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

1. 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).

2. 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.

3. 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.

4. 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).

5. The visa applicant appeared before the Tribunal by video conference on 1 October 2019 to give evidence and present arguments.

6. The Tribunal also received oral evidence by video conference from his mother and stepfather.   

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

8. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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:

11. 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. 

12. 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:

13. Clause 820.311 must be met by secondary applicants, such as the visa applicant in this case. 

14. It states:

    820.31—Criteria to be satisfied at time of application

    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) (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.

15. 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.

16. 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      Dependent

    o    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.

17. 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]

18. 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)

19. 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.

20. The visa applicant said that he finished high school in the Philippines when he was 18 years old (2013).  He said that after that he was unemployed but helped his uncle and aunty working on the family farm.  He also said he was still doing this in December 2015 and that his mother was working abroad and would send money to his aunty to provide for his care.  The visa applicant said that his met his stepfather, a number of times, when he was in the Philippines with his mother.

21. The visa applicant said he continued to live with his aunty and uncle until he came to Australia on 06/04/2016.  His airfare was paid by his mother and stepfather and when he arrived in Australia, he had no money and they paid for all of his food, clothing and care needs.  He also said his mother gave him a mobile phone and she would pay his monthly phone bill.  As soon as he was able to, he began looking for work, but was largely unsuccessful although he gained some minimal part-time work in late 2016 before landing his permanent full-time job in December.

22. The visa applicant’s mother said that she did give the visa applicant a phone and paid his monthly telephone bill but that it was actually her husband who was providing the funds to support the visa applicant.  She was not working at the time because she was pregnant and unable to do so.  The visa applicant’s mother and stepfather married in Australia on 18 May 2016 and their child was born on 12/01/2017.

23. The visa applicant’s stepfather said that he was sending money to the Philippines to support the visa applicant and his family before he came to Australia.  He said that when the visa applicant arrived he provided a bed for him, fed and clothed the visa applicant and paid for his wi-fi access and entertainment needs.    

24. I note that all of the evidence provided by the witnesses at the hearing is consistent with the evidence that was provided by the visa applicant in his application forms.  

25. I am satisfied that at the date of application and for a substantial period beforehand the visa applicant was supported by his mother and stepfather.  I am satisfied that in that period the visa applicant was reliant upon his mother and stepfather for financial support to meet his basic needs for food, clothing and shelter.

26. 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

27. 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 Regulations

    Ian Garnham
    Member