1512181 (Migration)

[2016] AATA 4103

1512181 (Migration) [2016] AATA 4103 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KAI SHEN

CASE NUMBER:  1512181

DIBP REFERENCE(S):  BCC2014/494098

MEMBER:Glen Cranwell

DATE:12 July 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Class EB Business Innovation and Investment subclass 188 (Business Innovation) visa for reconsideration, with a direction that the applicant meets the following criterion for the visa:

·cl.188.311 of Schedule 2 to the Migration Regulations.

Statement made on 12 July 2016 at 2:01pm

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 28 August 2015 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 February 2014. The delegate refused to grant the visa on the basis that cl.188.311 was not met.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant’s mother, Ms Wu Jinglan, lodged an application for a Subclass 1888 visa on 19 February 2014.  The applicant was included as a member of her family unit.

6. Clause 188.311 provides:

   The applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).

7. Reg. 1.12 provides:

   1.12            For the definition of member of the family unitin 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 or  of the family head; or

   (b)      a dependent child of the family head or of a or  of the family head; or

   (c)      a dependent child of a dependent child of the family head or of a or  of the family head; or

   [(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]

   (e)      a relative of the family head or of a or  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 on the family head.

8. ‘Dependent child’ of a person is defined in r.1.03 of the Regulations and means:

   the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

   (a)has not turned 18; or

   (b)has turned 18 and:

   (i)is dependent on that person; or

   (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

9. ‘Dependent’ is defined in r.1.05A of the Regulations. Relevantly, it provides:

   1.05A(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.

   (2)…

10. The issue in the present case is whether the applicant is a member of Ms Wu’s family unit.  It is not in dispute that the applicant is over 18 years of age.  Therefore, he is required to be “dependent” on Ms Wu.

11. The applicant’s representative lodged submissions dated 2 May 2016 in the following terms:

    Our client has never stopped studying since he was turning 18 years old, and our client has never worked since he was turning 18 years. Our client's parents has been financially supporting his living expenses and tuition fees since he was turning 18 years old. We have attached all the money transfer evidence which the money was sent from our client's mother WU Jinglan from China to Australia to support our client's living expenses and Tuition Fees.

    Our client has never stopped studying since he was turning 18, and he has been always a full-time student studying vocational courses in Australia. His education history since he was turning 18 years old was listed as below:

    8 February 2016 till date, our client is enrolled in Advanced Diploma of Marketing at Australis Institute of Technology and Education, he is expected to complete the course in February 2017.

    From 13 July 2015 to 10 January 2016, our client was studying Advanced Diploma of business at Australis Institute of Technology and Education, he completed course in January 2016.

    From 24 November 2014 to 41 May 2015, our client was studying Diploma of Business course at Australis Institute of Technology and Education.

    From February 2014 to August 2014, he was studying Diploma of Business course at Skilled Services Australia, he did not complete all the units at the end of the course in August 2014.

    From July 2013 to November 2013, our client was studying intensive English course at Metro College of Technology.

    From December 2012 to April 2013, our client was studying Diploma of Management course at Australian College of Technology & Business, he did not complete the course at the end.

    From July 2012 to November 2012, our client was studying Diploma of Cookery at Holmes Institute, he withdrew from the course in November 2012.

    From July 2011 to June 2012, our clients was studying Diploma of hotel Management course at Queensland Institute of Technology, he withdrew from the course in June 2012.

    Our client has never been in any marriage relationship or De Facto relationship with any person, he also has never been engaged to anyone. It was because the incorrect information provided in our client's ex-girlfriend's 187 nomination application which caused the Department misunderstands our client's relationship status. We have provided statutory declarations from our client and also his ex-girlfriend to explain it. Also, the employer also submitted Form 1023 to correct the wrong information in regards to his employee's relationship status to the Department on 21 August 2015.

12. Based on these submissions and the attached evidence, the Tribunal accepts that the applicant has been wholly or substantially reliant on Ms Wu to meet his basic needs for food, clothing and shelter at the time of decision, and for a substantial period immediately before that time.

13. The delegate found that the applicant was in a de facto relationship with Xu Yimeng.  The basis of this was that he was listed as her de facto partner on a nomination application made by Anchor Bar. 

14. The Tribunal issued a summons to the Department requesting both the nomination application and the associated Subclass 187 visa application.  Although the nomination application does list the applicant as Ms Xu’s de facto partner, he is not mentioned on the Subclass 187 visa application. In answer to the question as to whether any migrating members are including in this application, Ms Xu stated “no”.  She also described her relationship status as “never married”.  A notification of incorrect answers form was subsequently lodged, removing the applicant from the nomination application.

15. The application has provided statutory declarations of himself and Ms Xu stating that they are boyfriend/girlfriend but are not in a de facto relationship.  Statutory declarations from 6 friends to this effect were also provided.

16. After careful consideration, the Tribunal places little weight on the inclusion of the applicant on the nomination application.  The nomination application was completed by Ms Xu’s employer, not Ms Xu.  The employer has notified the Department that he made a mistake.  Ms Xu has never claimed the applicant was her de facto partner in the visa application lodged by her.  There is ample sworn evidence to the effect that the applicant and Ms Xu are not de facto partners.  The Tribunal considers that the statement by Ms Xu’s employer, subsequently withdrawn, is an unreliable basis for reaching a conclusion to the contrary.  There is no other evidence to point to the applicant being in a de facto relationship with Ms Xu.

17. The applicant is therefore a dependent child of Ms Wu and meets regulation 1.12(1)(b) at the time of decision.  As the applicant meets regulation r.1.12, he is a member of Ms Wu’s family unit at the time of decision. He therefore meets cl.188.311.

    DECISION

18. The Tribunal remits the application for a Class EB Business Innovation and Investment subclass 188 (Business Innovation) visa for reconsideration, with a direction that the applicant meets the following criterion for the visa:

    ·            cl.188.311 of Schedule 2 to the Migration Regulations.

    Glen Cranwell
    Member