Benussi (Migration)

[2021] AATA 157

Benussi (Migration) [2021] AATA 157 (4 January 2021)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Nello Nicolo Benussi

VISA APPLICANT:  Miss Parichat Treerussameeporn

CASE NUMBER:  1825681

DIBP REFERENCE(S):

MEMBER:  Brendan Darcy

DATE OF DECISION:  4 January 2021

DATE CORRIGENDUM

SIGNED:  8 February 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.    The words ‘DATE OF DECISION: 4 December 2021’ at the cover page should be replaced with ‘DATE OF DECISION: 4 January 2021’.

Brendan Darcy Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Nello Nicolo Benussi

VISA APPLICANT:  Miss Parichat Treerussameeporn

CASE NUMBER:  1825681

DIBP REFERENCE(S):

MEMBER:  Brendan Darcy

DATE:  4 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter to the Minister for further consideration as the applicant met clauses

445.211 and 445.222 of Schedule 2 of the Regulations.

Statement made on 4 January at 9:19am

CATCHWORDS
MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – applicant step-child of sponsor – dependency – financial support during full-time study – remittances from sponsor’s wife/applicant’s mother greater than applicant’s earnings from part-time work – applicant caring for ailing grandmother – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03(b)(i), 1.05A(1)(i), (ii), Schedule 2, cls 445.211, 445.222

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 23 August 2018 to refuse to grant the applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

1. The visa applicant applied for the visa on 19 September 2017. The delegate refused to grant the visa on the basis that the visa applicant did not meet regulation 445.222: the visa applicant continues to be a dependent child of the visa-holding parent.

1. Via an internet enabled audio-visual platform, the review applicant appeared before the Tribunal on 3 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (or the applicant) and the review applicant’s spouse and the review applicant’s other stepdaughter residing in Australia.

1. The review applicant was not represented in relation to the review. The hearing was however assisted by an interpreter in the English and Thai languages.

1. At the end of the hearing, the Tribunal requested additional statements and document in support of this review and to provide them by 17 December 2020. In a post hearing submission, the review applicant submitted a number of documents (listed below) on 15 December 2020.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant continues to be a dependent child of the visa-holding parent for the purposes of clauses 445.211 and 445.222.

Background

1. The review applicant was born in New Zealand on 29 June 1960. At the time of this visa being lodged with the Department on 19 September 2017, the review applicant was holding a Subclass 444 visa. The review applicant was conferred Australian citizenship on 13 October 2020 (a copy of the citizenship certificate is on the Tribunal’s file).

1. The review applicant married Thai national Wijit Kitiwan who was born on 15 September 1971. The review applicant successfully sponsored her for a Partner visa which was granted on 21 March 2016. At the time of grant, the younger of Ms Kitiwan’s two children was granted a Partner visa as a dependent on the basis of she was a member of the same family unit as the review applicant. She had been aged 17 at the time of applicant and a full-time student at the time of grant.

1. The visa applicant had turned 18 at the time of lodgment. No evidence had been provided to the Department to indicate the visa applicant is incapacitated to work or that she was dependent on her mother under regulation 1.05A(1): definition of ‘dependent.

1. The visa applicant had declared that she is currently employed at a Starbucks Coffee outlet in Bangkok earning 12,165 Thai baht per month. She also stated that she resided with her biological father in a residence belong to her paternal uncle. The visa applicant provided a

written statement dated 10 June 2018 stated that her mother provided financial assistance for her education, health expenses, overseas tips and personal expenses. This was accompanied by regular money transfers from the visa applicant’s mother to the visa applicant. However, the delegate was not satisfied that these transfers indicated the visa applicant being wholly reliant on thee funds to meet her basic needs.

1. On 23 August 2018, the delegate acting on behalf of the Minister refused to grant the visa applicant a Subclass 455 (Dependent Child) visa. The review applicant validly lodged to have the refusal decision reviewed by the Tribunal on 3 September 2018 with the decision notification and record attached.

1. On 23 September 2018, the review applicant submitted a number of documents to demonstrate the records transactions of moneys transferred from the visa applicant’s mother to the visa applicant in Thailand; a statement by the review applicant, the visa applicant, the visa applicant’s mother and the visa applicant’s sister and a document about the cost of living in Thailand.

