1723963 (Migration)

[2019] AATA 6939

1723963 (Migration) [2019] AATA 6939 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723963

MEMBER:Hugh Sanderson

DATE:11 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that both the first named visa applicant and the second named visa applicant meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations; and

·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 11 November 2019 at 2:17pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional) – member of family unit of primary visa applicant – reliant on mother for financial support to meet basic needs – food, clothing and shelter – lack of evidence applicant’s income sufficient to meet basic needs – time of application criteria – credibility issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cls 309.311, 309.321

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 21 September 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The mother of the visa applicants applied for the visa on 8 June 2016 on the basis of her relationship with their 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 delegate refused to grant the visa on the basis that both visa applicants did not satisfy cl.309.311 and cl.309.321 because the delegate was not satisfied that the visa applicants were dependent children of their mother as defined in r.1.03 and therefore were not a member of the family unit of a person who meets the primary criteria.

   Background

4. The visa applicants are the children of [Ms A] who applied for a Partner visa on the basis of her relationship with the review applicant. Ms [A] married the review applicant [in] February 2016 and applied for the visa on 18 June 2016. Both visa applicants had at that time already turned 18 years of age.

5. After assessing the application, the Department was satisfied that Ms [A] was the spouse of the review applicant as defined in s.5F of the Act and granted her a Subclass 309 Partner visa.

6. When assessing the application of Ms [A]’s daughter, [Ms B], the delegate noted the following:

   ·     [Ms B] had claimed she was studying a four-year course at [Named] University which commenced in [a certain year];

   ·     The certificate dated 16 March 2017 from the  [Vocational] School stated she was studying at the school in September 2016 majoring in [Subject 1];

   ·     A statement from her mother claimed that she was providing financial support to her by way of cash and tuition fees;

   ·     When interviewed, [Ms B] said she had graduated from  [University] in June 2016 and from April to July 2016 had been working as an [Occupation 1] at a [company] as part of the course receiving [a sum of money] per month;

   ·     [Ms B] claimed she stopped working because she did not like the work and was instead interested in [Subject 1];

   ·     A check of [Ms B]’s phone indicated that she was working in August 2016, which she claimed was only part-time work she had at the time;

   ·     [Ms B] was not able to provide details of the study she was claiming to participate in at [Vocational School] since September 2016;

   ·     The [Education] Bureau advised the Department that [the] Vocational School had been suspended from recruiting students [as] the school had failed to meet certain requirements;

   ·     Ms [C], the principal of [the] Vocational School, confirmed [Ms B] was enrolled as a student but was unable to provide any details of any course of study she had undertaken; and

   ·     Ms [C] stated that many students only enrol in the school for visa purposes and that they would often not attend classes thinking the Department would not check.

7. Taking these matters into account, the delegate found that [Ms B] had been employed and was financially capable of supporting herself. The delegate was not satisfied that the claims made by [Ms B] that she had been studying were genuine and called into question the credibility of her dependency upon her mother. The delegate was not satisfied [Ms B] wholly or substantially relied upon her mother to meet her basic needs at the time of the application and at the time of the decision. The delegate was not satisfied [Ms B] met the definition of being dependent on her mother in r.1.05A(1)(a)(i) and therefore was not a dependent child as defined in r.1.03(b) or a member of the family unit of her mother as defined in r.1.12. Accordingly, the delegate was not satisfied [Ms B] met the time of application criteria in cl.309.311 and the time of decision criteria in cl.309.321 and refused the application.

8. When assessing the application of Ms [A]’s son, [Mr D], the delegate noted the following:

   ·     A certificate issued by [the] Vocational School dated 9 March 2016 stated [Mr D] had been studying at the school since [month] [year], majoring in [Subject 2];

   ·     [Mr D]’s mother claimed that she was paying cash to support [Mr D] and also paying the tuition fees;

   ·     When asked by the Department, [Mr D] was unable to state what he was studying at [Vocational] School;

   ·     The [Education] Bureau advised the Department that [the] Vocational School had been suspended from recruiting students in [as] the school had failed to meet certain requirements;

   ·     Ms [C], the principal of [the] Vocational School, confirmed [Mr D] was enrolled as a student but was unable to provide any details of any course of study he had undertaken; and

   ·     Ms [C] stated that many students only enrol in the school for visa purposes and that they would often not attend classes thinking the Department would not check.

9. The delegate was not satisfied that the claims made by [Mr D] that he had been studying were genuine and called into question the credibility of his dependency upon his mother. The delegate was not satisfied [Mr D] wholly or substantially relied upon his mother to meet his basic needs at the time of the application and at the time of the decision. The delegate was not satisfied [Mr D] met the definition of being dependent on his mother in r.1.05A(1)(a)(i) and therefore was not a dependent child as defined in r.1.03(b) or a member of the family unit of his mother as defined in r.1.12. Accordingly, the delegate was not satisfied [Mr D] met the time of application criteria in cl.309.311 and the time of decision criteria in cl.309.321 and refused the application.

