1502683 (Migration)

[2016] AATA 3951

1502683 (Migration) [2016] AATA 3951 (1 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr WEIPING ZHANG

VISA APPLICANT:  Miss JIANXIN LIU

CASE NUMBER:  1502683

DIBP REFERENCE(S):  OSF2014/023480

MEMBER:Chantal Bostock

DATE:1 June 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 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 01 June 2016 at 10:11am

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 31 December 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 April 2014 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The review applicant appeared before the Tribunal on 22 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife (the primary visa applicant) and the secondary visa applicant, who was overseas.

4. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. By way of background, the applicant sponsored his wife, the primary visa applicant and her daughter, the secondary visa applicant, applied for a partner (subclass 309) visa. The primary visa applicant was granted a visa but Ms Liu was refused on the basis that she was not a member of her mother’s family unit, in accordance with r 1.12. Following interviews with Ms Liu and her biological father, the delegate found that she was substantially financially reliant on her father to meet her basic needs for food, shelter and clothing.  

7. The applicant gave evidence through an accredited interpreter. He started living with his wife in 2011 in a unit in Hurstville. The applicant paid the rent, which was $300 per week. He works as a barbecue chef in a restaurant earning initially $1050 but now $1080 per week. At that time his wife was working as a part-time cleaner, earning $300-$400 per week. When she could, his wife would pay for groceries. His wife sent her daughter on average $1000AUD every 2 to 3 months, which she continues to do. Her daughter then paid for tuition, food and clothing. When asked how his wife could afford to send money to her daughter, the applicant stated that it was very easy: because he paid for most things, she could save money. His wife transferred the money to her daughter’s aunt’s account.

8. The applicant’s stepdaughter lives in her father’s house, where she lives with her father and her aunt. As far as he knows, she has lived there from childhood. The grandfather has since died and the applicant is not sure who inherited the house.

9. Last year, his stepdaughter began English-language classes at Qiao Jung Electronic University in Guangzhou city. Prior to this course, she was studying hotel management. His wife pays her tuition fees. His stepdaughter has never had a job. She received little money from her father. As of 2014, her father, a tourist bus driver, was unable to give her money because of his low income. His stepdaughter’s income comes from his wife. He said his stepdaughter sometimes eats at home with the family or sometimes eats noodles. His wife buys his stepdaughter’s clothes.

10. The parties moved into another unit in September 2014. The applicant continues to pay rent. His wife currently works in the seafood restaurant where he works and earns $300 - $400 per week. She mainly uses her income for her daughter.

11. When his wife went back to China in 2014 to lodge the visa application, the applicant gave her $5000 to support herself. She lived with the applicant’s father, who provided everything, while she awaited the outcome of the visa application.

12. The primary visa applicant gave evidence through an accredited interpreter. She came to Australia in 2009 bringing with her $10,000 in savings. Not long after her arrival in Australia, she met the applicant. They started a relationship and moved in together in September 2012. When she moved into her husband’s unit, she was working as a part-time cleaner earning $300 per week. Her husband paid the rent and she bought food. She sent about $1000-$2000 every few months to her daughter. She transferred the money to her cousin’s account. Her cousin then gave money to her daughter, who was 14 years old at the time. She would never have given the money to her ex-husband.

13. When she travelled back to China in 2014, she set up a bank account for her daughter, where she now deposits money directly. She continues to send about ¥1000 per month for her daughter’s living expenses, including meals, tuition and clothes. Her daughter does not waste money. Her daughter is currently studying business English. She has lived with her father, since childhood. The house was owned by her daughter’s grandfather who died before the primary visa applicant arrived in Australia. The house is owned by her ex-husband and his three sisters. There was no will following the grandfather’s death but everyone can live in the house. Her daughter has no other source of income. She does not know whether her daughter receives money from her ex-husband.

14. The secondary visa applicant gave evidence through an accredited interpreter. She has lived in her father’s home since birth. Her grandfather died in 2008 and her aunt owns the house. She is currently studying English full-time. Previously, she studied hotel management. She has never had a part-time job. Her father used to give her ¥600 but stopped when her mother returned to China in early 2014. Her mother sent her on average ¥1000 per month from Australia. Her mother would send the money to her aunt who would give her some money every month. After her mother returned to China, the money was deposited directly into her bank card. The amount of money deposited by her mother depends on her mother’s mood. On average it is about ¥6000-¥8000 approximately every 3 months. She spends the money on meals and clothing. The secondary visa applicant explained that she does not eat dinner with her family members as they are normally not home and are at work or shopping. She tends to eat at university or buys takeaway food for herself.

