Huong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1863
•11 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Huong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1863
File number(s): BRG 128 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 11 August 2021 Catchwords: MIGRATION – Judicial review – Partner (Temporary) (Class UK) – Subclass 820 (Partner) visa – dependent – time of application criteria – time of decision criteria – no jurisdictional error – dismissed. Legislation: Migration Regulations 1994 (Cth) regs 1.03, 1.05A, 1.05A(1) pt 820.31 of sch 2, cll 820.311(a)(i), 820.321 Cases cited: Huang v Minister for Immigration and Indigenous Affairs [2007] FMCA 720
Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Vo v Minister for Home Affairs [2019] FCAFC 108
Number of paragraphs: 67 Date of last submission/s: 17 September, 2020 Date of hearing: 17 September, 2020 Place: Brisbane Counsel for the Applicant: Ms Lo Piccolo Solicitor for the Applicant: TQH Lawyers & Consultants Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 128 of 2020 BETWEEN: LY LE HUONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.The application filed on 28 February, 2020 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,500.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant seeks judicial review of a decision of the second respondent made on 29 January, 2020 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Partner (Temporary) (Class UK) – Subclass 820 (Partner) visa.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
For the reasons set out below, the application must be dismissed with costs.
BACKGROUND
The applicant was born in Vietnam on 23 August, 1992. She came to Australia on 8 June, 2016 as a dependant on a Visitor (Subclass 600) visa that had been granted to her mother. The applicant is now aged 28 years.
On 22 August, 2016 the applicant’s mother applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa on the basis of her relationship with an Australian citizen that she had married on 20 July, 2016. The applicant was included in the visa application as a dependent child on the basis that she was “wholly and substantially financially dependent” on her mother and that she was studying full time.
On 5 September, 2016 the first respondent (via his delegate) requested further information in relation to the applicant’s claim to be dependent on her mother. The applicant responded to the request.
On 19 March, 2018 the first respondent again requested further information in relation to the applicant’s claim to be dependent on her mother. The applicant provided submissions, documents concerning her study, documents concerning her income, statements for bank accounts held by her mother’s sponsor which were annotated to identify expenditure concerning the applicant and statements for the applicant’s own bank accounts.
On 15 November, 2018 a delegate of the first respondent refused to grant the visa to the applicant because the delegate was not satisfied that the applicant satisfied cl.820.311(a)(i) of the Migration Regulations 1994 (Cth).
At this point it is convenient to consider the legislative framework pursuant to which the applicant made her application. To secure the visa as a secondary applicant, the applicant needed to meet the criteria prescribed by Part 820.31 of Schedule 2 of the Regulations. Relevantly, at the time of the application, she needed to demonstrate that she was a dependent child of a person who had applied for a Partner (Residence) (Class BS) visa. Her mother was such a person.
The phrase dependent child is defined in reg. 1.03 in the following way:
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.
Thus, to satisfy the secondary criteria set out in cl.820.311(a)(i), the applicant needed to show that she was dependent upon her mother at the time of her application. The parties agree that because the applicant had turned 18 years of age at the time of the application, subparagraph (a) of the definition of dependent child had no application. They also agree that the applicant did not claim to meet subparagraph (b)(ii) of that definition.
The word dependent is defined in reg. 1.05A (see the definition of dependent in reg. 1.03) as follows:
1.05A Dependent
(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.
Clause 820.321 sets out criteria that must be met at the time the decision is made on the application. Relevantly, it provides as follows:
Criteria to be satisfied at time of decision
820.321
In the case of an applicant referred to in clause 820.311, the applicant:
(a)is a person who is dependent on …, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) visa (the person who satisfies the primary criteria)[.]
It will be appreciated that the requirement that the visa applicant be dependent upon another person is common to both the time of application and the time of decision criteria set out above.
The applicant has pointed me to authorities that help to understand what is meant by the requirements of the definition of dependent. The reference to a substantial period in reg 1.05A has been held to mean a period not more substantial than a “reasonable period”: Huang v Minister for Immigration and Indigenous Affairs [2007] FMCA 720 at [47]. That case, however, was decided in a different context and was concerned with the interaction between the definition of aged dependent relative and the definition of dependent in regs. 1.03 and 1.05A respectively. Nonetheless, the first respondent does not suggest that the phrase substantial period should be interpreted in any other way.
