Koblitz (Migration)

Koblitz (Migration) [2021] AATA 476 (19 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Gerd Koblitz
VISA APPLICANT:  Miss Thuy Duong Tran
CASE NUMBER:  1802530
DIBP REFERENCE:  BCC2016/1289000
MEMBER:Rosa Gagliardi
DATE:19 January 2021
PLACE OF DECISION:  Australian Capital Territory

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

·
cl.309.311 of Schedule 2 to the


Regulations; and
·
cl.309.321 of Schedule 2 to the


Regulations.

Statement made on 19 January 2021 at 2:15pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of the family unit – dependent child – over 18 years of age – incapacitated for work due to the total or partial loss of mental functions – mental health condition – PTSD – wholly or substantially reliant on primary applicant for basic needs – ‘boyfriend’ in Singapore – not a de facto relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; 1.12; Schedule 2, cls 309.311, 309.321
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 December 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 27 March 2016. The delegate refused to grant the visa on the basis that the applicant was not dependent on another person (her mother) for a period immediately before the time of application, for financial support to meet the applicant’s needs for food, clothing and shelter, among other things.
The review applicant, the applicant’s step-father, Mr Gerd Koblitz, appeared before the Tribunal on 24 September 2020 to give evidence and present arguments. The applicant’s mother, as the spouse of Mr Koblitz, also appeared. In addition, the Tribunal took evidence from the applicant. The Tribunal also received oral evidence from Mr Holger Koblitz, the review applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant continue to be a member of the family unit
Clause 309.321 requires that at time of decision the applicant continues to be a member of the family unit of a person, who having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa.
309.321
The applicant:

(a) continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria): or

(b) is a person to whom each of the following applies:


(i) the person made a combined application with the person who satisfies


the primary criteria;.


(ii) subsequent to the combined application being made, the person was


found by the Minister not to be a member of the family unit of the person


who satisfies the primary criteria;


(iii) subsequent to the person who satisfies the primary criteria being


granted a Subclass 309 (Partner (Provisional)) visa and Subclass 100


(Partner) visa – the Migration Review Tribunal found the person to be a


member of the family unit of the person who satisfies the primary criteria.
The definition of “member of the family unit” is set out in Regulation 1.12:
Reg 1.12 Member of the family unit

1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub-regulations 2, 2A, 6 and 7, a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:

(a) a spouse or de facto partner of the family head; or

(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

…..(omitted)

(e) a relative of the family head or of a spouse or de facto partner of the family head who:


(i) does not have a spouse or de facto partner; and


(ii) is usually resident in the family head’s household; and


(iii) is dependent on the family head.
‘Dependent child’ is defined in regulation 1.03 as follows:


           Reg 1.03
Dependent child,


of a person, means the child or step-child of the person (other than a child


who is engaged to be married or has a spouse or de facto partner), being a


child who:


(i) has not turned 18; or


(ii) is incapacitated for work due to thee total or partial loss of the


child’s bodily or mental functions.
‘Dependent’ has the meaning set out in Regulation 1.05A:
Reg 1.05A
Dependent

