Chun (Migration)

[2023] AATA 2020

Chun (Migration) [2023] AATA 2020 (28 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chitra Chun

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  1922215

HOME AFFAIRS REFERENCE(S):          BCC2016/1665222

MEMBER:Anne Grant

DATE:28 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.311 of Schedule 2 to the Migration Regulations.

Statement made on 28 June 2023 at 3:26pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – dependent child over 18 of primary applicant mother – applicant’s study and irregular work in home country – applicant’s savings paid for travel and mother paid rent and expenses – applicant stopped working when visa granted and does not work in Australia – documentation and statutory declaration – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.03, 1.05A(1), Schedule 2, cl 820.311

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 6 May 2016. The delegate refused to grant the visa on 22 July 2019.

2. The delegate made the decision on the basis that they were not satisfied that the visa applicant was a dependent child of the primary visa applicant, her mother, Ms Yem Na as required by cl 820.311. Mrs Na was the primary applicant for a Partner (Residence)(Class BS) Visa.

3. On 25 May 2023, the Tribunal received extensive submissions and documents from the visa applicants, as listed below.  In light of the new evidence received, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

4. At the time of application, the bulk of submissions to the Department were in support of the relationship between the primary applicant and sponsor.  I will not list those many documents here.  However, the visa applicant and her mother provided the following relevant documents related to the issue here in dispute, her dependence on her mother:

   ·Statements of friends of the primary applicant, S Oeun, dated 21 November 2017 and S. Srey, dated 20 November 2017, in which they each include a comment that the applicant and her siblings live in the same house as her mother and the sponsor; that they support the children, meet all their living costs and look after them very well. 

   ·Bank Statements for Westpac Home loan in the joint name of the primary applicant and sponsor;

   ·Certifications and confirmations of the applicant’s educational history, including enrolment from Panasastra University of Cambodia for the year 2012 – 2013 and a certificate of attainment in completing level 11A  - the General English Program in September 2015 at IDP Education Cambodia, and Bachelor’s Degree from the University of Management and Economics, Cambodia, issued January 08, 2015.

   ·Receipt for a watch paid for by the applicant’s mother  8 January 2018 - $638

   ·Receipt for a barista course paid for by the applicant’s mother in  May 2017;

   ·Receipt for flights to Sydney paid for by the applicant’s mother in February 2017;

   ·Receipt for prescription and dental costs for applicant paid by her mother, November 2017;

   ·Statutory declaration of the applicant’s mother, dated 3 June 2016.  In this statement she outlines how the applicant had some part time employment as outlined in the employment agreement, and that she only worked full time for two months before she came to Australia.  Further, she saved the money she earned so she could travel, while her mother was responsible for all of the applicant’s living costs.  The visa applicant has used her savings and relied on her mother for her additional  and ongoing costs, as she declared in her visitor visa application.  The applicant’s mother explains how she transferred money to her friend Ms Mao every month for her daughter’s living costs, including rental when she was living in Phnom Penh. 

   ·Statutory declaration of the applicant’s mother, dated 1 December 2017. In this statement she states that the applicant is absolutely her dependent child and is wholly dependent on her for everything.  She states that the applicant cannot afford her living costs without her.    

   ·Letter 12 April 2016 from Ms M Sosor, a friend of the visa applicant’s mother in Cambodia in which she confirms that the applicant used to come and take money from her when she did not have money to pay for her school, house rental and other expenses.  Her mother would then pay her back when she came to visit her daughter in Phnom Penh. 

   ·Letter 26 May 2016 from Mr S Lux, in which he confirms he is the owner of a house (address provided) in Phnom Penh and that he rented the house to the applicant’s mother for two years for the applicant to live there. He confirms that the visa applicant’s mother was responsible to ensure the rent was paid. He also provided the lease agreement between himself and the visa applicant’s mother as tenant, dated 1 November 2013;

   ·Applicant’s employment contract with Samleng Cheayden, showing rates of pay of $150 per month for 4 hours per day, and then $300 per month; and then if she works full time, the salary was $600 per month.