   Information to the Tribunal

10. Further documents were provided to the Tribunal including the following:

    ·     Record of courses studied by [Ms B] at the [School] dated 21 January 2019;

    ·     Record of courses studied by [Mr D] at the [School] dated 21 January 2019;

    ·     Receipt from [Company 1] showing money sent by the visa applicants’ mother to China for the period from [March] 2012 to [August] 2019;

    ·     Certificate stating [Ms B] has been attending the [Named] Training Centre [Subject 3] training course from February 2019 with the course due to be completed in December 2019; and

    ·     Certificate stating [Mr D] has been attending the [Named] Training Centre [Subject 3] training course from February 2019 with the course due to be completed in December 2019.

11. The review applicant appeared before the Tribunal on 21 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants’ mother and [Ms B].

12. The review applicant said that he was not working and received an age pension. He provided details of his wife’s employment. He said that she had been sending money to her children since she arrived in Australia from China in 2017. He said that his wife arranged to send the money to her daughter for her and her brother’s expenses. He said that her former husband still lives in China but he does not know anything about him. He did not believe that any members of his wife’s family were Christians. He said that he had stayed with her daughter [in] Australia, but had never seen her attending church. He said that his wife had no problems from the authorities when she was living in China and did not believe any of her family members had any problems with the authorities while living there.

13. The review applicant provided details of his activities when he went to China. He said the visa applicants would stay over on the weekends as at other times they were attending school. He was not able to provide details of what they were studying, but believed they were currently studying [Subject 3].

14. Ms [A] said when she returned to China in 2014 she lived with her husband for a short time before they separated. She said after that she moved to live in her mother’s home with her children. She said that her former husband was violent and was always drinking and did not provide care for the children. She said that he did not have any problems with the authorities because he was only violent to her and no one else. She said there was no reason why the authorities would have any concern about her former husband. She was not sure what contact, if any, her children have with their father. She said that her former husband was not a Christian. She confirmed that she did not have any problems with the Chinese authorities when she returned to China in 2014.

15. Ms [A] claimed both the children in China were studying. She said that they had always been students and had not worked full time. She said that she had been sending money to her daughter who used that money to support herself and her brother. She provided details of the courses they have undertaken. She said that her daughter was an [Occupation 1] for about six months, however, claimed she was not paid for that [work].

16. [Ms B] gave evidence that she and her brother were currently studying [Subject 3]. She claimed that both she and her brother ended their studies at [the] School in [a certain year] and they were now studying [Subject 3]. She provided details of where they were living and the courses they had been studying. She said that her mother had been sending her money to be able to support herself and her brother.

17. [Ms B] stated that she only sometimes talks to her father. She said that he was now living in a rural area. She said her father had never been arrested by the authorities for any reason. She said that although she has an uncle whose wife is superstitious no one in their family follows any religion.

18. After the hearing, the review applicant provided the following documents to the Tribunal:

    ·     Certificates from the [Named] Training Centre dated 25 February 2019 and 19 September 2019 confirming both visa applicants were attending the centre full time studying [Subject 3];

    ·     Evidence of money being sent by the visa applicant’s mother to them in China through [Company 1];

    ·     IELTS Test Report Form for [Ms B] showing an overall bands score of 5.5 dated 29 October 2019; and

    ·     Statements from the review applicant and the visa applicants’ mother.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. To meet the time of application criteria in cl.309.311 the visa applicants must be a member of the family unit of a person who has applied for the visa. To meet the time of decision criteria in cl.309.321 the applicants must continue to be a member of the family unit of a person who satisfies the primary criteria. The relevant definitions of a ‘member of the family unit’, a ‘dependent child’, and ‘dependent’ are found in regulations 1.12, 1.03, and 1.05A and are attached to this decision. The issue in the present case is whether the visa applicants were, at the time of the application, and continue to be, at the time of this decision, the dependent children and members of the family unit of their mother who met the primary criteria for the grant of the Subclass 309 Partner visa.

21. Both visa applicants are the children of [Ms A] who applied for the Partner visa with the visa applicants as her dependants. Ms [A] has subsequently been granted the Subclass 309 Partner (Temporary) visa. At the time of the application, both visa applicants were over the age of 18. There is no information to indicate that at any time the visa applicants have been incapacitated for work due to the total or partial loss of their bodily or mental functions.

22. The primary concern of the Department when assessing the applications was that there were serious concerns about the credibility of the information provided by the visa applicants in support of the application. There were concerns about whether the visa applicants were attending [the] Vocational School or attending any course of study at the time of the application and at the time of the decision.

23. The Tribunal also has significant concerns as to the credibility of the visa applicants, their mother and other members of their family. It is noted the applicants’ mother applied for a Protection visa in Australia, however, upon her return to China appears to have had no difficulty from the authorities living there. Her third child, who remains living in Australia, is apparently applying for a Protection visa on the basis of her father being persecuted as a Christian. This is inconsistent to the information provided by the visa applicants and their mother at the hearing before the Tribunal. The genuineness of the claims made in that Protection visa application must be questionable.

