Kavanagh (Migration)

[2018] AATA 2125

Kavanagh (Migration) [2018] AATA 2125 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mr Andrew Gerard Kavanagh
Mrs Xueli Jin

VISA APPLICANT:  Miss Yuting Jin

CASE NUMBER:  1705280

DIBP REFERENCE(S):  OSF2015/069275

MEMBER:Adrienne Millbank

DATE:1 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 01 June 2018 at 4:48pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) visa – Whether the applicant is a dependent child – Applicant over 18 –  Financial dependent on mother – Evidence of money transfers – Lives alone in mother’s apartment – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 309.311, 309.321

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 25 January 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) and a Subclass 100 Partner visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the applicant) applied for the visa on 12 November 2015 on the basis of being a dependent child of the primary applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 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. Relevantly to this matter the secondary criteria include cl.309.311 and cl.309.321 of the Regulations.

3. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.321 because the Delegate was not satisfied that the visa applicant was dependent on the primary applicant at the time the Delegate made the decision.

4. The Delegate accepted that the secondary applicant was a fulltime student from September 2012 to June 2016, and that she was financially reliant on the primary applicant to meet her basic needs during his period. The Delegate was therefore satisfied that the applicant met the requirements of cl.309.311. No evidence was provided however that demonstrated to the Delegate that the applicant continued to be wholly or substantially reliant on the primary applicant to meet her basic needs at the time of the Delegate’s decision.

5. During a telephone interview with the applicant on 6 January 2017, the applicant had advised the Department that she had had temporary jobs: for one month as a graphic designer; and for several weeks in retail, during which time she had stayed at a friend’s house. The applicant stated during this interview that during the time of her employment, she earned enough to cover her basic living and transport costs.

6. Based on this information, the Delegate found that the secondary applicant had been working since graduating from the Shenzhen Institute of Information Technology with a Graduation Certificate in Graphic Design in June 2016. Therefore, the Delegate could not be satisfied that the applicant continued to be substantially reliant on the primary applicant to meet her basic needs for food, clothing and accommodation at the time of the Delegate’s decision.

7. The review applicant appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal also heard oral evidence from the review applicant’s husband, as witness, and from the applicant in China.

8. The hearing was conducted with the assistance of an interpreter in Mandarin.

9. Further evidence was provided on 24 May 2018, following the hearing.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant was born in Shenzhen, China on 9 June 1995.

12. The issue in the present case is whether the applicant is, at the time of this decision, a dependent child of the primary applicant, who was granted a Subclass 309 Partner (Provisional) visa on 25 January 2017.

13. There is no evidence or information before the Tribunal to indicate that the applicant was not a dependent child of the primary applicant at the time of application, as found by the Delegate. The Tribunal is therefore satisfied that the applicant meets cl. 309.311.

14. At hearing the review applicant and the applicant stated that the employment the applicant engaged in late 2016 and in early January 2017 was, in the case of her graphic design work a short extension of her internship, and in the case of her retail work casual employment for only several weeks during the holiday period leading up to Chinese New Year when she earned little more than pocket money. In 2017 the Chinese New Year finished on 28 January. They advised that the applicant stayed with her friend for only a week, rent-free during the time of her employment, and she did so because her friend’s apartment was closer to the shopping mall where she obtained the casual shift work.

15. The parties claimed that the applicant has engaged in no paid employment since 28 January 2017, and that since this time she has been wholly dependent financially on her mother. There is no evidence or information before the Tribunal to indicate that she has been in paid employment since January 2017, or received income from any other source. Evidence was provided in the form of statements from the applicant’s bank account and copies of WeChat messages, that the review applicant transfers around $400 a month for the applicant’s living expenses; around $300 every few months for utilities; and further amounts, irregularly, for unanticipated expenses.  They confirmed that the applicant received no other income from any other source.

16. At hearing the review applicant advised that since she came to Australia on her Partner visa, the applicant has been living alone in the apartment which the review applicant still owns, but intends to sell. She stated that she has travelled back to Shenzhen every six months to spend time with her daughter.

17. Evidence was provided that the applicant has undertaken a number of English language courses in China in 2017 and 2018. At hearing the review applicant stated that the applicant’s goal is to do well on the IELTS test, in preparation for studying at an Australian university. When asked at hearing how she occupied her time when not doing coursework, the applicant stated that she studied alone and hung out with friends. Evidence was provided that the applicant successfully completed her Graphic Design studies at the   Shenzhen Institute of Information Technology, and that she has been offered a bursary from the James Cook University in Queensland, where she was enrolled in a Bachelor of Business Studies from March 2018 to 2020.

18. On the evidence provided, the Tribunal finds that at the time of decision the applicant has, since February 2017 (a period of 15 months), been wholly or substantially financially reliant on the primary applicant to meet her basic needs. The Tribunal finds this a substantial period of time.

19. On the evidence provided the Tribunal is satisfied that at the time of decision the applicant continues to be a member of the family unit of her mother, a person who is the holder of a Subclass 309 Partner (Provisional) visa. The applicant has turned 18 and the Tribunal is satisfied that at the time of this decision she is, and has been for a substantial period immediately before, wholly or substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter; and that her reliance on her mother is greater than her reliance on any other person or source of support for financial support to meet her basic needs for food, clothing and shelter.

20. The Tribunal notes that the applicant will turn 23 on 9 June 2018. As the application was lodged on 12 November 2015 this decision, even if made after this date, would not be affected by the amendment to the definition of Member of the Family Unit that applies to applications for visas made on or after 19 November 2016.

21. 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 309 (Partner (Provisional)) visa.

    DECISION

22. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations.

    Adrienne Millbank
    Member