The notion of substantially reliant in the definition was considered in Vo v Minister for Home Affairs [2019] FCAFC 108. In that case, the Full Court of the Federal Court of Australia said:
17. The requirement that the person be substantially reliant on the other person should be construed, in the context of para (a)(ii) and the subject matter of reg 1.05A in dealing with dependence, as requiring a meaningful degree of financial reliance on a person to an extent that the person might properly be described as being dependent on that person (as distinct from simply receiving some assistance from that person) for basic needs. There must be a degree of confidence or trust in the support and it must be sufficient that without the extent of support provided by the other person the dependent person would be in a position where their overall basic need for food, clothing and shelter though aided by others would not be met.
18. Substantial reliance may be placed upon a number of people each of whom may provide some financial support in order to meet basic needs for food, clothing and shelter. By the terms of para (a)(ii), reg 1.05A directs attention to identifying the person who provides the greatest amount of such support. It is only that person who is a person upon whom a person may be dependent for the purposes of the Migration Regulations (where the regulation uses the term 'dependent').
19. For all those reasons, a necessary conclusion from the terms of reg 1.05A considered in context is that 'substantial reliance' for financial support does not mean 'predominant or primarily', 'essentially' or 'in the main'. The submissions for the Minister that the words 'wholly or substantially reliant' in para (a)(i) should be read, in effect, as meaning only reliant on one other person to the exclusion of any other (even if not wholly reliant on that other person), alternatively at least reliant to an extent that is more than 50% should be rejected.
Nor is there a definition of the phrase substantial period, but in the context in which substantial is used in reg 1.05A it has been held that it should be understood to mean a lengthy period: Huang (above) at [43].
To return to the history of the matter, on 6 December, 2018 the applicant applied to the second respondent for review of the delegate’s decision. On 10 January, 2020 the applicant attended a hearing convened by the second respondent. Her mother and the sponsor also attended and gave evidence. The applicant provided submissions and several hundred pages of evidence to the second respondent on the day of the hearing. On 16 January, 2020 the applicant provided more submissions and evidence.
On 29 January, 2020 the second respondent affirmed the delegate’s decision on the basis that the applicant did not meet cl.820.311(a)(i) or cl.820.321 of the Regulations.
The second respondent considered that the dispositive issues were whether the applicant was a dependent as defined in reg.1.05A(1) of the Regulations on the date on which the visa application was lodged (22 August, 2016) and the date of the second respondent’s decision and for a substantial period immediately before each of those dates. The applicant does not now suggest that the second respondent was in error in defining the dispositive issues in those terms.
The second respondent described the applicant as evasive, hesitant and an unconvincing and unreliable witness.
The second respondent found that in 2018, the sponsor made payments for the applicant’s medical insurance and some of the applicant’s mobile phone costs and between 2016 and 2018, she shared in the benefits of her mother’s and the sponsor’s expenditure described as “food”, “petrol”, “medical”, “mobile”, “medical cover”, “utility” and “furniture” on their bank statements. However, the second respondent did not consider that this demonstrated that the applicant was financially dependent on her mother and the sponsor for her basic needs at those times.
The second respondent was satisfied that at the time of the visa application, the applicant lived in the house of her mother and the sponsor rent-free. However, it rejected as implausible the sponsor’s claim that he gave the applicant $200 per week “for her expenses” because the applicant was earning $300 - $350 per week and was living rent free. Her bank statements show her meeting her needs for food transport and clothing from her earnings.
The second respondent found that the applicant earned income by working after finishing her studies and prior to her arrival in Australia in June, 2016. The second respondent considered that the applicant’s weekly earnings of $300 to $350 from October, 2016 were sufficient to meet her basic needs. The second respondent did not accept that she had been financially dependent on her mother since birth and also dependent on the sponsor since 2012. The second respondent found that the applicant was not wholly or substantially reliant on her mother or the sponsor for food, clothing, or accommodation at the time of the visa application and for a substantial period before the application.