24. Despite the concern as to the credibility of the visa applicants and their mother, there is evidence to support the claim that at the time of the application both visa applicants had been for a substantial period immediately before the application reliant upon their mother for financial support to meet their basic needs for food, clothing and shelter. Further, there is information to support the claim that the visa applicants remain substantially reliant upon their mother for financial support to meet their basic needs for food, clothing and shelter.

    Application of [Ms B]

25. In respect of the application of [Ms B], information indicated that she had been working as an [Occupation 1] from April to July 2016 and was also working in August 2016. It was claimed she was earning approximately [a sum of money] per month (approximately AU[amount]). There is little information which would indicate that any income [Ms B] was earning over this time was sufficient to meet her basic needs for food, clothing and shelter. As at the time of the application [Ms B]’s mother was living in China, it is not surprising that any financial support given to her by her mother was by way of cash payments.

26. The Tribunal has now been provided with [Ms B]’s bank statements. This supports the claim that while in Australia her mother was sending her money for her financial support, both before she departed Australia in August 2014 and after she returned to Australia holding the Subclass 309 Partner visa in September 2017. This supports the claim made by [Ms B]’s mother that she has been supporting her children both when she has been in Australia and when she has been in China.

27. The income disclosed by [Ms B] while working as an [Occupation 1] of about AU$[amount] per week would not be sufficient to meet basic needs of food, clothing and shelter. [Ms B] was living with her mother and grandmother at that time and all expenses for shelter were met by her mother. Although [Ms B] may have had some income, the Tribunal finds that at the time of the application and for a substantial period immediately before that time, [Ms B] was substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter. Further, the Tribunal is satisfied that although [Ms B] was able to meet some of her expenses, [Ms B]’s reliance upon her mother was greater than any reliance she had upon her own income to meet basic needs for food, clothing and shelter.

28. The Tribunal finds that at the time of the application [Ms B] was a member of the family unit of her mother, the primary visa applicant, as defined in r.1.12. Accordingly, the Tribunal finds [Ms B] meets the time of application criteria in cl.309.311.

29. At the time of this decision [Ms B] claims to be continuing her studies at [Named] Training Centre. She is studying [Subject 3]. She has provided certificates from the Training Centre confirming her enrolment and attendance at that course. She has provided an IELTS Test Report Form dated 29 October 2019 showing an overall score of 5.5. The details provided in her bank account indicate the only significant deposits are those that she has received from her mother. Although there are a number of deposits which are not explained, the Tribunal accepts that these deposits do not support a finding that [Ms B] is receiving an income from any other source from which she is more reliant than the money she is receiving from her mother.

30. Overall, the Tribunal is satisfied that at the time of this decision and for a substantial period immediately before, [Ms B] has been substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter. Further, the Tribunal is satisfied that [Ms B]’s reliance upon her mother is greater than any reliance she has upon any other source of income to meet her basic needs for food, clothing and shelter.

31. The Tribunal finds that at the time of this decision [Ms B] was a member of the family unit of her mother, the primary visa applicant, as defined in r.1.12. Accordingly, the Tribunal finds [Ms B] meets the time of application criteria in cl.309.321.

    Application of [Mr D]

32. [Mr D] has provided certificates to show that at the time of the application he was a student and at the time of the decision he remains a student. It is claimed that at the time of the application he was living with his sister and returning to his mother’s home each weekend and when not at school. It is claimed that he has not been in paid employment at any time.

33. The Tribunal takes into account the concerns the Department has about the credibility of the information provided by [Mr D] and his family. [Mr D] has provided documentation as to his studies and the marks he has achieved in those studies. The Tribunal notes when the applicant was interviewed by the Department he did not provide clear information. The Tribunal accepts that at that time [Mr D] was confused as to the questions being asked of him and was not able to provide clear answers. There is no information which would indicate that at any time [Mr D] has been in paid employment or that he has been able to rely on any other source of financial support apart from that coming from his mother.

34. Overall, the Tribunal is satisfied that at the time of the application and at the time of this decision and for a substantial period of time immediately before then [Mr D] has been and is substantially reliant upon his mother for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is satisfied that [Mr D]’s reliance upon his mother is greater than his reliance upon any other source of support for financial support to meet his basic needs for food, clothing and shelter.

1. For the above reasons, the Tribunal finds that at the time of the application and at the time of this decision [Mr D] meets the definition in r.1.12 of being a member of the family unit of his mother. Accordingly, the Tribunal finds the applicant meets the criteria in cl.309.311 and cl.309.321.

2. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

3. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that both the first named visa applicant and the second named visa applicant meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.311 of Schedule 2 to the Regulations; and

   ·cl.309.321 of Schedule 2 to the Regulations.

   Hugh Sanderson
   Member

   
   

   Annexure

   Regulation 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.

   (2)  A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

   (a)  a spouse or de facto partner of the applicant; or

   (b)  a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.

   Regulation 1.03 – Dependent child

   dependent child, of a person, 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.

   Regulation 1.05A - Dependent

   (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)  A person (the first person) is dependent on another person for the purposes of an application for: