MAI (Migration)

[2017] AATA 498

MAI (Migration) [2017] AATA 498 (10 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nguyen Que Anh MAI

CASE NUMBER:  1517605

DIBP REFERENCE(S):  CLF2014/67142 CLF2015/80471

MEMBER:Chantal Bostock

DATE:10 March 2017

PLACE OF DECISION:  Sydney

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

·cl.820.311(a)(i) of Schedule 2 to the Regulations;

·cl 820.321(a) of Schedule 2 to the Regulations.

Statement made on 10 March 2017 at 12:53pm

CATCHWORDS

Migration – Partner (Temporary)(Class UK) visa – Subclass 820 (Partner (Temporary)) – Dependant child – Wholly and substantially reliant on mother

LEGISLATION

Migration Act 1958 – ss 65
Migration Regulations 1994, Schedule 2 – cl 820.311(a)(i), 820.321(a), r.1.03, r.1.05A, r.1.05A(1)

CASES

Huynh v MIMIA (2006) 152 FCR 576

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 2 December 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant’s mother made the application for the Partner (Temporary) Class UK and Partner (Residence) Class BS visa on 7 May 2014, with the applicant listed as a secondary visa applicant. 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.

2. The applicant appeared before the Tribunal on 8 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her mother, the primary visa applicant and her step-father, her sponsor. Her younger sister attended the hearing as her support person.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. By way of background, the review applicant, a now 20 year old Vietnamese citizen, came to Australia as a high school student in late 2012. She completed her HSC in Australia and is currently undertaking a Bachelor of Science majoring in Information Technology at UTS. While she was studying in Australia, her mother, a Vietnamese citizen, met and married an Australian citizen of Vietnamese origin. Her mother moved to Australia, whereupon she lodged her partner visa application, sponsored by her husband and including the review applicant and her younger daughter as dependents.

5. Departmental records indicate that the review applicant’s mother was granted the subclass 820 visa in December 2015 but the review applicant’s visa was refused on the grounds that she was not a dependent child.  The delegate was not satisfied that the review applicant lived with her mother and step-father at the address provided or that she was wholly or substantially reliant on her mother for financial support to meet basic needs of food, clothing and shelter at the time of application. Accordingly, the delegate found that the review applicant did not meet subcl 820.311(a)(i).

6. The material before the Tribunal includes the recently submitted evidence of the review applicant’s enrolment at UTS and her interim Medicare card which were sent to her address (the same address as her parents) and her bank statements from 2014 and 2015.

7. The issue in this case is whether the review applicant is the dependent child of a person who has applied for a Partner (Residence)(Class BS) visa.

8. The term ‘dependent child’ has the meaning given in r. 1.03 and relevantly includes the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married) who has turned 18 and is dependent on that person or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

9. As noted earlier, based on the material before it, the Tribunal finds that the review applicant is the child of the primary visa applicant and that she has turned 18. There is no evidence that she is engaged to be married, has a spouse or de facto partner, a matter confirmed by the review applicant at the hearing.  Furthermore, there is no evidence that she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

10. The Tribunal is therefore required to have regard to the definition of “dependent”, found in r 1.05A. Regulation 1.05A(1)  defines dependency as follows:

    (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.

11. Following the Full Federal Court decision of Huynh v MIMIA (2006) 152 FCR 576, the proper construction of ‘dependent’ under the current definition in r.1.05A does not carry any implication of the notion of necessity or lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.

12. As noted earlier, the review applicant, her mother and her step-father gave evidence at the hearing. The Tribunal found their evidence clear, forthcoming and generally consistent with one another and the material on file. Minor inconsistencies were explained to the Tribunal. The Tribunal accepted their evidence.

13. Based on the material before the Tribunal, including the oral evidence given by the review applicant and her witnesses, the Tribunal makes the findings that follow. It finds that the applicant arrived in Australia in October 2012 and completed an Intensive Language Course. She then began her HSC in 2013, which she completed over 2 years. It finds that during this time, the applicant lived with her guardian, a close friend of the family and a medical practitioner and that she received $150 per week from her mother to cover her expenses, such as clothing. It further finds that her mother paid her guardian $250 per week in board.

14. The review applicant then moved in with her cousin for about 6 weeks and finally, moved in with her mother and her step-father after their wedding in about April 2014. Her mother and step-father started cohabiting around the time of their wedding. The primary visa applicant and the sponsor rent a unit for $320 per week. The Tribunal accepts that the review applicant lives at the address provided, particularly given the documentary evidence from her university and Medicare referred to earlier.

15. The primary visa applicant pays for the review applicant’s rent, food and clothing. When she commenced her university studies in 2015, her mother also agreed to give the review applicant $250 per week for her expenses. The review applicant uses her “pocket money” to pay for her transport, additional items of clothing and meals on campus.

16. The Tribunal accepts that following her divorce, the primary visa applicant was given a lump sum of about $200 000 from her former husband to pay for her daughters’ upkeep and education. She and her former husband agreed that she would receive more as she would care for their two daughters. The primary visa applicant explained that she worked as the treasurer of an import company after graduating until she moved to Australia while her former husband earned a good salary as a manager in a plastic cup manufacturing company. They received funds from their families when they married and saved their income. They sold their house and apartment in Saigon during the divorce. The funds from the property settlement have been used to support her daughters.

17. The review applicant gave evidence, which the Tribunal accepted, that when she was 16 years old she worked at Hungry Jacks for about 6 weeks. She was trained but never received any shifts. As she was doing her HSC, she did not pursue the matter. She does not receive any further funds from her biological father, in light of the property settlement. The Tribunal accepted her evidence that the significant funds from the property settlement were initially deposited into her bank account because at that stage her mother did not have an Australian bank account.

18. The Tribunal finds that the review applicant was substantially reliant on the primary visa applicant for financial support to meet her basic needs for food, clothing and shelter at the time of application and continues to be substantially reliant on her at the time of decision. The Tribunal further finds that the review applicant’s reliance on the primary visa applicant was and is greater than her reliance  on any other person or source of support to meet the her basic needs for food, clothing and shelter at the time of application and time of decision. It further finds that the review applicant was substantially reliant on the primary visa applicant to meet her basic needs for food and clothing for a substantial period before lodgment of the application.

19. The Tribunal finds that the review applicant is the dependent child of a person who has applied for a Partner (Residence) Class BS Visa. She therefore meets subclause 820.311(a)(i). It further finds that the review applicant is a dependent on another person (her mother) who having satisfied the primary criteria is the holder of a subclass 820 (Partner) visa. Subclause 820.321(a) is therefore also met.

20. 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

21. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    · cl.820.311(a)(i) of Schedule 2 to the Regulations;

    · cl 820.321(a) of Schedule 2 to the Regulations.

    Chantal Bostock
    Member