1932917 (Migration) - [2020] AATA 5477

1932917 (Migration) [2020] AATA 5477 (1 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932917

MEMBER:Justin Meyer
DATE:1 October 2020
PLACE OF DECISION: Melbourne
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 1 October 2020 at 3:10pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – wholly or significantly financially reliant upon the primary applicant – money transfers – secondary applicant is deaf – family financial arrangements – family head – usually resident in the same household – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cls 309.221, 309.311, 309.321
CASES
Fusi v MIAC [2012] FMCA 1037
Huang v MIMA [2007] FMCA 720
Huynh v MIMA [2006] FCAFC 122
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 November 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 23 June 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the secondary visa applicant (“the secondary applicant”) did not satisfy cl.309.311 because they were not satisfied that the secondary applicant is wholly or significantly financially reliant upon the primary applicant. In cumulative consideration of the above information, he was not satisfied she is a ‘member of the family unit’ of the primary applicant and does not satisfy the criteria set out in sub regulation 309.311.
The review applicant appeared before the Tribunal on 23 September 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video using Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1932917 (Migration)

Details

AGLC: 1932917 (Migration) [2020] AATA 5477
Case: [2020] AATA 5477
Decision Date: 1 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by a secondary applicant for a Partner (Provisional) (Class UF) visa, Subclass 309, against a decision made by the delegate. The core dispute revolved around whether the secondary applicant, who was the sister of the primary applicant and sponsor, met the definition of a "member of the family unit" as required by the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the secondary applicant was "dependent" on the primary applicant, who was the head of the household.

The legal issues before the Tribunal were whether the secondary applicant satisfied the criteria for being a member of the family unit under clause 309.311 and continued to be so under clause 309.321 of Schedule 2 to the Regulations. This required an assessment of whether the secondary applicant met the definition of "dependent" as outlined in regulation 1.05A, which includes being wholly or substantially reliant on the other person for financial support for basic needs, and whether this reliance was greater than any other source of support. The Tribunal also considered the definition of "member of the family unit" in regulation 1.12, which, for a relative, requires the person to not have a spouse or de facto partner, be usually resident in the family head's household, and be dependent on the family head.

The Tribunal reasoned that the secondary applicant, being the sister of the primary applicant and sponsor, was a relative. Evidence indicated she resided with the primary applicant, who was the head of the household. The delegate's decision had been based on a finding that the secondary applicant had not demonstrated sufficient financial reliance on the primary applicant, particularly given the primary applicant's own unemployment and reliance on the sponsor. However, the Tribunal found that the delegate had not adequately considered the specific circumstances, including the secondary applicant's deafness and the family's financial arrangements, which suggested a greater degree of dependence than initially assessed. Consequently, the Tribunal concluded that the secondary applicant did satisfy the requirements of clauses 309.311 and 309.321.

Accordingly, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The Tribunal directed that the secondary visa applicant be considered to meet the criteria for a Subclass 309 (Partner (Provisional)) visa under cl.309.311 and cl.309.321 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE As it is apparent from identification documents and other evidence that the secondary applicant is the sister of the primary applicant and sponsor and was normally resident in the primary applicant’s household of which is she is head, the issue in the present case is whether the secondary applicant was and is dependent on the family head as defined in r.1.05A. Clause 309.311 requires a secondary applicant to be a member of the family unit of the primary applicant at the time of application. Clause 309.321 requires a secondary applicant to continue to be a member of the family unit at the time of decision. Regulation 1.12(1) defines ‘member of the family unit’ and r.1.05A(1) defines ‘dependent’. In assessing whether the secondary applicant meets the definition of a member of the family unit of the primary applicant as required in clause 309.311, the secondary applicant must be 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 The delegate noted that:·The secondary applicant is claimed to be sponsor’s sister. It is therefore acknowledged that the claimed familial relationships fall under the definition of relative as set out in the regulation 1.12(1)(e). ·It is further claimed that the secondary applicant lives with and is dependent on the primary applicant under the meaning the Regulations.·The secondary applicant declared to never have been married or been in a de facto relationship and that her dependence of the secondary applicant on the primary applicant has been in existence for a substantial period immediately before the lodgement of the application. ·The primary applicant had declared on departmental forms for this application that she has never been employed. It is further consistently claimed that the primary applicant is also financially reliant on the sponsor for all of her and the secondary applicants’ daily needs. ·A telephone interview was conducted with the primary applicant on 14 October 2019 to obtain information about the circumstances of the applicants. During the telephone interview, the primary applicant advised that she is only engaged in household duties and also does some tailoring for her children and sometimes she receives orders from other people and charges 400 to 500 Pakistani Rupees per dress. The primary applicant further informed that whatever money she earns from the tailoring is spent on buying shoes for herself and her children. When the primary applicant was asked what other source of income she has, she informed that the sponsor sends regular remittances to support the family. ·The primary applicant was counselled at the time of interview that based on the information provided on this application; the secondary applicant does not meet the requirements, as she has not demonstrated to be dependent on her. The primary applicant advised that the secondary applicant is dependent on her and has no one in the family. ·Based on the information provided by the primary applicant, the delegate was not satisfied that the secondary applicant is wholly or significantly financially reliant upon the primary applicant. The secondary applicant has declared that she resides with the primary applicant and is dependent on her, despite the fact that the primary applicant is unemployed and fully dependent on the sponsor herself.

Decision

Reasons for decision

Accordingly, the secondary applicant satisfies the requirements of cl.309.311 and cl. 309.221.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the secondary visa applicant meets 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 RegulationsJustin MeyerMemberATTACHMENT - Extract from Migration Regulations 1994Reg 1.05A Dependent1.05A (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.Reg 1.12 Member of the family unit1.12 (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.

Ratio Decidendi

Legal Principle Established

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