file contains letters, dated 16 March 2015, from the Department to the then migration agent in relation to outstanding requirements that needed to be met, including the required assurance of support. It may be that the visa applicant stopped studying for his Year 12 at around the time these letters were received and accordingly he did not pass his Year 12.

12. According to the review applicant’s oral evidence at the hearing, the visa applicant had to wait until 2016 for the mechanic apprentice course to start. She told the Tribunal that he did not study or do anything else while he waited for the course to start. Although this seems a long period of time for a person to not work or study, there is no evidence before the Tribunal to cause it to question the truthfulness of this evidence. In this regard, the Tribunal also notes Ms Nguyen’s oral evidence. She told the Tribunal that the visa applicant had stopped preparing for exams when they obtained news about the visa application. She explained that they had only found out in November 2015, when they were at the airport, that the visa applicant had not been granted a visa. She said that he was upset and stressed by this news and that he stayed at the house for a while before looking for a new school that would offer him a suitable course, and that he then started the course as a motor car mechanic tuner.

13. The Tribunal notes that bank slips were provided with various dates in 2015, 2016 and 2017 evidencing that, in this latter period, Ms Nguyen had continuously deposited funds into the visa applicant’s account to support his living expenses. Documentary evidence was also provided that evidences that, after arriving in Australia, she has continued to remit funds to the visa applicant. Further, the lessor of the property where the visa applicant has been living also provided written evidence confirming that Ms Nguyen had been paying the rent.

14. There is also documentary evidence before the Tribunal to corroborate the claims that the visa applicant continues to study classes with respect to automotive technology at the Vietnamese-Soviet Electrical and Mechanical College; continues to live in Dong Thap Province and continues to be wholly or substantially reliant on his mother for financial support. For example, the Tribunal notes that the applicants submitted a copy of a transcript of results dated 4 June 2018 in respect of the visa applicant’s participation in the automotive technology vocational training course as well as bank deposits from Ms Nguyen to the visa applicant in 2018.

15. The Tribunal notes the delegate’s concern about conflicting information about whether, at the time of application and for a substantial period immediately before that time, Ms Nguyen and the visa applicant had lived together or not.

16. At the hearing, the review applicant, the visa applicant and Ms Nguyen gave consistent oral evidence that, between 2008 and 2015 (when Mrs Nguyen had left Vietnam for Australia), the visa applicant and Ms Nguyen had lived together.

17. From the evidence before the Tribunal, it appears that the family’s residence is in Tan Hong District, Dong Thap and that Ms Nguyen and the visa applicant retained this address as their official residential address even though, in fact, they sometimes lived at different addresses.

18. The review applicant gave oral evidence that, when the visa applicant was studying at the Melior Business School, the visa applicant and their mother had lived together in an apartment in Ho Chi Minh City. Similarly, Ms Nguyen told the Tribunal that, from 2008 to the beginning of 2012, she and the visa applicant had lived together in a rented property in Ho Chi Minh City. Ms Nguyen gave oral evidence that she had paid the rent and that her son had not worked at all as he had been a full time student. There is some, albeit limited, documentary evidence to corroborate this claim. For example, the Tribunal notes the letter of confirmation from the Melior Business School of 26 October 2011 which is addressed to the visa applicant at an address in Ho Chi Minh City.

19. Ms Nguyen told the Tribunal that she and the visa applicant left Ho Chi Minh City at the beginning of 2012 to return to live in the countryside and that then the visa applicant commenced studying Year 11 and then Year 12 at Cao Lanh City, Dong Thap Province. Similarly, the review applicant told the Tribunal that, before her mother had come to Australia, her mother and brother had rented a house together and that this is the house where her brother continues to live. The Tribunal takes this to be a reference to the property in Cao Lanh City. The review applicant told the Tribunal that her mother continues to pay the rent for this property. The Tribunal notes the earlier mentioned lease agreement dated 1 July 2012 and receipts provided in respect of rent paid in 2014, 2015 and 2016. 

20. When asked, at the hearing, to comment on the delegate’s concern about the different addresses given in the household registers in Vietnam, Ms Nguyen explained that the household registration was at the family house in Tan Hong District, Dong Thap but that this was too far away from Ho Chi Minh City where the visa applicant had studied from 2008. She explained that when they had returned to Dong Thap Province from Ho Chi Minh City, that Tan Hong was still a bit too far away from Cao Lanh and so she had rented a property in Cao Lanh for the visa applicant’s convenience. She explained that both Tan Hong and Cao Lanh were in Dong Thap Province.

21. When the Tribunal asked Ms Nguyen why the visa applicant’s marital status certificate of March 2015 indicated that he was living in Cao Lanh City and that at that time her address was listed as being in Tan Hong District, she explained that the Vietnamese law did not require him to go back to Tan Hong, where his household registration was held, to complete his registration for the marital status certificate and that he was permitted to do it at Cao Lanh, where he was living.

22. The Tribunal accepts the explanations offered for the discrepancies in the documents pertaining to the Ms Nguyen’s and the visa applicant’s residential addresses in the substantial period prior to the lodgement of the visa application, at the time of the visa application and the years following.

    CONCLUSION

23. Given these findings, the visa applicant meets the requirements of r.1.12 at the time of application and at the time of decision. Therefore, for the reasons given, he meets cl.143.311 at the time of application and, at the time of this decision, he continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 143 visa and thus meets cl.143.321.

24. 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 143 visa.  

    DECISION

25. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·cl.143.311 of Schedule 2 to the Regulations; and

    ·cl.143.321 of Schedule 2 to the Regulations

    Justine Clarke
    Member

    
    

    ATTACHMENT

    Extracts from Schedule 2 to the Migration Regulations 1994

    Clause 143.311

    Either:

    (a)  the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 143.21; or

    (b)  each of the following applies:

    (i)the applicant is a member of the family unit of a person (the other applicant) who:

    (A)  has applied for a Contributory Parent (Migrant) (Class CA) visa; and

    (B)  was in Australia at the time of application; and

    (C) on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 143.21;

    (ii)the other applicant is the holder of:

    (A)  a Subclass 173 (Contributory Parent (Temporary)) visa; or

    (B)  a substituted Subclass 600 visa;

    (iii)the Minister has not decided to grant or refuse to grant the visa to the other applicant;

    (iv)the applicant was in Australia at the time at which the applicant made the application for the Contributory Parent (Migrant) (Class CA) visa.

    Clause 143.321

    The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 143 visa.

    Extracts from the Migration Regulations 1994

    1.05ADependent

    (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.

    1.12Member of the family unit

    Scope

    (1)This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person:

    (a)is a spouse or de facto partner of the family head; or

    (b)is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)is a dependent child of a person who meets the conditions in paragraph (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    (4) A person is a member of the family unit of another person (the family head) if the person is:

    (a)a spouse or de facto partner of the family head; or

    (b)a dependent child of:

    (i)the family head; or

    (ii)a spouse or de facto partner of the family head; or

    (c)a dependent child of a dependent child of:

    (i)the family head; or

    (ii)a spouse or de facto partner of the family head; or

    (d)a relative, of the family head or of a spouse or de facto partner 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 dependent on the family head.