1. On 22 November 2020, the Tribunal received a number of documents including a copy of the 455 visa application, a copy of the delegate’s decision record, evidence of further remittances, a medical document and a psychological report pertaining to the health of the visa applicant’s mother; the cost of living in Thailand, the visa applicant’s expenses in Thailand.

1. Prior to the scheduled hearing, the visa applicant provided an undated statement outlining her tendency, claiming her mother works very harm to send money to her and has yet to enjoy her new life in Australia; as well as a number of family photographs.

1. In a post hearing submission, the review applicant submitted a number of documents on 15 December 2020 (which are listed below).

   ·A written statement from the visa applicant (dated 10 December 2020) elaborating on a number of matters raised in the hearing (a copy of the letter is also provided in Thai);

   ·An undated written statement by the visa applicant outlining her daily routine caring for her maternal grandmother as well as holding down a part time job (a copy of the letter is provided in Thai);

   ·A medical letter pertaining to the visa applicant’s maternal grandmother and her application for an Australian visitor visa;

   ·The grant of a visitor visa to the visa applicant’s maternal grandmother;

   ·A number of certified medical documents from a Thai hospital pertaining the visa applicant’s maternal grandmother with English translations; and

   ·A number of family photographs.

1. No further documents were submitted as part of this review. There were no non-disclosure notices attached to either the Departmental or Tribunal files in this matter.

Relevant law

1. In this matter, the criteria to be satisfied at the time of applicant relevantly is:

   445.211

   The visa applicant:

   (a)  is a dependent child of a visa-holding parent; and

(b)  is sponsored by the nominator or sponsor of the visa-holding parent.

1. In this matter, the criteria to be satisfied at the time of decision relevantly includes:

   445.222

   The applicant continues to be a dependent child of the visa-holding parent.

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.

Findings

1. It is accepted that the review applicant has been continuously married to Ms Kitiwan since her visa was granted and her partner visa remains valid at the time of making this visa

1. It is further accepted that Ms Kitiwan is the biological parents of the visa applicant (as well as the visa applicant’s sister). It follows from this that the review applicant has continuously been the stepfather of both children since this visa was lodged. The visa applicant is therefore sponsored by the sponsor of the visa holding parent, as discussed in 445.211(b) and 455.222.

1. There is no disputed contention that the visa applicant had not reached the age of majority or that she has ever been engaged or married at both the time of application and decision, pursuant to regulation 1.03.

1. There is no suggestion that the visa applicant is incapacitated for work due to the total or partial loss of the visa applicant’s bodily or mental functions as required by regulation 1.05A(1)(b).

1. The outstanding matter in this case is the issue of dependency of the visa applicant on the visa-holder as required by regulations 1.03((b)(i) and 1.05A(1)(i) and (ii).

1. As outlined in the decision record, the visa applicant was working part time and had been receiving remitted money transfers from her mother residing in Australia. The Tribunal accepts this and notes the remittances to the visa applicant from her mother were greater than she was earning.

1. During the scheduled hearing, the Tribunal enquired whether the visa applicant was receiving material support, including shelter, from her biological father. The visa applicant claimed that while she resided in the same residence as her father and her paternal uncle, her father was a dysfunctional, often struggling to maintain employment and repay old debts, and did not provide any financial or other support. The mother of the visa applicant claimed her father also struggled with alcohol and that fathers were traditionally not supportive of their daughters in Thailand and the responsibility lied with her to raise her daughters.

1. The sponsor and the visa applicant’s mother both attested to having modest incomes. The sponsor has experienced of no earned income around the time of application for a reasonable amount of time and that he relied on drawing down from his superannuation account. The visa applicant’s mother otherwise worked in a retail sector.

1. In considering whether the visa applicant was substantially dependent on the visa applicant, the Tribunal has considered two salient activities prior to and after the application on an ongoing basis was lodged.

1. Firstly, the visa applicant had been engaged in full time studies between March 2013 and May 2017 during which she completed a Bachelor in sales and marketing at a private Thai university. During this period, the visa applicant’s mother had contributed substantially to her basic needs as well as tuition fees. This period covered a substantially period prior to the visa application being lodged in September 2017. The Tribunal accepts this to be the case.