15. The Tribunal granted the applicant time in which to provide further bank statements and the certificate of title in relation to the grandfather’s house in China. Following the hearing, the applicant provided the Tribunal with the following documents: certified translation of the secondary visa applicant’s property title deed; evidence of funds transfers of amounts of $1300, $1000 and $3000 AUD from the primary visa applicant to the secondary visa applicant in 2015 and 2016 and translation of the secondary visa applicant’s bank statements.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

17. A criterion of clause 309.311 provides that the secondary visa applicants must be a member of the family unit, and to have made a combined application, with a person who satisfies the primary criteria in Subdivision 309.21.

18. The secondary applicant is the daughter of the primary visa applicant, Ms Xiujian Zhang who is the person who satisfied the primary criteria and was granted a subclass 309 visa on 31 December 2014. A copy of the secondary visa applicant’s birth certificate appears on the Department’s file. Her details were included on her mother’s application and their applications were made at the same time and place. The Tribunal finds that the secondary applicant made a combined application with her mother.   

19. The issue in this case is whether the secondary visa applicant is a member of the primary visa applicant’s family unit.

20. ‘Member of a family unit’ is relevantly defined at r. 1.12(1)(b), which provides:

    Reg 1.12     Member of the family unit

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to

    subregulations (2), (2A), (6) and (7),  a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

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

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

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

    (e) 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.

21. The term ‘dependent child’ has the meaning given in r. 1.03 and relevantly includes the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married) who has turned 18 and is dependent on that person or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

22. As noted earlier, based on the material before it, the Tribunal finds that the secondary visa applicant is the child of the primary visa applicant and that she has turned 18. There is no evidence that she is incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal must therefore consider dependency in Regulation 1.05A.

23. Regulation 1.05A(1)  defines dependency as follows:

    (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.

24. Following the Full Federal Court decision of Huynh v MIMIA (2006) 152 FCR 576 the proper construction of ‘dependent’ under the current definition in r.1.05A does not carry any implication of the notion of necessity or lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.

25. The Tribunal notes at the outset that it accepted the evidence of the review applicant and the primary and secondary visa applicants because their evidence was consistent not only with one another but the material contained on the Department and Tribunal files. In light of the material before it, including the oral evidence given at the hearing and the evidence of funds transfers submitted to the Tribunal, it makes the findings that follow. The Tribunal finds that the primary visa applicant began work as a cleaner in Sydney in 2011 and sent the secondary visa applicant on average $1000-$2000AUD every few months, which was used to pay for her food and clothing. The Tribunal accepts that the primary visa applicant could afford to send her the money because the review applicant was paying for most things, including their rent, which enabled her to save. It further finds that the primary visa applicant continued to send the secondary visa applicant funds, on average 6000-8000RMB per month, to pay for her food and clothing. It accepts the oral evidence of the secondary visa applicant that she eats on campus or buys herself takeaway food.

26. The Tribunal further finds that the secondary visa applicant has lived with her father and his family since birth. It accepts the evidence before it, including the certificate of title submitted to the Tribunal, that the house was owned by the secondary visa applicant’s grandfather, who died in 2008. The Tribunal also accepts the evidence of the secondary visa applicant, based on her knowledge of current circumstances, that the house is presently owned by her aunt. The Tribunal accepts that the secondary visa applicant has never had a job. The Tribunal further accepts that the father of the secondary visa applicant used to give her 600RMB (app $126AUD) but he stopped paying her this amount in 2014, when her mother returned to China in 2014 to lodge the visa application.

27. The Tribunal finds that the secondary visa applicant was substantially reliant on the primary visa applicant for financial support to meet her basic needs for food and clothing at the time of application and continues to be substantially reliant on her at the time of decision.  While finding that the secondary visa applicant was reliant on her grandfather and subsequently her aunt for shelter, the Tribunal further finds that the secondary visa applicant’s reliance on the primary visa applicant was and is greater than any reliance by the secondary visa applicant on any other person or source of support to meet the secondary visa applicant’s basic needs for food and clothing at the time of application and time of decision. It further finds that the secondary visa applicant was substantially reliant on the primary visa applicant to meet her basic needs for food and clothing for a substantial period before lodgment of the application. The Tribunal is satisfied that the secondary visa applicant meets cl 309.311 and cl 309.321.

28. 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 309 visa.

    DECISION

29. 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 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations.

    Chantal Bostock
    Member