Discion (Migration) - [2020] AATA 2391

Discion (Migration) [2020] AATA 2391 (15 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mark Christopher Discion
CASE NUMBER:  1710812
HOME AFFAIRS REFERENCE(S):          BCC2016/3290879
MEMBER:Ian Garnham
DATE:15 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.311(a) of Schedule 2 to the Regulations

Statement made on 15 June 2020 at 12:15pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – secondary applicant on mother’s prospective marriage and partner visa applications – dependency at time of application and substantial period before – unemployed and working on family farm – mother and/or stepfather sent money to aunt to provide for care and airfare – accommodation, care and financial support in Australia – started employment after date of application – credible witnesses – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.05A, Schedule 2, cl 820.311(a)(i)
CASE
Huang v MIMA [2007] FMCA 720
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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 October 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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.
In this case the visa applicant was originally a secondary applicant of his mother’s prospective marriage (subclass 300) and then, partner (subclass 820) visa applications.
The Departmental (Department of Home Affairs (DOHA)) delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.311 because they were not satisfied that the visa applicant was a dependent person within the meaning of r.1.05A of the Migration Regulations 1994 (the Regulations).
The visa applicant appeared before the Tribunal by video conference on 1 October 2019 to give evidence and present arguments.
The Tribunal also received oral evidence by video conference from his mother and stepfather.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant meets cl.820.311. To do so he must be regarded as…

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.

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Details

AGLC: Discion (Migration) [2020] AATA 2391
Case: [2020] AATA 2391
Decision Date: 15 June 2020

CaseChat Overview and Summary

This matter concerned a visa applicant who was a secondary applicant on his mother’s prospective marriage and partner visa applications. The applicant’s visa was refused on the basis that he did not meet clause 820.311(a)(i) of the Migration Regulations 1994, nor did he satisfy regulation 1.05A, which defines a dependent person. The delegate found that the applicant, who was 21 years old at the time of application, was not a dependent child of his mother and stepfather.

The primary legal issue before the court was whether the visa applicant was a dependent child of his mother at the time of his visa application, specifically on 4 October 2016, and for a substantial period immediately preceding that date. This required an assessment of whether the applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs, and whether this reliance was greater than any reliance on other persons or sources of support.

The Tribunal found that the visa applicant, his mother, and stepfather were credible witnesses. It accepted their evidence that the applicant had been unemployed and working on the family farm, and that his mother and/or stepfather had provided financial support through an aunt for his care and airfare to Australia, including accommodation and financial assistance. The Tribunal noted that the applicant commenced employment after the date of application, rendering that subsequent employment irrelevant to the dependency assessment.

Consequently, the Tribunal concluded that the visa applicant met the criteria under clause 820.311 of Schedule 2 to the Regulations. The application was remitted to the Minister for reconsideration of the remaining criteria for a Subclass 820 (Partner) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is whether the visa applicant meets cl.820.311. To do so he must be regarded as being a dependent child or a member of the same family unit as his mother who satisfies the primary criteria in Subdivision 820.21.Background: The visa applicant was a secondary applicant of his mother’s subclass 300 (prospective marriage) visa application. On 2 May 2017 the visa applicant’s mother was granted a subclass 820 (Temporary)(Partner) visa. This is the same day that the visa applicant’s visa was refused. The delegate found that the visa applicant did not meet cl.820.311(a)(i). They also found that the visa applicant did not satisfy r.1.05A.Consideration: Clause 820.311 must be met by secondary applicants, such as the visa applicant in this case. It states:820.31—Criteria to be satisfied at time of application820.311The 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) (ClassBS) 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. Clause 820.311 provides a criterion that needs to be satisfied at the date of application. In this case, that date is 4 October 2016. At that time the visa applicant was 21 years old. The delegate found that the visa applicant was not a dependent child of his mother and stepfather. A dependent has the meaning set out in Regulation 1.05A:Reg 1.05A Dependento 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. Evidence must be considered, about the visa applicant’s dependency on his parents, at the relevant time, and for a ‘substantial period before that time’[1]. In this case the ‘date of application’ is the relevant time. And for a lengthy period before that is the relevant period the tribunal must consider.[1] While undefined in the legislation, this has been held to mean a lengthy period – In Huang v MIMA [2007] FMCA 720 per Cameron FM at [43]

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 The issue in the present case is whether the visa applicant meets cl.820.311. To do so he must be regarded as being a dependent child or a member of the same family unit as his mother who satisfies the primary criteria in Subdivision 820.21.Background: The visa applicant was a secondary applicant of his mother’s subclass 300 (prospective marriage) visa application. On 2 May 2017 the visa applicant’s mother was granted a subclass 820 (Temporary)(Partner) visa. This is the same day that the visa applicant’s visa was refused. The delegate found that the visa applicant did not meet cl.820.311(a)(i). They also found that the visa applicant did not satisfy r.1.05A.Consideration: Clause 820.311 must be met by secondary applicants, such as the visa applicant in this case. It states:820.31—Criteria to be satisfied at time of application820.311The 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) (ClassBS) 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. Clause 820.311 provides a criterion that needs to be satisfied at the date of application. In this case, that date is 4 October 2016. At that time the visa applicant was 21 years old. The delegate found that the visa applicant was not a dependent child of his mother and stepfather. A dependent has the meaning set out in Regulation 1.05A:Reg 1.05A Dependento 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. Evidence must be considered, about the visa applicant’s dependency on his parents, at the relevant time, and for a ‘substantial period before that time’[1]. In this case the ‘date of application’ is the relevant time. And for a lengthy period before that is the relevant period the tribunal must consider.[1] While undefined in the legislation, this has been held to mean a lengthy period – In Huang v MIMA [2007] FMCA 720 per Cameron FM at [43]

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 820 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl.820.311 of Schedule 2 to the RegulationsIan GarnhamMember

Ratio Decidendi

Legal Principle Established

The delegate found that the visa applicant did not meet cl.820.311(a)(i). They also found that the visa applicant did not satisfy r.1.05A.Consideration: Clause 820.311 must be met by secondary applicants, such as the visa applicant in this case. It states:820.31—Criteria to be satisfied at time of application820.311The 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) (ClassBS) 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. Clause 820.311 provides a criterion that needs to be satisfied at the date of application. In this case, that date is 4 October 2016. At that time the visa applicant was 21 years old. The delegate found that the visa applicant was not a dependent child of his mother and stepfather. A dependent has the meaning set out in Regulation 1.05A:Reg 1.05A Dependento 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. Evidence must be considered, about the visa applicant’s dependency on his parents, at the relevant time, and for a ‘substantial period before that time’[1]. In this case the ‘date of application’ is the relevant time. And for a lengthy period before that is the relevant period the tribunal must consider.[1] While undefined in the legislation, this has been held to mean a lengthy period – In Huang v MIMA [2007] FMCA 720 per Cameron FM at [43] In his Form 47A[2] the visa applicant declared that he began full-time work on 9 December 2016. This employment is of little relevance to the tribunal’s consideration of this case. The employment began 2 months after the relevant period had ended. [2] At FF: 96-99 (DOHA) Information about the relevant period was provided to the tribunal by the visa applicant and, his mother and stepfather at the hearing. I found them all to be credible witnesses and I accept that the evidence they provided to the tribunal is correct.