Kozono (Migration)

[2018] AATA 5298

Kozono (Migration) [2018] AATA 5298 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mark Dan Kozono
Mr Keano Steve Kozono

CASE NUMBER:  1709728

HOME AFFAIRS REFERENCE(S):     BCC2015/574455

MEMBER:Michael Cooke

DATE:21 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.311 of Schedule 2 to the Regulations

·cl.820.321 of Schedule 2 to the Regulations

Statement made on 21 November 2018 at 4:27pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – members of family unit – dependent children of primary applicant mother – ‘substantial period’ before and at time of application – employment arrangements – intended to be temporary – reliance on primary applicant for the provision of basic needs – at time of decision – not working and studying full time as intended – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cls 820.311, 820.321

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 and Border Protection to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 21 February 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.321 because the applicants were found not to be dependent on their primary applicant mother at time of decision.

4. The applicants appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and step-father.

5. The parties submitted a comprehensive submission addressing the key issues in the case and in particular the dependency of the applicants on their mother (T1, ff.191-197). The representative also supplied a copious quantity of information proving the applicant’s dependency

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicants were the ‘dependent’ children of their mother both at time of application and decision and for a ‘substantial period’ before time of application.

9. The applicants are required have provided the Tribunal with a trove of additional information not previously available to the delegate.

   Background

10. The primary applicant and her de facto partner commenced their relationship in December 2011. However, it was not until early 2015 that the couple decided it was an appropriate time to move to Australia. The primary applicant mother and step-father had held off arriving in Australia until this time as it was important to her that her younger son, Keano Kazuno, finished his high school education in the Philippines without disruption. Applicant Keano completed high school in January 2015.

11. Mark and Keano Kazuno arrived in Australia with their mother on 30 January 2015. They arrived as the holders of valid Visitor visas and did not have permission to work. The Partner visa application was lodged on 21 February 2015. For reasons outlined above, the applicants maintain they were ‘dependent’ on the primary applicant at this time. Both applicants indicated to their parents that they wanted to continue their studies in the hope of generating better future employment opportunities. They indicated thus clearly in their application forms.

12. Applicant Mark completed high school in March 2011 before enrolling at Manila Tytana College in an Information Technology course between 2011 and 2012 and later Majoring in Hotel Restaurant Management between 2012 and July 2014. Mark also enrolled in a further course at the St John Bosco Institute of Arts & Science in December 2014.

13. However, when the applicants enquired about enrolling in tertiary education courses in Australia they were informed that they would be considered to be overseas students, subject to the overseas student fees which are far greater than they would have been if they were Australian permanent residents or citizens. For this reason, the applicants decided to wait until they had secured permanent residence before commencing their studies, as the education fees would be significantly less. The applicants believed, when considering the Department's published average processing times, they would be able to enrol in 2017. Applicant Mark did explore alternate avenues to getting into an educational institution and applied to enrol with the Australian Army in February 2016, but was ultimately unsuccessful because of his citizenship status.

14. Having been temporarily deterred from commencing their studies as planned, the applicants were left with little to do to fill in their time. The applicants spent their early days in Australia exploring their local area, searching for any sports or social activities they could do. They often found themselves playing soccer and basketball at a nearby park, swimming at the beach or spending time on their computers. This was how the applicants occupied their time while waiting for their visa to be granted and so they could later enrol in university without being subject to the exorbitant overseas student fees.

15. The applicants enquired with their step-father and sponsor in the visa application, Greg Brown, about the possibility of working. Greg in turn made an enquiry with the Department. Greg was informed the applicants had no work restrictions on their Bridging visas and thus could work full-time.

16. The applicants state that between 21 February 2015 (the date of application) and March 2016,Applicant  Mark was not generating enough income to cover his own basic needs, and his reliance on the primary applicant for the provision of food, clothing and shelter was greater than his reliance on any other source of income, including his own. The applicants submit that between 21 February 2015 (the date of application) and June 2016, Applicant Keano was not generating enough income to cover his own basic needs and his reliance on the primary applicant for the provision of food, clothing and shelter was greater than his reliance on any other source of income, including his own.

17. After these respective periods both applicants increased to full time employment.

18. The applicants insist that their working arrangements were only ever meant to be temporary and until the applicants were able to enrol in university as Australian permanent residents. Even throughout the period of full time employment, the primary applicant and her partner financially supported the applicants, providing them with food, clothing and shelter. The intention of the primary applicant and her partner was to allow the applicants to save their money, so that the savings could later be applied towards university fees (at domestic student rates) and to draw from for non-essential expenses, such as socialising with friends and other activities.

19. The applicants have both now commenced their studies, as they had always intended. The Tribunal has been informed that both applicants have decided to cease employment so that they can focus on their studies as they instruct it can be quite demanding and they want to ensure they pass all subjects.

