Higginson (Migration)

[2019] AATA 1522

Higginson (Migration) [2019] AATA 1522 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Brian Higginson

VISA APPLICANT:  Miss Sutthida Artpasa

CASE NUMBER:  1700480

DIBP REFERENCE(S):  OSF2016/011569

MEMBER:Kira Raif

DATE:25 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa. 

Statement made on 25 February 2019 at 3:54pm

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) visa –applicant does not meet the definition of ‘dependent child’ – applicant has a part time job – applicant was not a dependent child at the time of the application – applicant is not a dependent child at the time of this decision– Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.05A, Schedule 1, 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 11 November 2016 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Thailand, born in May 1995. The visa applicant applied for the visa on 21 June 2016. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 445.211 and 445.222 because the delegate was not satisfied the visa applicant was a dependent child of her mother. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse and sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations.

5. Clause 445.211 relevantly provides that at the time the application is made, the applicant must be a dependent child of a visa-holding parent. At the time of decision, cl. 445.222 requires the visa applicant to continue to be the dependent child of the visa holding parent.

6. ‘Dependent child’ is defined in r.1.03 of the Regulations. The term ‘dependent’ is defined in r. 1.05A as follows

   (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.

   Is the applicant a dependent child of the visa holding parent?

7. The visa applicant provided with the application evidence of being a child of the visa-holding parent (her mother). Also included with the primary application is evidence that the visa applicant’s mother had been granted the temporary Partner visa and the Departmental records show that she is yet to be granted the permanent visa. The Tribunal is satisfied that the applicant is the child of the relevant parent. The Tribunal is also satisfied that her mother holds the subclass 309 visa and is therefore a ‘visa-holding parent’.

8. The applicant was born in May 1995 and the Tribunal finds that she had turned 18 at the time the application was made. The Tribunal must consider whether the visa applicant is a dependent child of her mother at the time of application, within the meaning of r. 1.05A, for the purpose of cl. 445.211 and at the time of this decision, for the purpose of cl. 445.222.

9. There is no evidence before the Tribunal to indicate that the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. She does not meet paragraph (1)(b) of the definition of ‘dependent child’.

10. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated in her application that she was previously employed as a nurse between October 2015 and January 2016 and her main source of financial support was the sponsor. During her telephone interview with the delegate, the visa applicant is recorded to have stated that

    a.She completed her full-time study in August 2015.

    b.She worked full-time at a medical clinic between September 2016 and January 2016 with an average monthly income of 13,000 – 14,000 baht.

    c.After she quit her job, she worked as a waitress but not on a full-time basis. Her income was 6,000 – 7,000 baht.

    d.She lives in a dormitory where the rent is 3,000 baht a month.

    e.Her mother occasionally transfers money to her via Western Union and also has a bank account in Thailand. The applicant has an ATM card for this account and withdraws money from her mother’s account when she needs it.

11. The delegate noted that the visa applicant held a full-time job for about four months in the year before the application was made and she continued with part-time employment. The delegate noted that the applicant’s income was sufficient to meet her basic needs, so she cannot be considered to be substantially reliant on her mother. The delegate was not satisfied the applicant was dependent on her mother.

12. In oral evidence to the Tribunal the review applicant stated that the visa applicant does not work all the time. She does casual jobs from time to time and does not earn enough to meet her needs. The review applicant said that they have sent money reguarlly to the visa applicant and they visit her about three times a year and also give her money during such visits. The review applicant said they would have sent over $15,000 or $20,000 to the visa applicant since mid-2015. He also gave her $600 when she visited Australia recently. The review applicant told the Tribunal that there is no paperwork available to evidence the transfers.

13. The review applicant confirmed that the visa applicant used to work and earn some money but said her income was not sufficient to meet all her needs.

14. The visa applicant’s mother told the Tribunal that when her daughter was working as a nurse, she earned about 9000 baht a month as a base salary and over 11,000 baht with overtime. She said that her daughter’s income was not sufficient to meet her expenses. Ms Jantarasena said that her daughter stopped working about two years ago and now lives with her grandfather and maybe works in the field. She said that the visa applicant does not pay for rent or for food.

15. The Tribunal has considered the visa applicant’s dependence on her mother. Evidence of some transfers had been submitted with the visa application but there is little evidence of the family’s financial arrangements more recently. The review applicant’s evidence to the Tribunal is that despite the regular transfers, there is no evidence of such transfers.

16. The Tribunal is prepared to accept that the review applicant and his partner have sent money to the visa applicant. However, there is very little evidence to satisfy the Tribunal that these funds are used for the visa applicant’s basic needs. Neither the review applicant nor the visa applicant’s mother were able to explain how their funds were being used and whether these are used for food, shelter and clothing. Further, with respect to the time when the visa applicant had a job and an income, the review applicant and his partner could not explain whether it was their financial support or the visa applicant’s income from employment that was relied upon to meet the visa applicant’s needs for food, shelter and clothing. Their evidence is that at present, at least some of these expenses are met by the visa applicant’s aunt or grandparents.

17. Overall, the Tribunal accepts that the review applicant and his partner had been providing financial support to the visa applicant. However, the Tribunal finds that the visa applicant had support from other sources, including income from employment and, more recently, from her family where she lives. On the limited evidence before it, the Tribunal is not satisfied that at the time of the application and at present, the visa applicant’s reliance on her mother for financial support was greater than her reliance on any other source to meet her basic needs for food, shelter and clothing. The Tribunal is not satisfied the visa applicant was a dependent child at the time of the application and that she is a dependent child at the time of this decision. The Tribunal is not satisfied the visa applicant meets cl. 445.211 and cl. 445.221.

18. The review applicant, his wife and sister in law told the Tribunal that they are not well and they hope the visa applicant can come and look after them. The hope they can keep the family together. The review applicant told the Tribunal that the visa applicant would make a good contribution to the Australian society. The Tribunal acnkoweldges that evidence but as the Tribunal explained to the parties in the course of the hearing, it has no discretion to grant the visa on humanitarian grounds.

    DECISION

19. The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa. 

    Kira Raif
    Senior Member