1. Secondly, after the visa applicant’s studies, the visa applicant claimed had been caring for his grandmother who had been ailing since a stoke in 2010 and that she had been caring on a regular basis for the period prior to her application for this visa. This had not been elaborated upon prior to the scheduled hearing. She also attested to her grandmother’s more recent fading of memory.

1. In a post hearing submission, the visa applicant outlined that the days she cared for her grandmother included a four-hour commute, washing her grandmother’s clothes, changing her bedsheets, cleaning her house; transporting her grandmother to medical and other appointments, claiming government subsidies medicine and preparing meals. The care of her mother was also paid for by her mother in conjunction with the visa applicant’s maternal aunts.

1. The visa applicant’s mother provided oral evidence that the caring responsibilities she had provided to her own mother prior to her departure to Australian were imposed on her daughter. It was further explained the visa applicant’s grandmother had travelled to Australia in which medical information was provided. In a post hearing submission, the Tribunal received some documentary evidence of the grandmother’s visitor visa and stroke. There was no suggestion that grandmother in question was so frail she could not travel to Australia, but she did require the visa applicant’s sister to travel with her grandmother. Nor was there a suggestion that she provided care for her grandmother without the support of other relatives. The visa applicant explained that it was only until recently that the grandmother moved to another province to be cared for by one of her maternal aunts (as a precaution to avoid Coronavirus during the 2020 pandemic).

1. In this matter there are with no serious credibility concerns about the oral, written and documentary evidence submitted. There is no reason to suspect the visa applicant’s caring responsibilities towards her mother to be a late contrivance for migration purposes. Instead, this information was revealed during the inquisitorial process of a scheduled hearing. The parties in this matter have not been represented and did not assess the visa applicant’s caring responsibilities to be significant to this matter. Instead, they provide much irrelevant material such as medical information pertaining to the visa applicant’s mother. Without this

late information about the visa applicant’s caring responsibilities, the Tribunal would have struggled to make the following favourable findings.

1. It is clear by the part time work and her caring responsibilities, the visa applicant had the capacity to meet her basic needs by participating in the labour market in Thailand on a full time basis Indeed as a graduate, she was well placed to earn an income above the minimum age to meet her basic needs for food, clothing and shelter.

1. However, she had been substantially preoccupied first with were full time tertiary studies prior to the time of application and then with ongoing daily care of her frail and aged grandmother back in Thailand just before the time of applying for this visa, substantially during the period between now and this decision. The Tribunal accepts that the visa applicant had entered into this arrangement prior to and after this visa application was lodged, whereby she was the carer of her maternal grandmother in lieu of the traditional role her mother that had preoccupied her prior to departure. It is further accepted that the visa applicant’s income only made a negligible amount of her monthly income compared to her received remittances. These caring responsibilities significantly curtailed her capacity to work whereby she was substantially reliant on her mother’s remittances throughout the relevant period in this matter.

1. In these circumstances the Tribunal is satisfied that the visa applicant’s reliance on her mother (and stepfather) has been greater than reliance on any other person or source of support to meet her basic needs, including her own. When taking all these accepted factors into account, the Tribunal is satisfied that the visa applicant is, and has been for a substantial period immediately before that time, substantially but not wholly, reliant on her mother for financial support to meet the visa applicant’s basic needs for food, clothing and shelter, as required by regulation 1.05A(1)(a)(i) and (ii).

1. Accordingly, the visa applicant satisfies regulation 1.05A.

1. It follows from this that the Tribunal finds the visa applicant is a dependent child of a person who has turned 18 and is dependent for the purposes of regulation 1.03(b)(i).

1. It follows from this and earlier findings, the visa applicant is a dependent child for the purposes of regulation 1.03.

1. Noting the visa applicant was a dependent child for a substantially period immediately before the time of this application, the Tribunal is satisfied that the visa applicant meets clause 445.211.

1. Taking into account the accepted continuing circumstances since this application was lodged, the Tribunal therefore finds the visa applicant continues to be a dependent child of the visa-holding parent as required by clause 445.222.

1. Accordingly, the appropriate course is for this Tribunal to remit the Subclass 445 visa to the Minister for further consideration for the grant of the visa

DECISION

1. The Tribunal remits the matter to the Minister for further consideration as the applicant met clauses 445.211 and 445.222 of Schedule 2 of the Regulations.

Brendan Darcy Member