   ·Applicant’s bank account confirmation showing a balance in December 2015 of approximately USD $5,000,

   ·Submission of the applicant’s previous representative noting that she stated clearly in her visitor visa application that if she ran out of money her mother would provide her with support by transferring funds. The submission also notes that the rental was $450 per month which is on its own more than the applicant was ever earning (apart from two months when she worked full time) from her employment.   

5. The applicant also provided the following information in support of the application for review on 26 May 2023:

   ·A written submission from the applicant’s representative;

   ·Additional copies of previous declarations and educational information;

   ·Copies of the applicant’s mother’s bank statement showing multiple transfers to the applicant throughout 2022 and 2023;

   ·Evidence of applicant’s dental bills at Pacific Smiles Dental  met by her mother;

   ·A statutory declaration from the applicant’s mother dated 23 May 2023;

   ·A statutory declaration from the applicant, dated 23 May 2023.  Included in that statement is the following information:

   4. I understand that the Department refused to grant me a Partner (subclass 820) visa because it was not satisfied that I was not dependent on my mother. The Department _ said that the information I provided in support of my application for a Visitor (subclass 600) visa in 2015 showed that I was financially independent.

   5. The Department's decision states that the documents I provided stated that I was employed full-time and earning $600 USD per month. The Department also stated that I provided evidence of a bank account containing $5,000 USD.

   6. I would like to clarify my financial situation and dependence on my mother, both at the time of her and I lodging a Partner (subclasses 820/801) visa application and today.

   7. I started working for my brother-in-law's company, Samleng Cheayden, in June 2014. He was married to my eldest sister Guech Heang Chun but they are now divorced. I worked casually doing administrative tasks when he needed me. I did not have regular hours or a regular income but I would estimate that I was earning between $150 and $300 USD per month.

   8. I was also studying full-time at the Australian Centre for Education. Previously, I had studied at university. In 2008 to 2009, I studied a Certificate of Foundation Year Course at the University of Management and Economics. I then went on to study and complete a Bachelor's degree in English at the University of Management and Economics in 2012.  From 2012 to 2013 I completed an English program called Intensive English for Academic Purposes at Pannasatra University of Cambodia. I started studying a course Pannasatra University of Cambodia for one year but I did not finish it. I continued studying English courses at the Australian Centre for Education from 2014 until the end of September 2015.

   9. After I finished my studies in October 2015, I began working full-time at my brother-in-Iaw's company. I only worked there full-time for two months, October and November
   2015. During those two months, 1 was paid $600 USO each month. I think that this has been the cause of confusion and was not properly explained to the Department in my application for a Visitor (subclass 600) visa or when our previous migration agent provided further information to the Department in relation to the Partner ( subclass 820) visa application.

   10. When I was granted the Visitor (subclass 600) visa on 22 December 2015, I stopped working so that I could prepare for my trip. I spent the next few months looking after my nephews, purchasing gifts for relatives in Australia, and purchasing clothes and other things I needed for my trip.

   11. While I was in Cambodia, I lived in Phnom Penh with my younger brother, Thanuvong. We lived in a townhouse in a gated community. We lived there for about two to three years. Our mum paid the rent for the townhouse which was $450.00 USO per month. While I was living in Phnom Penh, my mum also gave me about $500.00 USO to $800.00 USD extra cash per month, even when I was working. This was to pay for my clothes, food, and study expenses. My mum gave me this money in cash when she was visiting us in Phnom Penh or, sometimes, she would also give me money when I went home to visit her for a holiday. As well as paying me directly, my mum's good friend, Sosor Mao, who lives in Phnom Penh would sometimes give me money and my mum would pay Sosor back when she visited Phnom Penh. I spent around $200.00 to 300.00 USD per month on clothes, petrol, books for my studies and my phone bill in Cambodia and about $10 USD per day on food.

