Han (Migration)

[2020] AATA 2460

Han (Migration) [2020] AATA 2460 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangil Han

CASE NUMBER:  1713057

DIBP REFERENCE(S):  BCC2016/3159852

MEMBER:Michelle East

DATE:16 March 2020

PLACE OF DECISION:  Perth

DECISION: The Tribunal remits the applicant’s application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

-    cl.457.321 of Schedule 2 to the Regulations

Statement made on 16 March 2020 at 3:50pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– whether the applicant is a ‘dependent’ – member of the family unit of the primary visa applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CA, 65
Migration Regulations 1994, rr 1.05, 1.12, Schedule 2, cl 457.321

CASES
Huynh v MIMA [2006] FCAFC 122 

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 1 June 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 September 2016. The delegate refused to grant the visa on the basis that it was not satisfied that the applicant met the definition of ‘member of family unit’ as per Regulation 1.12 because they did not meet the definition of ‘dependent’ under Regulation 1.05A(1)(a).  The applicant therefore did not meet clause 457.321.  A copy of the delegate’s decision was attached to the application for review.

3. The applicant appeared before the Tribunal by telephone on 16 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa holder, Mr Jaekil Han.

4. The Tribunal was assisted with the services of an interpreter in the Korean and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is a ‘dependent’ under Regulation 1.05A(1)(a) so he can meet the definition of ‘member of family unit’ as per Regulation 1.12.

8. Where a child is over 18 and is not incapacitated, the Tribunal must consider the child’s circumstances in relation to the definition of dependent in r.1.05A.  Departmental guidelines provide that full-time students completing their first major, undergraduate qualification may be considered ‘wholly or substantially reliant’ on their parents, even if they are working part-time or receiving a scholarship, provided they are otherwise financially reliant on their parents and have been in continuous full time study since high school.  The guidelines state that students in other circumstances, such as postgraduate students, should be carefully assessed against the criteria in r.1.05A

9. The term ‘dependent’ is defined in r.1.05A.  It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the first person) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter.  Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii).  Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions: r.1.05A(1)(b).  According to Departmental guidelines, ‘substantial period’ in the context of r.1.05A(1)(a)(i) means at least 12 months.

10. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice.  The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

11. For the purposes of the definition of ‘dependent child’ in r.1.03 of the Regulations, dependency is irrelevant if the definition of ‘child’ in section 5CA of the Act is not satisfied.

12. A person is a member of the family unit of another person (the family head) if the person is a child of the family head and has either not turned 18 or has turned 18 but not turned 23 and is dependent on the family head (Regulation 1.12).  If the child has turned 23 they need to show dependence on the basis of incapacity for work because of physical or mental incapacity (Regulation 1.05A(1)(b))

13. The applicant in this matter is currently 21 years old (date of birth, 25 March 1998).

14. The question for this Tribunal is therefore whether the primary visa applicant’s son, Mr Sangil HAN (the visa applicant) is dependent on him at the time of its decision and for at least 12 months prior to the date of the Tribunal’s decision.

15. The delegate in her decision stated that the applicant completed secondary schooling in the year 2015 and no further evidence was provided to indicate the applicant was undertaking tertiary education. Furthermore, no supporting evidence was provided for his claim that his father provided him with money for rent, pocket money, food, clothing and study.

16. The applicant gave evidence to the Tribunal that he had since completed a Diploma of Civil Engineering at TAFE.

17. Prior to the hearing the Tribunal was provided with evidence of the applicant’s living arrangements.  The applicant further confirmed at the hearing that he lives at home with his parents and brother.  His evidence also was that his father pays for the rent and all outgoings.  The applicant’s evidence was consistent with a family arrangement where the applicant is dependent on his parents for all the necessities of living such as food and shelter.

18. The applicant further stated that his father gives him fortnightly ‘pocket money’ which he uses for entertainment and socializing.  He does not contribute to the household financially.

19. The applicant gave oral evidence that his father is training him in the business of tiling but does not pay him for his services.  The applicant’s father said he intends to send him back to South Korea to complete his military training, once the visa has finished.

20. A review of the applicant’s bank statements provided prior to the hearing supported this oral evidence.  The Tribunal is satisfied that the funds the applicant receives from his father are for personal expenses and in all other respects his parents support him.  The Tribunal is satisfied that the applicant’s reliance on his father for his basic needs is greater than his reliance on any other source.  The Tribunal finds that the applicant is and was at the time of decision and for a substantial period before the decision, wholly or substantially reliant on his father for financial support to meet his basic needs for food, clothing and shelter.  The Tribunal is satisfied that the applicant is a dependent child of his father, the primary visa applicant and is so at the time of its decision.

21. The Tribunal finds that the applicant is a ‘dependent child’ as defined in Regulation 1.03 of the Migration Regulations and is therefore a ‘member of the family unit’ as provided for in Regulation 1.12. The Tribunal therefore finds the applicant meets Clause 457.321.

22. The appropriate course is to remit the matter to the Minister for reconsideration.

    DECISION

23. The Tribunal remits the applicant’s application for reconsideration with the direction that he meets clause 457.321 of Schedule 2 to the Regulations for a Subclass 457 visa.

    Michelle East
    Member