Turning to the period after the visa application was lodged, the second respondent recorded that between 2017 and January, 2019, the applicant earned an income of $600 to $720 per fortnight, which was sufficient to meet her basic needs for food, shelter and clothing. Given her mother and the sponsor only made two payments ($800 and $600) labelled “rent” between April and October, 2018 the second respondent did not accept that from early 2018, the applicant was wholly or substantially reliant on her mother and her sponsor. Further, the second respondent found that the applicant’s spending behaviour from December, 2016 to December, 2018 supported a finding that she had not been financially dependent on her mother and the sponsor.
The second respondent recorded that the evidence demonstrated that the applicant’s last salary payment was in January, 2019. Since that time, her mother and the sponsor have transferred $400 a week and there have been few cash deposits or withdrawals noted in the statements for the applicant’s account. The second respondent thought that this could be taken to indicate that the applicant was financially dependent upon them, however, the second respondent then recorded the following:
38. The Tribunal did not find the applicant a credible witness in the issue of her employment and student history, and notes that the parties on their own acknowledgement have dealt in cash. The Tribunal considers the applicant may have taken earnings in cash in 2019 and 2020. The Tribunal further considers in this case, for the further reasons set out below, that if the applicant has in fact been earning nothing at all while she studies full-time for a Diploma in Leadership and Management and is dependent at the time of decision on her mother and step-father to meet her basic needs, this situation is a departure from her normal life and a contrivance for the purpose of the visa application.
The second respondent then turned its mind to the question of whether the applicant had been a full-time student. The second respondent found that the applicant’s full-time studies were a departure from her normal life and were contrived for the purposes of the visa application. It reached that conclusion based upon the lack of academic progress or any demonstrated need or desire to obtain qualifications. The second respondent concluded that if the applicant was dependent on her mother and the sponsor at the time of the second respondent’s decision, the dependency was not genuine:
46. The Tribunal is concerned that the applicant is claiming to be studying at the time of decision in order to appear dependent, rather than being dependent because she is a genuine student. As noted, the Tribunal found the applicant hesitant and evasive when questioned about her study and work history, and did not find her a reliable witness. The Tribunal considers that if the applicant is, in fact, dependent on her mother and step-father at the time of decision, the parties have artificially created the circumstances of this dependency.
Cognisant that it needed to be satisfied that not only was the applicant dependent at the time of its decision, it also had to determine whether she was dependent for substantial periods immediately before the decision. It acknowledged that departmental policy prescribed that a “substantial period” was 12 months, however, in circumstances where three and a half years had elapsed since the visa application was made and in light of its findings on the applicant’s studies and employment, the second respondent found that it was appropriate to depart from the policy and instead consider the applicant’s circumstances eighteen months, or even two years, before its decision.
The second respondent concluded that the applicant was not a dependent on which the visa application was lodged. It concluded that she was not a dependent for a substantial period before the date on which the visa application was lodged, nor for a substantial period before the date on which the second respondent made its decision. The second respondent therefore concluded that the applicant did not meet cll.820.311(a)(i) or 820.321 of the Regulations and affirmed the decision under review.
THE APPLICATION FOR REVEIW
The application to this court filed on 28 February, 2020 contains five grounds of review. However the applicant now only presses three of those grounds. Grounds 1, 3 and 5 are pressed. Grounds 2 and 4 were abandoned by the applicant in her Counsel’s written submissions although in her submissions, Counsel suggested that grounds 2 and 3 might be combined.
Before moving to examine the grounds in turn, it is necessary to address an argument advanced by the first respondent to the effect that even if the applicant’s argument are correct, her application must nevertheless be dismissed. The argument has merit.
To succeed in her application, the applicant had to satisfy the second respondent that she was a dependent at two particular points in time. The first was the date upon which she made her application. The second was the date upon which the second respondent decided the application. In addition, she needed to establish that she had been a dependent for two periods, both described as a substantial period up to each of the relevant points in time. If she failed to satisfy the second respondent that she was a dependent on either of those dates or for either of those periods her application necessarily failed.