   12. The savings which I provided evidence of to the Department were from my employment at Samleng Cheayden. I was paid in cash and saved up my wages for the two months that I worked full-time and deposited my savings into my bank account. I spent most of this money on expenses for my trip to Australia before I left Cambodia. My mum had also given me USD $2,500.00 in cash to take to Australia which I did.

   13. When I arrived in Australia on 18 March 2016, I did not work I lived with my auntie, Chou Ling, at her house [Address redacted] in Victoria. During that time, my mum paid my auntie for me to live with her, including to stay there and for my food and utility bills. I gave the money from my mum to my auntie in cash. I think the total amount I paid my auntie was about $600.00 AUD. I also spent about $500.00 AUD on clothing, paying with the money that my mum had given me.

   14.After my mum and other siblings arrived in Australia on 9 April 2016, they lived with Eng Hour Peou, who is now her husband and who sponsored our application for Partner (subclass 820) visas. I moved to Eng's house on 10 April 2016. From that time my mum paid for my share of the bills at the house. Eng owns the house that we all live in and, since July 2016, he and my mum have both been responsible for the mortgage, the repayments for which are about $1,400 a month. My mum buys the food for the whole family which costs about $450.00 AUD each week in total. My mum gave cash directly to me so that I could buy clothes and other things that I needed. I would spend around $300.00 to $400.00 AUD per month on clothing from the money that my mum had given to me. This was the situation when I applied as a secondary applicant for a Partner (subclass 820) visa.

   15. This situation has remained the same since then. My mum and Eng are responsible for all my expenses including for my basic needs. My mum still buys all the food for the family which costs about $450.00 AUD per week, so my share is about $90 per week. My mum pays for my share of the bills for the house and she and Eng own the house that we all live in. My share is about $25 per week. My mum transfers money into my bank account for me to buy clothing, pay for my medical bills and other necessities or she gives me cash. Over the past 12 months she has transferred about $314 a week into my account.

   16. My mum also pays for my private health insurance with Medibank. During January to March this year, she paid for some medical procedures, including acupuncture for my thumb, which was about $180.00 and dental work totalling $1,177.00. My mum is also paying for a hair treatment that I want which will cost about $250.00 every month.  

   17. I am not currently employed and have never been employed in Australia. I help my family around the house with day-to-day tasks like shopping or cleaning. Since my visa was refused, I have been feeling depressed and have not had any motivation to work or do anything.

   18. The only money in my personal bank account that my mum did not transfer was from some money that I won gambling on Poker machines. I went to Keysborough TAB with a friend because I was feeling depressed with nothing to do and, on 18 March 2023, and used the machines there. It was the first time that I had ever done something like that. I don't know why but I was very lucky and ended up with $2,440.79 which was given to me as a cheque. 

   19. I am entirely financially dependent on my mum and Eng for all my needs.

6. In reaching my decision in this matter, I have taken into consideration the extensive information contained in the Departmental file (in addition to that specifically outlined above) and as provided to the Tribunal by the applicants, even where I have not specifically referred to it in this statement of reasons.

   Consideration

7. The visa applicant was a secondary applicant at the time her mother, Mrs Yem, applied for a Subclass 820 (Partner) Visa on 6 May 2016. At that time, the applicant was aged 27. At the time of application, the visa applicant must satisfy cl 820.311 as a secondary applicant, which provides:

   820.311 

   The applicant is:
   (a)  either: 

   (i)  a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or
   (ii)  a member of the family unit of a person who:

   (A)  is the holder of, or has been the holder of, a Subclass 300 (Prospective Marriage) visa; and
   (B)  has applied for a Partner (Residence) (Class BS) visa; and

   (b)  the sponsorship (if any) in respect of that person includes the applicant; and
   (c)  the Minister has not decided to grant or refuse to grant a visa to the person.

8. According to the definition in regulation 1.03,

   dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child's bodily or mental functions.

9. The visa applicant was older than 18 years of age at the time of application.  The term dependent is further explained in regulation 1.05A.  Accordingly, the applicant must be dependent on her mother as defined in regulation 1.05A the relevant part of which 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.

