1420460 (Migration)

[2016] AATA 3080

1420460 (Migration) [2016] AATA 3080 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Peter Benjamin Pritchard

VISA APPLICANT:  Ms Maria Katrina Cyrille Santiago

CASE NUMBER:  1420460

DIBP REFERENCE(S):  OSF2013 042909

MEMBER:Wendy Banfield

DATE:15 January 2016

PLACE OF DECISION:  Sydney

DECISION: The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

· cl.309.311 of Schedule 2 to the Regulations

· cl.309.321 of Schedule 2 of the Regulations

Statement made on 15 January 2016 at 11:18am

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 on 15 October 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act

2. The primary applicant applied for the visa on 25 November 2013 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The secondary applicant, Ms Maria Katrina Cyrille Santiago, the daughter of the primary applicant, need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.31.

   Background

3. The review applicant, Mr Peter Pritchard is an Australian citizen currently aged 77. The visa applicant, Ms Maria Katrina Cyrille Santiago is the oldest daughter of the review applicant’s wife, Mrs Maria Luisa Santiago Pritchard. The visa applicant is 26 years old. The review applicant met his wife online and developed a relationship that led to marriage. Mrs Santiago Pritchard has four children that she was supporting alone. The review applicant commenced supporting the family financially prior to and after all of them, except the oldest daughter, were granted partner visas. Mr Pritchard is a retiree with adult children from a previous marriage.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.321 because she did not meet the legal requirements.

5. The review applicant appeared before the Tribunal on 11 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary visa applicant, Ms Maria Katrina Cyrille Santiago and the primary visa applicant, Mrs Maria Luisa Santiago Pritchard.

   Evidence of the Review Applicant

6. The review applicant Mr Peter Pritchard gave evidence that the visa applicant currently lives in accommodation that he and his wife, the visa applicant’s mother own in the Philippines. The property is subject to a mortgage of $175 per week that the review applicant pays and he also covers all other expenses, including utilities in relation to the property. As the visa applicant occupies the house, it cannot be rented out as was the plan when the family applied to migrate to Australia. According to the evidence, the visa applicant is not currently employed and therefore the review applicant provides her with money for her food and general expenses. He claims that these expenses amount to approximately $1,000 per month.

7. The review applicant said that prior to the family migrating to Australia; they had all lived in another area of the Philippines in rented accommodation that he also paid for. The visa applicant had never lived independently or been able to support herself financially. At the time the application was made on 25 November 2013, the visa applicant was not working but she commenced a traineeship in January 2014 that lasted approximately 12 months. The visa applicant was not offered further employment after her traineeship ended. The review applicant said the visa applicant had taken the employment despite the extremely low pay in order to assist him with the significant financial expenditure he has outlaid in visa fees and in supporting the family. According to the review applicant, the visa applicant had to pay a bond to the employer for the traineeship and had to pay for taxis home after work as she had to work late shifts in an unsafe neighbourhood.

8. The delegate found that at the time of decision, the visa applicant was undertaking her traineeship and was receiving PHP 192,593.44 per annum. The review applicant said the remuneration was in fact much less than that. This amounts to approximately A$5,840 per annum. On the review applicant’s evidence, he has been contributing close to A$12,000 per annum to cover the cost of the visa applicant’s accommodation, as well as utilities and living expenses. He claims that the visa applicant was at the time of application, and continues to be, “wholly or substantially reliant” on himself and his wife. He said the funding they provide outweighs any income she has ever received from other sources.

9. The review applicant provided a contract for the sale of the property that he and his wife now own and in which the visa applicant lives. The property was purchased in the joint names of the review applicant and his wife. Evidence was also provided that the review applicant and his wife took over the mortgage of the property and also pay associated condominium fees. This evidence demonstrates that the review applicant provides and pays for housing for the visa applicant while she remains in the Philippines on her own. The review applicant said he and his wife pay for accommodation and expenses for the visa applicant because they are concerned for her wellbeing since the rest of the immediate family are in Australia.

   Evidence of the primary applicant – Mrs Maria Luisa Santiago Pritchard

10. The primary applicant confirmed the evidence provided by the review applicant and said the visa applicant is not currently working. Her last employment was a traineeship that finished 12 months ago. She was paid a very small amount for the work and has always been reliant upon the family for support. It was claimed that the visa applicant had to pay a bond for her training and was not offered further employment when it ended. According to the primary applicant, she spent most of her small income on taxis home because she would finish late at night in an unsafe area. The primary applicant said she and her husband continue to provide for the visa applicant because she would not be able to support herself otherwise.

    Evidence of the visa applicant – Ms Maria Katrina Cyrille Santiago

11. The visa applicant explained that she had accepted a traineeship in January 2014, after the visa application had been made in order to assist the review applicant financially because of the costs he had incurred in the visa process. However, she was paid such a small wage it did not cover her own expenses. She continued to live with the family and be supported financially by them. The visa applicant said she also undertook training to assist her to find work in Australia. She had planned to study and work if she had been granted a visa along with the rest of the family.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the secondary applicant was a member of the family unit at the time the visa application was made and continued to be at the time of the decision.

14. To meet the requirements of cl.309.311, the secondary applicant must be a ‘member of the family unit’ as defined in. r.1.12(1)(b) which means a dependent child of the family head or of the spouse or de facto partner of the family head. The definition of a dependent child in r.1.03 includes a person who has turned 18 and is ‘dependent’ on the person or is incapacitated for work due to total or partial loss of bodily or mental functions. The definition of ‘dependent’ in r.1.05A requires the secondary applicant to have been for a substantial period immediately before the relevant time, wholly or substantially reliant on the other person for financial support to meet his basic needs for food, clothing and shelter; and that such reliance on the other person is greater than the reliance on any other person or source.

15. At the time of application, the secondary applicant had turned 18 and was ‘dependent’ on the review applicant, the spouse of the family head. This was because she was only able to obtain employment training or low paid work that did not cover her expenses. She did not earn enough to live independently of her immediate family.

16. The evidence provided by the review applicant regarding the residence he purchased that is now occupied by the visa applicant supports his claims as to the financial assistance he and his wife provide to her. Money transfer receipts and consistent evidence provided by the review applicant and the primary visa applicant, his wife, also supports his claims. Having had the benefit of hearing directly from the parties at the hearing, the Tribunal is satisfied that the claimed financial assistance is in fact provided to the visa applicant and that it exceeds any income she has received for periods of time during traineeships and short periods of work. It appears that when the review applicant’s wife was interviewed by the Department about her daughter’s income and the financial support she receives, the cost of her accommodation was not included which is a significant commitment, over and above any other income she had received in the past.

17. The Tribunal accepts the evidence of the review applicant as credible and supported by documentation as well as consistent testimony from the witnesses.

18. For the reasons above, the secondary applicant meets cl.309.311 because she was a member of the family unit of a person who satisfied the primary criteria in Subdivision 309.21. As required by cl.309.311, the secondary applicant made a combined application with a person who satisfies the primary criteria.

19. The Tribunal is satisfied that at the time of decision, the secondary applicant satisfies cl.309.321 as she continues to be a member of the family unit.

20. The visa applicant satisfies the criteria for the grant of the visa

    DECISION

21. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations

    Wendy Banfield
    Member