Ground one of the application to this Court concerns the second respondent’s findings about the applicant’s dependency as at the time of the application and for a substantial period immediately before that time. Grounds 2 and 3 are also directed to the second respondent’s findings about the applicant’s dependency at the time of the application and a substantial period immediately before the time of the application. Ground 3 is directed to the second respondent’s finding about the applicant’s dependency at the time of decision, but does not seek to impugn its finding about dependency for a substantial period before the time of decision. Ground 5 is also directed to the second respondent’s findings about the substantial period immediately before the time of the application.
None of the grounds attack the second respondent’s findings about the applicant’s dependency (or lack of it) at the time of decision. That finding was expressed in [48] of the second respondent’s reasons:
48. The Tribunal notes that it is not bound by Departmental policy and in the circumstances of this case, where three and a half years have elapsed since the time of application; where there is no convincing evidence that the applicant has genuinely engaged in full-time study in Australia; and where the applicant has been actively engaged in employment, the Tribunal considers a substantial period immediately before the time of decision to be eighteen months or even two years. The Tribunal has found on the evidence provided that the applicant was employed from October 2016 to January 2019, and that she earned sufficient income during 2018 (and during previous years) to meet her basic needs of food, clothing and shelter. Therefore, the Tribunal finds that the applicant was not for a substantial period immediately before the time of decision financially dependent on her mother and step-father.
None of the grounds of review, nor the particulars to them, seeks to challenge the second respondent’s finding about the applicant’s lack of dependency for a substantial period up to the date of the second respondent’s decision. Without a successful challenge to that (as well as the two point in time requirements and the other substantial period of reliance requirement, the application must fail. I so find. The application should be dismissed on that basis alone.
Nonetheless, in the event that I am in error about that conclusion, I have considered the applicant’s grounds as set out in her application for review.
Ground 1
Ground 1 of the application is in the following terms:
1. The Second Respondent's findings were not based on probative evidence and were unreasonable.
Particulars
(a) At paragraphs [26] and [49] of the Decision Record, the Tribunal made a finding that the applicant was not at the time of application, and had not been for a substantial period immediately before that time, financially dependent on her mother and step father because she had worked and received some income after finishing her studies and arriving in Australia in June 2016. It failed to have regard to the evidence that she was a full time student until April 2016 and did not work or earn an income at all, resided with her mother during in studies in Hanoi and with her mother and sponsor in Malaysia and Harvey Bay (sic) until February 2018, and at all time prior to the application only did work experience and a short stint as an interpreter.
(b) At paragraph [43] of the Decision Record, the Tribunal did not accept that the applicant has been a genuine full time student in Australia because she had not obtained a qualification, failing to properly consider that she had been enrolled and completed in an English course for the period 07 February 2017 to 08 December 2017, completed one year of a Diploma of Accounting for the period from 05 February 2018 to 14 December 2018 and had passed 3 of 9 subjects in a Diploma of Leadership and Management in Brisbane since 4 March 2019.
The applicant argues that a number of critical findings of fact made by the second respondent were affected by legal unreasonableness of the type identified by Crennan and Bell JJ in an oft cited passage in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. The particulars to this ground purport to identify two particular findings. The first is that the applicant was not at the time of application, and had not been for a substantial period immediately before that time, financially dependent on her mother and step-father. However, the second respondent made no such finding. What the second respondent said was:
26. The Tribunal found the applicant evasive, hesitant and unconvincing at hearing, did not find her a reliable witness, and did not accept her claim that she has been financially dependent since her birth on her mother and since 2012 on her mother and step-father.
…
28. The Tribunal therefore does not accept that the evidence shows the applicant was, as a matter of fact, wholly or substantially reliant financially on her mother and step-father to meet her basic needs for food, clothing and accommodation, at the time of application and for a substantial period before this time.
…
49. For the above reasons the Tribunal does not find that the applicant was at the time of application, and had been for a substantial period immediately before that time, financially dependent on her mother and step father; and does not find that she was financially dependent on her mother and step-father for a substantial period before the time of this decision.
The first finding upon which the applicant bases this ground is not a finding at all but an expression by the second respondent that it does not accept the applicant’s evidence or her claims. The applicant argues in the particulars to this ground that the second respondent failed to have regard to the evidence she has set out in the particulars. On that basis, it is said that the second respondent’s decision was unreasonable.