20. Applicant Mark Kozono informs that he had always wanted to study law, however, he was prevented from enrolling in a Bachelor of Law with a Bachelor of Business for two reasons. Firstly, Mark was unable to enrol in a law degree without first completing an ATAR equivalent foundation program. Secondly, the fees to complete the 5 year degree would have amounted to approximately $500,000, a significant expense that was beyond his mother's means. As such, Mark enrolled in his second choice, a Diploma of Business and Commerce majoring in Accounting through the Newcastle International College. Mark enrolled on 26 June 2017.

21. Applicant Mark expects to have successfully completed his Diploma of Business and Commerce, sitting his final exam on 26 September 2018. Subject to successfully passing the final exams, he will be transferring to Newcastle University to complete the remaining two - three years of his Bachelor of Commerce majoring in Accounting and finance when enrolment opens in December. Whilst completing his diploma, Mark found he was spending approximately 25 hours per week in face to face learning or completing personal study.

22. Applicant Keano Kozono is also currently enrolled in a Foundation Program with the Newcastle International College. He hopes this will allow him to get into a Bachelor of Engineering Science or Information Technology. The foundation program was necessary because he did not have an ATAR. He has chosen this course because he wants to pursue a career that involves computer systems or engineering.

23. Applicant Keano expects to have completed his Foundation Program following the final exams he completed in September 2018. Following successful completion of the foundation program, Keano is guaranteed enrolment in a Bachelor of Engineering Science and Information Technology with the University of Newcastle. Whilst completing this course, Keano found how was spending approximately 25 hours per week in face to face learning or completing personal study. A copy of a sample course outline for one of Keano's courses has been provided with these submissions.

24. The issue of the applicants’ employment was the principal reason that the delegate refused them a visa. The Tribunal now has more comprehensive information before it including breakdowns and currency flows to elaborate how the parties were ‘dependent’.  They were both students in the Philippines and patently living at home with their parents prior to arriving in Australia where they remained with their parents initially. At time of application they were on Visitor visas and unable to work. The Tribunal is satisfied that they were ‘dependent’ for a ‘substantial period ‘ prior to the date of application on their mother. They thus satisfy this prerequisite criterion for meeting the definition of dependency in reg.1.05A.

25. The Tribunal is also satisfied (due to the circumstances outlined earlier) that the parties were ‘dependent’ on their mother at time of application.

26. The Tribunal will now assess their dependency at time of decision.

    ‘Basic Needs’

    The applicants maintain that they are entirely financially dependent on their mother to provide them with food, clothing and shelter. They have submitted additional evidence of the dependency expenses (T1, f.190). They are both currently unemployed and studying full time.

    Shelter

27. The applicants currently reside at Merewether Newcastle, in a two bedroom house. The other occupants of the house are their mother, the primary applicant, and their step-father, the sponsor (when he is not overseas for work). The house is leased by the primary applicant and her partner at a cost of $500 per week. The house is located between approximately 20-40 minutes (depending on traffic) from the University of Newcastle campus, being convenient for the applicants and their study commitments.

    Food

28. The primary applicant has estimated she spends approximately $250 per week on food and groceries, with at least half of this going towards feeding the applicants.

    Clothing

29. The primary applicant has estimated she provides each applicant with approximately $1,350 per year for clothing. This amount includes specialty clothing including particular sportswear and uniforms.

30. Accordingly, the applicants submit (in additional information) that they are ‘wholly or substantially reliant’ on their mother to meet their basic needs of food, clothing and shelter and that their reliance on her is greater than their reliance ‘on any other person or source of support’.  The Tribunal is satisfied (following receipt of additional information) that the applicants do meet the definition of ‘dependent’ in reg.1.05A.

31. The parties are required (pursuant to Subclass 820) that they are ‘dependent’ on the primary applicant both at time of application and decision.

32. The Tribunal is now satisfied (following receipt of further information) that the applicants meet reg.1.05A (the definition of ‘dependent’) at time of application and decision. Thus, as a corollary, they meet cll.820.311(a)(i) and 820.321(a).

33. As the applicants are the children of the primary applicant and ‘dependent’ on her at time of application and decision they also meet the definition of ‘dependent child’ in reg.1.12(b) .

34. The applicants have satisfied the Tribunal that (as result of this above finding) they are ‘members of the family unit’ of ‘a person who made a combined application with a person who satisfied the primary criteria’ etc and meet cl.820.321(b).

35. As a result of these findings the applicants meet the requirements of cl.820.311(a) and cl.820.321(b).

36. 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 820 visa.

    DECISION

37. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.311 of Schedule 2 to the Regulations

    ·cl.820.321 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member