10. The applicant is a Cambodian national.  According to the information before me, the visa applicant studied a Bachelor degree in English at the University of Management in Cambodia and completed those studies in 2013.  She then moved to the capital, Phnom Penh, studying English at Pannasatra University of Cambodia.  She completed her studies in October 2015, attaining an English certification in September 2015. 

11. According to the statements and documentary evidence before me (and I accept), the visa applicant had worked part time for a company owned by her brother-in-law, named Samleng Cheayden since 2014.  Over the period of her employment, she earned between USD $150 - $300 per month.  Her mother paid for her rented apartment in the capital, Phnom Penh, where she lived with her brother.  The rental cost was USD $450 per month.  Her mother also gave her a monthly allowance of between $500 - $800 for clothes, food and other expenses.  Her mother owned and ran a successful jewellery shop.  The money given by her mother was either given to her directly or through a friend that would be paid back when the applicant’s mother came to the capital.  

12. In October and November 2015, the applicant had finished her studies and was able to work full time and earned $600 for each of those months. According to the information submitted, she had saved around $5,000 to put towards a trip to Australia.  This savings was from the money she had earned from employment, as well as some from her mother.  I accept that the applicant was only able to save this money because her mother met her accommodation, clothing and food expenses. 

13. The information and evidence before me suggests that the visa applicant arrived in Australia on 18 March 2016 on a visitor visa, having used some of her savings to travel and before leaving Cambodia.   She also had a further lump sum from her mother of USD $2,500.    Her mother, the primary applicant, arrived in Australia on 9 April 2016.   The visa applicant lived with her aunt when she first arrived in Australia, and has not worked since arriving. She continued to be dependent on her mother, who paid for her share of food and utility bills in living with her aunt, as well as clothing and other necessities on a monthly basis.  Once her mother arrived in Australia and moved in with her step-father, the visa applicant moved in with them and her siblings and continues to live in that house.  Her mother and her step father meet the cost of the mortgage.  Information showing household bills and expenses have been provided.

14. There is no suggestion in the information and evidence before me that the applicant has any resources, employment or capacity to contribute to her accommodation, clothing or food expenses apart from those outlined above.  I accept that her mother is currently her only source of financial support.     

15. I note and accept as reasonably conservative, the submissions of the applicant’s representative which suggest (based on an estimate from Expatistan.com), that the monthly living costs for a single person living in Phnom Penh are estimated at USD$1,211.  Accordingly, the applicant’s part time income and even her full time income would have been insufficient to meet even half of her financial needs for shelter, clothing and food. 

1. The evidence reflects and I accept that the visa applicant was financially dependent on her mother whilst living in Cambodia until she departed the country, even though she had a small part time salary (and two months of income of $USD600).  Her mother met her financial needs for accommodation, food and clothing, and even though she earned a small income, it was insufficient to meet her basic financial needs as a young single woman. Then, when she departed for Australia, I accept that she met some of her travel costs herself but that she continued to rely on her mother to meet all of her essential financial needs.  She does not work.  There is no suggestion in this review that the visa applicant has ever had any other sources of financial support apart from those discussed above.   

2. In all the circumstances of this case, I accept that the visa applicant has established that she  was at the time of application and for a substantial period immediately before that time, wholly or substantially reliant on the primary applicant (her mother) for financial support to meet her basic needs for food, clothing and shelter.  I am also satisfied that she continues to be wholly or substantially reliant on her mother for emotional and psychological support and for financial support in meeting her need for food, clothing and shelter.

   Time of Decision Criteria

3. The visa applicant’s mother’s application for the visa has not yet been decided, as far as the Tribunal can ascertain. The visa applicant continues to be dependent on her mother, and so the outcome of her application is related to the final decision made on her mother’s application for the visa.  Accordingly, it is appropriate to remit the matter for reconsideration by the Department with her mother’s application because she was, at the time of application, a dependent child of her mother.  

4. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·cl 820.311 of Schedule 2 to the Regulations.

   Anne Grant
   Member