However, her argument has no substance because the second respondent’s reasons demonstrate that it understood the matters to which the applicant says the second respondent paid no attention. It recorded when the applicant graduated, the times that the applicant worked and where and with whom she lived. In doing so, although the second respondent may not have spelled it out in terms, it acknowledged the very matters particularised by the applicant in this ground.
I accept the first respondent’s argument that reading the second respondent’s reasons for decision without “an eye keenly attuned to error”, it is apparent that it defined the “substantial period immediately before” the visa application for the purposes of cl 820.311(a)(i) as commencing from the date on which the applicant finished her studies in Hanoi and in doing so acknowledged that:
(a)until that time the applicant was a full-time student (there was no material to the contrary);
(b)did not earn an income or work at that time; and
(c)resided in Hanoi.
I accept the first respondent’s submission that defining the relevant substantial period in that way was reasonable, given that her studies ended in 2015, a year before the visa application was lodged. That she was residing with her mother during her residence in Hanoi is not particularly relevant in those circumstances and I accept that in those circumstances the omission of any reference to the applicant residing with her mother in Hanoi before she went to Malaysia and thereafter Australia is because it should be sensibly seen as a matter considered by the second respondent but not mentioned because it was not material: cf Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34].
The second finding nominated in this ground is said to be contained within [43] of the second respondent’s decision:
43. For the reason that the applicant has not obtained any qualification, even at certificate or diploma level in Australia during three and a half years of claimed full-time study, the Tribunal does not accept the applicant’s claim that she has been a full-time student.
This too, is not a finding but the expression by the second respondent about its lack of satisfaction about a particular matter. The factual basis for the second respondent’s statement is correct - the applicant did not obtain any qualification at any level in Australia during three and a half years of asserted full-time study. Whilst it is true that the applicant had attended some courses, none were completed aside from an English course for which there was no relevant qualification awarded.
The applicant’s written submissions do not focus upon this ground as particularised. Rather they focus on some other matters in respect of which no leave was sought or granted. In circumstances where the applicant is legally represented, has the benefit of counsel in this hearing and despite objection being taken to the new matters raised in her written submission did not seek leave to add further grounds or particulars to those set out in her application, the applicant should be held to the grounds of review articulated in her application for review.
Nonetheless, I shall address them briefly. The applicant argues that the second respondent concluded that the applicant was, as a matter of fact, receiving undeclared “cash” earnings over the course of more than a year. However, the second respondent made no such finding. After analysing the applicant’s bank statements, certain purchases and other spending by her and considering her evidence about these matters, the second respondent said this (my emphasis):
37. The applicant’s bank statements provided to the Tribunal show that the last ‘Pymt” of AUD 315 (down from AUD 360 weekly in October and November) deposited into her account was on 2 January 2019; that since this time the applicant’s mother and stepfather have transferred AUD 400 a week into the account; and that few cash deposits or withdrawals are shown since this time. The Tribunal acknowledges that this evidence could be taken to demonstrate that the applicant is financially dependent at the time of decision and for a period immediately before. The Tribunal acknowledges that under the current definition in r.1.05A the construction of ‘dependent’ does not carry the implication of the notion of necessity or lack of choice.
38. The Tribunal did not find the applicant a credible witness in the issue of her employment and student history, and notes that the parties on their own acknowledgement have dealt in cash. The Tribunal considers the applicant may have taken earnings in cash in 2019 and 2020. The Tribunal further considers in this case, for the further reasons set out below, that if the applicant has in fact been earning nothing at all while she studies full-time for a Diploma in Leadership and Management and is dependent at the time of decision on her mother and step-father to meet her basic needs, this situation is a departure from her normal life and a contrivance for the purpose of the visa application.
I accept the applicant’s submission that whilst the applicant and her witnesses acknowledged that they have dealt in cash, there was no evidence before the second respondent to the effect that the applicant had ever received income from her place of employment in cash. But the second respondent made no such finding. At best it could be said that the second respondent engaged in speculation about a matter that it did not consider critical to the determination that it made. The irrelevance of the so-called finding is demonstrated by that part of [38] that I have emphasised above. The second respondent determined that if the applicant had in fact been earning nothing at all while she studied full-time for a Diploma in Leadership and Management and was dependent at the time of decision on her mother and step-father to meet her basic needs (as was her case), the situation was a departure from her normal life and a contrivance for the purpose of the visa application. Such a finding was fatal to the applicant’s application, irrespective of the finding about her taking cash income. Far from such a conclusion importing an assumption as to the applicant’s “normal life” which was not expressed and lacked any discernible basis, the second respondent’s reasons are replete with its careful analysis of the applicant’s banking statement, and financial position. There was a careful examination of these matters and the conclusion reached by the second respondent as plainly open to it. That some other decision maker might not have made the same decision is not to the point.