1.05A (1) Subject to sub-regulation (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 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.
FINDINGS AND REASONS
The applicant must meet the time of application requirements (cl.309.311) and the time of decision requirements (cl.309.321).
The applicant has submitted a birth certificate and other evidence demonstrating that the applicant is the biological child of her mother (the primary applicant) who was granted a subclass 309 visa. This matter was not in contention at the time of application and the Tribunal is similarly satisfied that the applicant is the biological child of the person granted the subclass 309 visa. The personal information revealed to the Tribunal at hearing also reinforced this view.
The applicant was born on 12 July 1993 and is currently 27 years of age. At the time the Department made its decision the applicant was 23. The applicant therefore is not in a position to meet 1.03(a) as she is over 18 years of age and was so at the time of application.
The Tribunal notes that at hearing the migration agent intimated that the applicant may be incapacitated for work due to the total or partial loss of her mental functions, and that the visa ought to be granted on this basis. Several reliable psychiatric and medical reports have been submitted to the Tribunal demonstrating that the applicant struggles with a range of mental health issues which affect her ability to remain in employment and that several emotional issues are long-standing and limit the applicant to this day. To give an insight into the applicant’s history, she has been diagnosed with PTSD from “childhood trauma from dislocation and culture migration”. The applicant had a difficult childhood and adolescence as a result of her own mother’s mental health difficulties and alienation from her father.
Nonetheless, the Tribunal is not satisfied that any of the medical evidence submitted purports to indicate that the applicant is incapacitated for work due to the total or partial loss of her mental functions. Indeed, the applicant has in the past worked, albeit for brief periods. The applicant has not attained tertiary qualifications due to her mental health conditions and was not able to graduate or attain a stable job in her field of interest. At best, her work could be described as peripatetic, and she experienced periods without any work at all. Even this being the case, however, the Tribunal is not satisfied, on the evidence, that the applicant has been given any explicit diagnosis that she is incapacitated for work.
In a recent psychiatric report, dated 13 January 2021, the writer stated that the applicant was in “remission” in relation to one aspect of her illness. Hence, while the Tribunal finds that the applicant’s background and psychological history explain her inability to function in a work place for any meaningful period, the Tribunal does not accept that the applicant does not have the potential to gain some stability and health to be able to one day maintain full-time work. The applicant has currently also demonstrated a willingness to seek sustained medical assistance even though she has opposed medication for her condition.
Given the applicant’s condition is as her psychiatrist put it “evolving”, the Tribunal is not satisfied that the applicant meets the requirements for dependency as set out under regulation 1.03(b)(ii). The health requirements were not a live issue at the time of application as the Department found that regulation 1.03(b)(ii) did not apply to the applicant because she had been assessed by Medical Officers in Australia for migration purposes and had met the requirements.
As the applicant has not met the requirements of 1.03(i) or 1.03(b)(ii), the Tribunal is required to assess whether she meets regulation 1.05A to be satisfied that the applicant is dependent on, in this case, her mother, the primary applicant, Ms Thi Thu Anh Vu (as the spouse of the review applicant), for financial support to meet her basic needs for food, clothing and shelter. In addition, the applicant’s reliance on the primary applicant for this financial support must be greater than her reliance on any other person or source of support.
Reg 1.05
In making its decision, the Department relied on two matters:
· Her biological father’s household where the applicant was registered; and
· A phone interview with the applicant conducted on 24 November 2016.
The Tribunal had the benefit of undertaking a lengthy hearing with a range of witnesses in which the applicant’s psychiatric history was revealed and evidence tendered about how her conditions impaired her ability to work to maintain herself.
To understand the applicant’s circumstances the Tribunal considers that it is helpful to set out the applicant’s background and history.
The applicant is a national of Vietnam. Her mother during her adolescence spent some years studying in China and was also able to obtain some work there. The applicant’s mother stated that she had felt unable to care for her children (the applicant and a younger brother) during this time and her relationship with their father had broken down. It was in China that she met her current husband.
During the applicant’s mother’s absence, the applicant was left mostly in her father’s household. Her father at that stage had started a new life and the applicant did not adjust to the situation, experiencing abandonment and isolation. The applicant’s mother at this time was providing some assistance to the applicant, although during this period, the applicant was substantially being supported financially (if not emotionally) by the applicant’s father. This period of the applicant’s life is not relevant for the purposes of the review, however.
The test is whether an applicant has been wholly or substantially reliant on her mother ‘for a substantial period before that time’. Before that time, according to policy, refers to a period prior to application. ‘Substantial period’ refers to approximately two years. The application for the visa was made by the applicant on 27 March 2016, and hence the relevant period would cover the two-year period before 2016, commencing in March 2014.
During the phone interview with the Department in November 2016, the applicant stated she had been working in freelance jobs since 2014 given she had been terminated at a previous internship where conflict arose due to the applicant’s mental health problems, resulting in her not being permitted by her education provider to progress through to graduation.
To deal with the disappointment of having failed her studies and without prospects of a career in Vietnam, and with the encouragement and support of her mother, the applicant started to travel. When she was interviewed by the Department, the applicant stated that she had her own website, was a travel blogger, and a freelance photographer. The applicant told the Department she had earned some money from her work, albeit the work was desultory. She had also been paid for her internship in Europe prior to having a falling out with the employer and being cancelled from her studies.
The test, however, is not whether the applicant has ever worked, rather it is whether she was wholly or substantially reliant on her earnings to survive, given the applicant had travelling expenses as well as being in need of shelter and other basic needs. In a blog dated 2014, and contemporaneous with the time the applicant set off on such work away from Vietnam, several bloggers have provided insight into their capacity to live off earnings made as travel bloggers. For example:

