Lai (Migration)

[2024] AATA 2794

Lai (Migration) [2024] AATA 2794 (15 July 2024)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chung-chen LAI

VISA APPLICANT:  Miss Yu-Hsien Weng

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2119599

HOME AFFAIRS REFERENCE(S):          BCC2020/1206797

MEMBER:Justine Clarke

DATE:15 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 15 July 2024 at 1:55pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – member of the family unit – financially dependent – visa applicant recently married – extended processing times – referral for Ministerial Intervention – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5(1), 65, 351
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.03, 1.05, 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 22 October 2021 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 18 March 2020, Ms Tzu-yun Huang applied for the visa based on her partner relationship with her sponsor, Mr Chung-chen Lai, who is the review applicant in this case. It is claimed that Ms Yu-Hsien Weng, the visa applicant in this review, is Ms Huang’s daughter and she was included as a secondary visa applicant in the application filed on 18 March 2020. Ms Weng is national of Taiwan. At the time she applied for the visa, Ms Weng was 22 years of age. At the time of this decision, she is 26 years of age.

3. At the time of application, 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. The secondary criteria include cl 309.311 and cl 309.321.

4. Clause 309.311 requires that, at the time of application, the visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. (The expression ‘member of the family unit’ is defined in reg 1.12).

5. Clause 309.321(a) requires that, at the time of decision, the visa 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 visa.

6. The review applicant provided the Tribunal with a copy of the primary decision made on 22 October 2021 concerning the visa applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.311 and cl 309.321 of Schedule 2 to the Regulations. The delegate explained that, from the evidence before them, they were satisfied that the visa applicant is the biological child of Ms Huang. The delegate explained that, on 4 August 2021, the Department sent a natural justice letter to the parties advising of the view that the visa applicant did not meet cl 309.321 and that, on 30 August 2021, a response had been received. The delegate acknowledged the claims and evidence that had been submitted but noted that no claims had been submitted that the visa applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions. Accordingly, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.311 and cl 309.321.

7. On 20 December 2021, the review applicant applied for the review of the primary decision. The review applicant was represented in relation to the review by his registered migration agent.

8. On 28 June 2024, the review applicant appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, by video, from the visa applicant. Ms Huang also attended the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The interpreter attended the hearing by video. The representative also attended the hearing by video.

9. At the conclusion of the hearing, the Tribunal granted the applicant further time to provide information in support of the request for the matter to be referred to the Minister for his intervention.

10. On 15 July 2024, the representative submitted a written submission for Ministerial intervention.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether, at both the time of application on 18 March 2020 and at the time of this decision, the visa applicant was and is a member of the family unit of Ms Huang and thus satisfies cl 309.311 and cl 309.321. In assessing the issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as to the oral evidence given at the hearing.

    The law

13. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

14. As the combined visa application was lodged after 19 November 2016, the current version of reg 1.12 applies. This definition is more limited than the former definition in a number of ways, including because this definition sets an upper limit of 23 years for children who are dependent—unless they are incapacitated for work.

15. Specific rules apply in certain cases but the general rule, which is applicable in this case, relevantly provides:

    General rule

    (2) A person is a member of the family unit of another person (the family head) if the person:

    …

    (b) is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    (i)        has not turned 18; or

    (ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head[.]

16. In this case, Ms Huang—not the review applicant—is the so-called ‘family head’. This is because cl 309.311 provides:

    The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

17. The term ‘dependent’ is defined in reg 1.05A. This relevantly provides:

    (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 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.

    Assessment

18. The Tribunal takes a different view to the delegate of the key issue to be determined at the time of application. It is the Tribunal’s view that, at the time of application, the visa applicant needed to have met the requirements of reg 1.12(2)(b)(ii)—not reg 1.12(2)(b)(iii)—and at the time of this decision, she needs to meet the requirements of reg 1.12(2)(b)(iii).

19. At the hearing, the review applicant gave credible oral evidence that the visa applicant is his step-daughter. He told the Tribunal that, at the time the visa applicant applied for the visa, she had been financially dependent upon him as she was studying at the University of Cape Town in South Africa. He said that he had provided for her tuition fees. The Tribunal asked him whether, at that time, he had paid for her food, clothing and shelter. He replied that he had. He said that the visa applicant had lived with ‘the aunty’ and he had transferred money to ‘the aunty’ and that she had looked after the visa applicant. He said that he had been the main person who had provided financially for the visa applicant.