The applicant also argues that the second respondent’s statement at [43] that:
For the reason that the applicant has not obtained any qualification, even at certificate or diploma level in Australia during three and a half years of claimed full-time study, the second respondent does not accept the applicant’s claim that she has been a full-time student.
is an irrational finding given the evidence before the second respondent that the applicant:
(a)attended an English course at TAFE Queensland for the period 7 February 2017 to 8 December 2017, at a cost of $1,260;
(b)completed one year of a Diploma of Accounting at the Brisbane College of Australia, for the period 5 February 2018 to 14 December 2018, for a total tuition fee of $9,850 (and text-book fees of $550 and an initial pre-paid tuition fee of $4,952);
(c)achieved competencies in these subjects in her Diploma of Accounting: ‘preparing financial reports’, ‘reporting on financial activity’ and ‘implement and monitor WHS policies, procedures and programs to meet legislative requirements’;
(d)completed a Diploma of Leadership and Management in Brisbane from 4 March 2019 to 8 March 2020,33 at total course cost of $6,400;34; and
(e)was assessed as having fulfilled requirements for the Diploma of Leadership and Management on 21 November 2019.
The difficulty with this argument is that for the reasons submitted by the first respondent’s counsel at the hearing before me, these assertions are simply not made out on the evidence. The documents identified by the applicant as supporting those claims do not support them, either on their face or by implication. This challenge fails at a factual level.
Ground 1 does not reveal any jurisdictional error.
Grounds 2 and 3
Grounds 2 and 3 of the application are in the following terms:
2. Alternatively, the Tribunal erred by failing to consider the evidence regarding the Applicant's substantial reliance on her mother and sponsor for basic needs of food, shelter and clothing at the time of the application and a substantial period immediately before the time of the application.
Particulars
The Second Respondent failed to have regard to the evidence that the Applicant was a full time tertiary student between 2012 and November 2015, and studying English full time between November 2015 and April 2016. She did not work or earn an income at all during this period and only did some work experience April - June 2016. She lived with her mother and step father at all relevant times during this period.
3. The Tribunal failed to correctly apply the terms of r.1.05A(l) in considering whether the applicant was wholly or substantially reliant on her mother and sponsor at the time of the application and time of decision to meet her basic needs for food, clothing and shelter, and whether her reliance was greater than her reliance on any other person or source.
Particulars
The Second Respondent wrongly approached the question of whether the applicant was wholly or substantially dependent on her mother and sponsor on the basis of necessity and wrongly took a mathematical approach. It over focused on the Applicant's part time income and did not consider whether her reliance on her mother and sponsor was greater than her reliance on salary from employment to meet her basic needs. This reveals error because it is not the mere receipt of support or income but the dependence or reliance upon another to provide support that is determinative. This was an error.
As I have indicated above, the applicant contends that grounds 2 and 3 ought to be dealt with together. The applicant does not now press ground 2 as a stand-alone ground.
By these two grounds the applicant argues that the second respondent failed to correctly apply reg.1.05A(1) of the Regulations and in so doing, committed jurisdictional error. She argues that the second respondent “approached its statutory task through the lens of necessity”. By way of example, she points to the following paragraphs of the second respondent’s reasons:
[32] The Tribunal finds, on the evidence provided, that the applicant earned an income of around AUD 600 to AUD 720 a fortnight in 2017 and 2018 and up to January 2019, sufficient to meet her basic needs for food, shelter and clothing. Based on the evidence of the applicant’s earnings, and that she paid for clothes, transport, food and (from early 2018) for rent out of her earnings deposited into her bank account, the Tribunal does not accept that she has been wholly or substantially reliant on her mother and/or stepfather to meet her basic needs for food, clothing and shelter.