·   “I’ve been blogging about travel for five years now and haven’t really even tried to make my blog profitable. It would be nice, but I am torn between what minimal profit I think I could make and how ads and sponsors would change the tone and tenor of the blog….If I could blog full-time and feed my family, I would though”.
·   “Thanks for sharing. It looks easy to start a travel blog, but being able to make enough money to live on each month is tough. Plus there are so many people trying to start travel blogs nowadays that it’s difficult to get your name out there and noticed”.
·   “I think one of the key things about travel blogging, or blogging in general, is not to go in it with the intention of making money. I started my blog just as a personal escape and a way to reflect on the amazing trips I’ve had…”.[1]
[1] How Much Do Travel Bloggers Get Paid? - Global Girl Travels, accessed on 18 January 2021.
It is evident that being a travel blogger/photographer is not, at least as an amateur, a profitable business that is capable of sustaining one’s existence. The applicant on being interviewed by the Department gave an estimate of her average income, however, there was little probative evidence submitted to support her claims that her clients paid her. Nor did the minimal earnings reflect the applicant’s expenses in terms of air and ground travel. At hearing the applicant was clear in stating that she shared her mother’s bank account, during the relevant period, (evidence submitted) on which she relied heavily to substantially meet her basic needs for food, clothing and shelter.
The applicant’s mother at hearing stated that in Vietnam she was a researcher paid by the government and earned a good salary. She had also earned money in China where she met her current husband who provided her with $300,000 to purchase two properties in Vietnam from which the applicant’s mother derives income and which assisted her support her daughter while she was travelling.
The applicant at hearing was also emphatic in giving evidence that her father provided next to no support, financially or emotionally, after she left Vietnam. More recently the applicant went to live in Singapore and had obtained a low paying job but her rental payments and cost of living there were not sustainable without significant support from her mother and husband. It seems that in Singapore, where the applicant lives alone and faces the same challenges regarding keeping a reasonably paid job due to her mental health issues, the applicant has decided to study and continues to be wholly substantially reliant on her mother and her step-father in Australia
The Department also relied on the Household Registration showing that the applicant continued to be on her father’s household in Vietnam. As the applicant pointed out, however, the applicant was registered at her father’s home because she had no other physical dwelling in Vietnam. Furthermore, she had not lived in Vietnam for a lengthy period and the Household Registration did not reflect her travels and movements over the years.
The Tribunal is also satisfied that the applicant is not engaged to be married; married or in a de facto relationship as she had a ‘boyfriend’ in Singapore for a period but never lived with him as she lived in a room on her own, and he never provided her with any financial or other support. Indeed, that relationship gradually became abusive toward the applicant.
As such, the Tribunal is satisfied that the applicant meets the requirements of 1.05A.
The Tribunal is satisfied that at the time of application the applicant met cl.309.311. The Tribunal is also satisfied that at the time of decision the applicant continues to meet cl.309.321.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) Subclass 309 visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Partner (Provisional)(Class UF) Subclass 309 visa:
· cl.309.311 of Schedule 2 to the Regulations; and
· cl.309.321 of Schedule 2 to the Regulations.
Rosa Gagliardi

Member

[2021] AATA 476

19 January 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Remedies