Le (Migration) [2021] AATA 388 (5 February 2021)

Last Updated: 5 March 2021

Le (Migration) [2021] AATA 388 (5 February 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Thi Bich Ngoc Le

VISA APPLICANT: Mr Ngoc Minh Le

CASE NUMBER: 2003071

HOME AFFAIRS REFERENCE(S): BCC2015/2501873

MEMBER: Margie Bourke

DATE: 5 February 2021

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.143.321 of Schedule 2 to the Regulations.

Statement made on 05 February 2021 at 2:29pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – member of family unit – secondary applicant to father’s primary visa application –receipts recording financial support in mother’s name – mother remaining in home country to care for her elderly father – parents’ marriage continuing – joint ownership of property – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12(1)(b), Schedule 2, cl 143.321

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 Home Affairs on 17 January 2020 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 27 August 2015. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.143.321 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicant met the secondary visa applicant criteria in cl.143.321 which required the visa applicant continue to be a member of the family unit of the primary visa applicant.
3. The tribunal had regard to the nature of the review and the circumstances of the applicants. The tribunal had regard to its objective to provide a mechanism for review that is fair, just, economical, informal and quick. The tribunal decided that it was appropriate to conduct the hearing in this matter by way of video link hearing.
4. The review applicant appeared before the tribunal on 21 January 2021 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant and his mother, Thi Kim Oanh Phan, and his father Mr Dinh Dinh Le, who attended by way of video. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the tribunal hearing.
6. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets the requirements of cl.143.321. Cl.143.321 is applicable to secondary visa applicants and is to be met at the time of decision. Cl.143.321 requires the visa 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. The visa applicant’s father (who was the primary visa applicant in the initial visa application) was granted the Subclass 143 visa on 17 November 2020. The only issue for the tribunal to determine is whether the visa applicant is a member of the family unit of the person who now holds a Subclass 143 visa within the meaning of r.1.12(1)(b).
8. The application for the visa was lodged on 27 August 2015. This is relevant because the definition for member of the family unit (regulation 1.12) was changed on 19 November 2016. For the purpose of this review the pre-19 November 2016 definition of member of the family unit applies.
9. Based on the visa applicant’s birth certificate, I am satisfied that he is the biological child of his father, Dinh Dinh Le, and his mother, Thi Kim Oanh Phan, who both gave evidence in the hearing. The visa applicant has an older sister who resides in Australia, and who is the review applicant in this matter. The consistent evidence before me is that the visa applicant’s parents are married but in the near future, the visa applicant’s father, Mr Le, chooses to move to Australia and Ms Phan chooses to stay in Vietnam to care for her elderly father.
10. I have considered the requirements that for the visa applicant to be a member of the family unit of the family head, the primary visa applicant in this matter (his father), he must meet the criteria of dependent child of the family head or his partner to satisfy r.1.12(1)(b). In the hearing the tribunal carefully assessed and analysed the evidence of all four participants in relation to whether the marriage between Mr Le and Ms Phan was continuing, in the circumstances where they had decided to reside in different countries in the foreseeable future. In addition to the oral evidence, I have considered the documents provided which included the Vietnamese household registration, and the joint ownership of property. My assessment of the oral evidence, documentary evidence and written submissions provided after the hearing is that the marriage is continuing and that the visa applicant’s parents continue in a supportive and genuine marriage. I accept that the visa applicant’s mother intends to join her husband and son in the future when she is no longer required to care for her father.
11. I am satisfied that the visa applicant is 27 years of age, is single, is a student, is not employed and has never been in full-time employment. I am satisfied that the visa applicant has always lived in the home owned by his parents, and has been provided for by his parents. In the Department decision record the delegate noted that the receipts provided recording the financial support provided to the visa applicant are in his mother’s name, and the delegate referred to her as the visa applicant’s non-migrating mother. As stated above I am satisfied that the fact the visa applicant’s mother is not applying for a visa at this time does not in these circumstances indicate that the visa applicant’s parents have separated.
12. I am satisfied that the visa applicant’s parents own the property in which they reside currently in Vietnam and rent out the ground floor of the building. I am satisfied that both of the visa applicant’s parents’ names are on the title of the property. I am satisfied that the visa applicant’s parents together provide, through the ownership of the home in which they live, his shelter and accommodation. I am satisfied that the visa applicant’s mother does not work, but will be able to rely on the rent income for some ongoing financial support after her husband departs Vietnam. I am satisfied that the visa applicant’s father has been employed as a carpenter all his life and has provided financially for the family. I am satisfied that at the time of this decision Mr Le has financially provided for the basic daily needs including food and clothing, and paid the utility bills, education expenses, transport costs, medicine costs and all household and other expenses for his wife and the visa applicant for the preceding years. I accept that Mr Le would give money to his wife for her to pay expenses including the visa applicant’s educational costs, grocery shopping and other assorted bills. I also accept the evidence of Mr Le that he intends to continue to support both his wife and his son after he migrates to Australia.
13. The purposes of assessing whether the visa applicant is a dependent child within the meaning of r.1.05A, I will consider the period of 12 months as a significant period. I am satisfied that the visa applicant is, and has been for a substantial period, namely 12 months, immediately before this time, wholly or substantially reliant on his father for financial support to meet his basic needs for food, clothing and shelter. Further I am satisfied that the visa applicant’s reliance on his father is greater than any reliance by the visa applicant on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter. Therefore I find the visa applicant is dependent upon the family head, his father, within the meaning of r.1.05A.
14. As I have found that the visa applicant is dependent on the family head within the meaning of r.1.05A, and is the biological child of the family head, it follows that I am satisfied the visa applicant is the dependent child of his father, the family head, and meets the requirements of dependent child for the purposes of r.1.12(1)(b). I am therefore satisfied that the visa applicant is a member of the family unit of his father, Mr Le, within the meaning of r.1.12(1)(b).
15. Accordingly I am satisfied that the visa 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. I am satisfied that the visa applicant meets the requirements of cl.143.321.
16. Given the findings above, the appropriate course is for the tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

DECISION

17. 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.143.321 of Schedule 2 to the Regulations.

Margie Bourke
Member