Lai (Migration) - [2023] AATA 2755

Lai (Migration) [2023] AATA 2755 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ngoc Yen Nhi Lai
REPRESENTATIVE:  Ms Lan Hoang (MARN: 1685874)
CASE NUMBER:  2215924
HOME AFFAIRS REFERENCE(S):          BCC2018/1757098
MEMBER:P. Maishman
DATE:17 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 17 August 2023 at 3:36pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – secondary applicant as dependent child – dependency for substantial period before application made – 18-year-old full-time secondary student working part-time when application made – department’s guidelines allow for part-time work during secondary or first tertiary study – no additional information provided and consent to decision without hearing – no evidence of continued tertiary study – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, Schedule 2, cl 820.311(a)(i), 830.321
CASE
Huang v MIMA [2007] FMCA 720
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was included on a combined visa application on 20 April 2018 by her mother Pham Nguyen Cam Tu (the primary applicant) who applied for the visa on the basis of her relationship with her sponsor Le Thanh Cuong.
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 (Cth) (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 primary applicant was granted the Partner visa on 22 October 2022, however the delegate refused to grant the applicant’s visa on the basis that she did not satisfy cl 820.311(a)(i) because the delegate was not satisfied the applicant is a dependent child of the primary applicant.
On 23 March 2023 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 June 2023. On 6 June 2023 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
The applicant was represented in relation to the review.
For the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lai (Migration) [2023] AATA 2755
Case: [2023] AATA 2755
Decision Date: 17 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, who was a secondary applicant as a dependent child. The primary applicant was the applicant's mother. The central dispute was whether the applicant, who was 18 years old at the time of the application and working part-time, met the criteria for dependency on her mother as required by the Migration Regulations.

The legal issues before the Tribunal were whether the applicant was a dependent child of the primary applicant at the time of the visa application and at the time of the decision, as defined by the Migration Regulations. Specifically, the Tribunal had to consider the meaning of "dependent" under Regulation 1.05A, which requires a substantial period of reliance for financial support for basic needs, and whether the applicant's part-time employment and full-time secondary student status satisfied this criterion.

The Tribunal noted that Regulation 1.05A(a) requires a person to be wholly or substantially reliant on another for financial support for basic needs for a substantial period immediately before the time it is necessary to establish dependency. While departmental guidelines interpret "substantial period" as usually at least 12 months, the Tribunal is not bound by these guidelines and must consider the individual circumstances. The applicant was invited to provide information demonstrating dependency but failed to respond. Given the applicant's age, part-time work, and lack of evidence of continued tertiary study or ongoing substantial reliance for basic needs, the Tribunal found that the applicant had not satisfied the dependency criteria.

The Tribunal affirmed the decision under review, concluding that the applicant had not demonstrated that she was a dependent child of the primary applicant at the relevant times.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Evidence The Tribunal had a copy of the Department’s file containing the visa application and documents received in relation to the application. On 6 March 2019 the primary applicant completed Form 47A providing details about the applicant. The applicant gave the Tribunal a copy of the delegates decision record with her application for review. On 30 March 2023 the Tribunal wrote to the applicant inviting her to provide information demonstrating she is dependent, as defined in reg 1.05A, of her mother, Pham Nguyen Cam Tu. At the time of hearing the Tribunal has not received any response to that invitation. The issue in in the present case is whether the applicant is, at the time of application and time of this decision, dependent upon her mother, the primary visa applicant. Relevant legislation Clause 820.311 provides the following:820.311 Criteria to be satisfied at time of applicationThe applicant is:(a) either: (i) a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or(ii) a member of the family unit of a person who:(A) is the holder of, or has been the holder of, a Subclass 300 (Prospective Marriage) visa; and(B) has applied for a Partner (Residence) (Class BS) visa; and(b) the sponsorship (if any) in respect of that person includes the applicant; and(c) the Minister has not decided to grant or refuse to grant a visa to the person. Clause 820.321 provides the following:820.321 Criteria to be satisfied at time of decision In the case of an applicant referred to in clause 820.311, the applicant:(a) is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) 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 dependent on, or 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 820 (Partner) visa and a Subclass 801 (Partner) visa — the Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria. Dependent child is defined by Regulation 1.03 as follows: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. The meaning of ‘dependent’ is set out in Regulation 1.05A(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.

Decision

Reasons for decision

Clause 820.321 provides the following:820.321 Criteria to be satisfied at time of decision In the case of an applicant referred to in clause 820.311, the applicant:(a) is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) 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 dependent on, or 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 820 (Partner) visa and a Subclass 801 (Partner) visa — the Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria. Dependent child is defined by Regulation 1.03 as follows: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. The meaning of ‘dependent’ is set out in Regulation 1.05A(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. Accordingly, Regulation 1.05A(b) is an alternative way the applicant can satisfy Regulation 1.05A. There is no definition in the Regulations as to what constitutes a ‘substantial period’, but in the context in which ‘substantial’ is used in Regulation 1.05A it has been held that it should be understood to mean a lengthy period.[1] Departmental policy guidelines interpret a ‘substantial period’ as usually taken to be at least 12 months.[2] However, while the Tribunal has had regard to Departmental policy, it is not binding on the Tribunal and the Tribunal has considered the individual circumstances of the case. [1] Huang v MIMA [2007] FMCA 720 at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in reg 1.03 which refers to a relative who ’has been dependent on that person for a reasonable period, and remains so dependent’ and how it should be reconciled with the definition of dependent in reg 1.05A that the person should be wholly or substantially reliant upon the other person for a substantial period. His Honour went on to state at [44] that, by contrast, a ‘reasonable period’ need not be lengthy.[2] Policy – Migration Act – Act-defined terms instructions – s5G – s5G-Relationships and family members - Dependent family members at [37.2], reissue date 14 December 2016.

Ratio Decidendi

Legal Principle Established

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