…
[45] The Tribunal does not accept that the applicant has been financially wholly or substantially dependent on her mother and step-father for the claimed reason that she has been engaged in full-time study. The Tribunal finds, as noted, that on the documentary evidence provided, the applicant has been in employment in Australia since October 2016, and that she was in employment throughout 2017 and 2018 and up to January 2019. The Tribunal has found the applicant’s declared income over this period sufficient to meet her basic needs for food, clothing and shelter.
…
[48] …The Tribunal has found on the evidence provided that the applicant was employed from October 2016 to January 2019, and that she earned sufficient income during 2018 (and during previous years) to meet her basic needs of food, clothing and shelter. Therefore, the Tribunal finds that the applicant was not for a substantial period immediately before the time of decision financially dependent on her mother and step-father.
She argues that the second respondent has reasoned that because the applicant had earned “sufficient income” for her “basic needs”, she was not “dependent” as defined in reg.1.05A(1). However, she argues that the question is not whether the applicant had to rely on her mother for support for her basic needs, but whether she was in fact so reliant. She argues that the passages extracted above demonstrate that the second respondent repeatedly asks: “Can the applicant afford to meet her basic needs for food, shelter and clothing?” Doing so, she argues, fails to comprehend the tasks set for it by reg.1.05A(1).
So what was the statutory task set for it by reg.1.05A(1)? Initially, the task was to determine, as a matter of fact, whether the visa applicant was reliant upon another person for financial support to meet her basic needs for food, clothing and shelter at the relevant time and for a substantial period immediately before that time. In Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122 the plurality ( Lander & Rares JJ) said:
28. When one turns to reg 1.05A(1) it is noticeable that it prescribes clear objective criteria to be met for dependence to be established. First, reg 1.05A(1) stipulates that the child (who is the ‘first person’ for present purposes) must be at the time at which consideration as to his or her position is being given, ‘wholly or substantially’ reliant on the parent for financial support. Secondly, that degree of reliance is required to have been ‘for a substantial period immediately before that time’. Thirdly, the financial support being provided must be to meet the child’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the child’s reliance on the parent must be greater than his or her reliance on any other person or source of support for financial support to meet those three basic needs.
No question of necessity arises when considering whether the requirements of reg.1.05A(1) are met: Huynh at [43]:
By leaving the question of dependence or reliance to be a question of fact untrammeled by the implication of the notion of necessity, the Regulations will be able to be interpreted across the broad range of circumstances to which they relate. In our opinion on their proper construction it is not the case that the child must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the parent for the relevant financial support.
In the present case the second respondent recognised these principles:
37. … The Tribunal acknowledges that under the current definition in r.1.05A the construction of ‘dependent’ does not carry the implication of the notion of necessity or lack of choice.
The second respondent’s reasons demonstrate that it understood the question for determination is one of fact having regard to the evidence that was placed before it by the applicant. The second respondent’s reasons demonstrate that it considered that evidence. It considered the claims made by the applicant, her mother and stepfather against the documentary evidence was available including the applicant’s bank statements. It recited the evidence before it and according to its reasons made factual findings as to that evidence. It cannot be ignored that the tribunal formed a very poor view of the applicant’s credibility. The second respondent found the applicant evasive, hesitant and unconvincing in her evidence. It did not find her to be a reliable witness. Ultimately, the second respondent concluded that the applicant was not reliant upon her mother or stepfather in the ways required by reg.1.05A(1) of the Regulations at the time of her visa application or for a substantial period before that. Nor was the second respondent satisfied that the applicant was reliant upon her mother or stepfather at the time of the second respondent’s decision or for a substantial period of time prior to that. The second respondent made an express finding that certain payments reflected in the applicant’s bank statements were made by the applicant’s mother and stepfather so as to contrive the appearance of dependence.
