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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. The applicant was represented in relation to the review.

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

   Evidence

8. 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.

9. 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.

10. 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

11. Clause 820.311 provides the following:

    820.311  Criteria to be satisfied at time of application
    The 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.

12. 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.

13. 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.

14. 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.

15. Accordingly, Regulation 1.05A(b) is an alternative way the applicant can satisfy Regulation 1.05A.

16. 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.

17. Departmental policy guidelines provide that full-time students completing their first major, undergraduate qualification may be considered ‘wholly or substantially reliant’ on their parents, even if they are working part time or receiving a scholarship, provided they are otherwise financially reliant on their parents and have been in continuous full time study since high school.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The Tribunal has had regard to the documents on the Department’s file. The Tribunal finds the applicant was born in December 1999 and had turned 18 years when the application was made on 20 April 2018. The Tribunal accepts evidence from the applicant’s secondary school confirming she was enrolled as a full-time Year 12 student in 2018.     

19. On 6 March 2019 the applicant completed Form 47A and declared she was employed since 1 December 2015 earning $350 per week. The applicant declared her mother gave her $100 a week to purchase food, clothing and for personal expenditure. The applicant declared her mother was her main source of financial support for money, food and shelter.

20. The applicant’s representative gave the Department a written submission dated 2 April 2019. The applicant submits she stayed with her auntie at an address in Kingsway, Lansdale from 2015 and her mother paid for her school tuition. It was submitted the applicant was enrolled in a TAFE course and a letter of offer was provided to confirm the course would commence on 22 July 2019. 

21. On 15 December 2021 the applicant completed another Form 47A and declared she commenced tertiary education on 29 November 2021 which was scheduled to start on 31 January 2022 and on 24 June 2022. The applicant declared she was employed since 1 December 2015, working eight hours and earning $200 per week. The applicant declared her main source of financial support was her mother who provided support for all expenses.

22. The Department’s policy is that full-time students completing their first major, undergraduate qualification may be considered ‘wholly or substantially reliant’ on their parents, even if they are working part-time or receiving a scholarship, provided they are otherwise financially reliant on their parents and have been in continuous full time study since high school.

23. On the evidence, and taking into account the Department’s policy, the Tribunal finds the applicant was a full-time secondary student working part-time when the visa application was made. The Tribunal is satisfied at time of application the applicant was a dependent child of the primary applicant who had made an application for a Partner visa.

24. Therefore, the requirements of reg 820.311(a) are met.       

25. The Tribunal did not receive a response to its invitation on 30 March 2023 to provide information demonstrating the applicant meets is dependent on the primary applicant.

26. The Tribunal acknowledges the evidence suggesting the applicant is enrolled in full-time study and the TAFE letters of offer suggesting she may study from 22 July 2019 to 3 July 2020 and the proof of enrolment in the course starting January 2022 and ending June 2022. There is no evidence before the Tribunal that the applicant attended these courses as a full-time student.

27. The applicant declined to attend the hearing and the Tribunal is unable to test if the applicant was in fact a full-time student at any time between January 2019 and the time of this decision. There is no evidence before the Tribunal that the applicant is , and has been for a substantial period , wholly or substantially reliant on her mother for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is also unaware if the applicant’s reliance on any support from her mother is greater than any reliance on any other person for financial support.

28. The Tribunal is not satisfied that at the time of this decision the applicant is dependent, as defined in reg 1.05A, on her mother. There is no evidence before the Tribunal that the applicant is wholly or substantially reliant on any other person for financial support because she is incapacitated for work due to the total partial loss of her bodily or mental functions.

29. Therefore, the requirement in cl 820.321(a) is not met

30. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    P. Maishman
    Member