20. Next, the Tribunal asked the review applicant about the arrangements a substantial period immediately before the visa application date, using the example date of 18 March 2019 (12 months before the visa application date). The review applicant told the Tribunal that he had been financially responsible for the visa applicant at that point in time too, explaining that he had been financially responsible for the visa applicant since he had married her mother, explaining that he had met Ms Huang in 2015.

21. The Tribunal discussed the requirement in the opening words—or ‘chapeau’—of reg 1.12(2)(b) that the visa applicant not be engaged to be married or have a spouse or de facto partner. The review applicant told the Tribunal that the visa applicant is married and that she had married in 2023.

22. When asked, the visa applicant told the Tribunal that everything the review applicant had told the Tribunal was true.

23. The Tribunal found both the review applicant and the visa applicant to be credible and thanks them both for their honesty and openness—particularly in disclosing that the visa applicant is married and has been since 2023.

24. The Tribunal explained that, from the oral evidence, the visa applicant would not be able to meet the time of decision requirement in cl 309.321 because she does not meet the requirement in the opening words—or ‘chapeau’—of reg 1.12(2)(b) because she has a spouse.

25. The Tribunal also explained that she would not be able to meet the time of decision requirement because the visa applicant has turned 23 and that the key question is whether, at this time, she is dependent on the review applicant (the spouse of the family head) for the purpose of the definition in reg 1.05A(1)(b)—which is the more limited definition.

26. From the evidence before the Tribunal, the Tribunal is satisfied that, at the time of application for the visa on 18 March 2020, the visa applicant met the requirement in cl 309.311. However, for the following reasons, the Tribunal is not satisfied that, at the time of this decision, the visa applicant meets the requirement in cl 309.321.

27. The Tribunal accepts the oral evidence that, at the time of this decision, the visa applicant is married and thus has a spouse. Accordingly, at the time of this decision, the visa applicant does not meet the requirement in the opening words—or ‘chapeau’—of reg 1.12(2)(b), as required to be a ‘member of the family unit’. This is not a matter for which the Tribunal has any discretion.

28. The Tribunal also finds that there is no evidence before it to satisfy the Tribunal that, at the time of this decision, the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. No medical evidence has been submitted in this regard. Accordingly, for these reasons, the Tribunal finds that, at the time of this decision, the visa applicant is not dependent on the review applicant for the purposes of the definition in reg 1.05A(1)(b). This is not a matter for which the Tribunal has any discretion.

29. For the reasons above, the visa applicant does not satisfy cl 309.321—one of the criteria for the grant of the visa. Accordingly, the Tribunal must affirm the decision under review.

    Consideration of request for referral to the Minister for intervention

30. At the hearing, the applicants requested the Tribunal to refer the matter to the Minister for his consideration.

31. The review applicant told the Tribunal that the visa applicant had applied for the visa over four years ago and that they had applied for review at the Tribunal a number of years ago. He described the period of waiting over these years as a ‘very long and agonising period’. He said that it was not fair ‘to wait for nothing’ and unrealistic for the visa applicant to wait and not be able to move on with her life, for example, by marrying.

32. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether the Tribunal had the power to make that other decision or not.

33. In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

34. Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.

35. The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.

36. It was relevantly submitted, in the representative’s written submissions of 15 July 2024, that:

    Ms WENG applied for the Subclass 309 – Partner (Provisional) visa while she was under 23 years old. Unfortunately, due to the extended processing times by the Department of Home Affairs, she turned 24 before a decision was made, ultimately leading to the refusal of her application.

    Ms WENG submitted her application in good faith, fully compliant with all requirements at the time of submission, including her age criteria. The delay in processing, which was beyond her control, resulted in an unfair outcome that penalized her for circumstances not of her making. It is our firm belief that the Department of Home Affairs has a responsibility to rectify this procedural defect and ensure fair treatment of applicants who have met the criteria at the time of their application.

    Furthermore, Ms WENG is a vulnerable person who has diligently followed all necessary procedures and paid the required application fees with the expectation of fair and timely processing of her case. The prolonged processing times has caused significant emotional and financial stress to Ms WENG and her family. Given these circumstances, it is crucial that her case be reviewed with compassion and consideration of the impact these delays have had on her situation.

    … It is essential that the principles of fairness and justice are upheld, ensuring that applicants are not disadvantaged by systemic delays within the Department.    

37. In this case, the Tribunal considers that the facts as claimed by the applicants seem to best be described as, ‘the application of relevant legislation leads to unfair or unreasonable results in a particular case’.

38. Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

39. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

    Justine Clarke
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

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

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    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.

    (2) …