I do not accept that a fair reading of the second respondent’s decision record reveals that the second respondent failed to properly apply the proper criteria in reg.1.05A(1) of the Regulations. The second respondent’s reasons, and the paragraphs to which the applicant has specifically drawn my attention, reveal that the second respondent gave active intellectual consideration to the evidence before it. The second respondent’s reasons demonstrate an analysis of the evidence against the claims made by the applicant. The applicant complains (in the particulars to this ground) that the second respondent erred by “wrongly [taking] a mathematical approach” and “over focus[ing] on the applicant’s part time income”. But a consideration of these matters is not demonstrative of the application of a wrong test, but rather an analysis of the evidence before the second respondent against the applicant’s claims. Examining the applicant’s means and specifically, what was available to her by way of income and what it was that she spent her income on, was a legitimate forensic exercise on the part of the second respondent to test the applicant’s claim and that of her mother and stepfather that she was reliant upon them. On a fair reading of the second respondent’s reasons, that exercise was not directed to determining whether the applicant required the financial assistance of her mother or stepfather but rather, was directed to the question of reliance more generally. In the result, the second respondent could not be satisfied that the applicant’s claims about reliance were made out.
This ground does not reveal jurisdictional error in the approach taken by the second respondent to the determination of the matters before it.
Ground 5
This ground is in the following terms:
5. The Tribunal failed to determine the 'substantial period' of reliance immediately before the time of the application, or alternatively, by inferring that the substantial period commenced after her graduation in late 2015.
Particulars
(a) At paragraphs [26] and [49] of the Decision Record, the Tribunal made a finding that the applicant was not at the time of application, and had not for a substantial period immediately before that time, been financially dependent on her mother and step father.
(b) The Second Respondent did not define the substantial period of reliance immediately prior to the time of the application, and did not include any period prior to November 2015.
(c) In doing so, the Second Respondent committed a jurisdictional error by failing to correctly understand and apply the terms of r.1.05A.
The issue raised by this ground review is whether the second respondent was obliged to identify a particular period of time as the “substantial period” of reliance necessary to engage reg.1.05A(1). The applicant argues that it was necessary for the second respondent to determine or define the relevant “substantial period” of reliance immediately before the time of the application, it did not do so and accordingly failed to perform its statutory task by failing to determine the “substantial period”.
I do not consider that the second respondent was obliged to identify a particular period as the “substantial period” of time in respect of which there was reliance sufficient to engage reg.1.05A(1) if its reasons demonstrate that the second respondent turned its mind to that issue. If a particular period of time was required, the regulation would specify that period of time. Clearly, what might be a relevant substantial period of time having regard to one set of facts may not be sufficient having regard to the facts of another application.
I do not accept the applicant’s argument that the second respondent’s reasons demonstrate that it fundamentally misunderstood this aspect of reg.1.05A(1). What the second respondent’s reasons do is to refer to particular reference points in time identified by the applicant as significant. It did so by reference to the time at which the applicant’s mother and step-father formed a relationship (2012). It also considered a period commencing with the applicant’s graduation in late 2015. Its approach was consistent with departmental policy as to the appropriate length of a substantial period in circumstances where the visa application was lodged in 2016. At [47] the second respondent expressly said:
47. The Tribunal acknowledges that the issue to be determined is whether the applicant was as a matter of fact wholly or substantially dependent at the time of application and decision and for substantial periods immediately before these times. The Tribunal acknowledges the Departmental policy guideline that a substantial period is twelve months.
The second respondent’s reasons demonstrate that, consistent with the departmental policy, its consideration of reg.1.05A(1) and cl 820.311(a)(i) focused on a period commencing from the applicant’s graduation from her studies in 2016. The finding at [26] concerning the applicant’s credit led to the second respondent refusing a claim that she had been financially dependent since birth on her mother and since 2012 on her mother and stepfather.
In any event, the applicant’s argument in respect of this ground cannot succeed because the tribunal was not satisfied that she was, at the time of her visa application, reliant upon her mother or stepfather for the purposes. In those circumstances the requirement, if there be one, to put precision to the “substantial period” for the purposes of reg.1.05A(1) was devoid of content. The second respondent’s adverse finding under cl.820.311(a)(i) would still not be impugned because the second respondent found that, on the day the visa application was lodged, the applicant was not wholly or substantially reliant on her mother and the sponsor to meet her basic needs.
CONCLUSION
The application for review does not reveal jurisdictional error and must be dismissed with costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 11 August, 2021. Associate:
Dated: 11 August 2021
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