Menicou (Migration) - [2023] AATA 3725

Menicou (Migration) [2023] AATA 3725 (24 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Peter Menicou
VISA APPLICANT:  Ms Xinting Wu
CASE NUMBER:  2107239
DIBP REFERENCE(S):  BCC20191951474
MEMBER:Peter Emmerton
DATE:24 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.321 of Schedule 2 to the Regulations
·cl 100.321 of Schedule 2 to the Regulations

Statement made on 24 October 2023 at 12:05pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – applicant’s mother has been granted a BC 100 visa as the spouse of the review applicant – requirement of dependency – member of the family unit – applicant is the biological child of the wife of the review applicant or sponsor – visa applicant is currently 20 years of age and studying full-time – secondary applicant is a dependent child studying full time – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5,65
Migration Regulations 1994, rr 1.05, 1.12, Schedule 2, cls 309.321, 100.321
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 on 30 April 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 16 April 2019 on the basis of her relationship with her sponsor, the review applicant. At that time, 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 applicant’s mother and review applicant (sponsor) are married. The review applicant is an Australian citizen. The applicant’s mother has been granted a BC 100 visa as the spouse of the review applicant. None of these facts are in dispute.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.321, (Partner provisional) nor cl 100.321, (Partner) because they were not satisfied that at the time of decision the secondary applicant meets the requirement of dependency under regulation 1.05A. Therefore, there is no evidence or documentation to support that the secondary applicant meets the definition of being a member of the family unit of the primary applicant. The delegate therefore did not assess the application against the other criteria in subclass 309.
The review applicant appeared before the Tribunal via video on 24 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Zhou, the primary applicant, (Ms Wu’s mother).
The hearing was conducted with the assistance of an interpreter fluent in English and Mandarin language.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary visa applicant claiming to be the member of the family unit of the primary applicant, can satisfy the secondary criteria under cl.309.321 of the Act for the grant of the visa.
The Tribunal has read and carefully considered all the evidence provided to the Department and delegate prior to their decision.
In addition, the Tribunal has read and carefully considered all the evidence provided to the AAT prior to the hearing.
- Representative submission of 2 June 2021
- Chinese household documents including translations
- Marriage Certificate of Peter Menicou and Wenfang Zhou, 4 September 2017
- Money transfers between approx. March 2022 and August 2023, averaging approx $4304 AUD
- Appears to be Chinese language money transfers, untranslated
- Statutory Declaration of Wenfang Zhou, partner of Peter Menicou, dated 18 October 2023
- A series of translated, threatening text messages on the applicants telephone
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their specific circumstances.
The applicants rely on the evidence before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
On 30 April 2021, a separate favourable visa decision was made on the application for the primary applicant, Ms Wenfang Zhou and the secondary applicant Junbin Wu. This decision relates solely to this secondary applicant, Ms Xinting Wu.
The application must be considered against the criteria for all subclasses within that visa class. The applicant applied for Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa classes. There are two (2) subclasses of visa in the classes that the applicant applied for. The applicant must be assessed against both subclasses and against both primary and secondary criteria for both subclasses.
- Partner (Provisional) (Class UF) visa: Subclass 309 - Partner (Provisional).
- Partner (Migrant) (Class BC) visa: Subclass 100 – Partner visa.
- Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) have both primary and secondary criteria.
The visa cannot be granted unless the applicant meets the relevant legal requirements specified in the Act and the Regulations. From the information available to the Tribunal, including the documents and information provided, the secondary applicant, Ms Xinting Wu does meet the legal requirements in clauses 309.321 and 100.311 in Schedule 2 of the Regulations on the date of this decision. Consequently, the Tribunal finds that the criteria for the grant of a Subclass 309 - Partner (Provisional) and Subclass 100 – Partner visa are met by the secondary applicant, Ms Xinting Wu.
Primary criteria - Subclass 309 - Partner (Provisional) or Subclass 100 Partner visa
No claims have been made by the applicant, Ms Xinting Wu that she meets the Primary criteria for the Subclass 309 - Partner (Provisional) or Subclass 100 – Partner visas. Therefore, they have not been considered.
Secondary criteria - Subclass 309 - Partner (Provisional) or Subclass 100 Partner visa
Clauses 309.311, 309.321 and 100.311 of the Regulations require that the secondary applicant must be a member of the family unit of the primary applicant to be eligible for grant of the relevant visa.
Time of application - 309.311
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.
Time of decision – 309.321
The applicant:
(a) 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 (Partner (Provisional)) visa (the person who satisfies the primary criteria).
Secondary criteria – Subclass 100 Partner visa
Time of application – 100.311
The applicant is a member of the family unit of a person who has applied for a Partner (Migrant) (Class BC) visa, and the Minister has not decided to grant or refuse to grant a visa to the person.
The term ‘member of the family unit’ is defined in regulation 1.12 of the Regulations.
Regulation 1.12: Member of the family unit
(1) This regulation has effect for the purposes of the definition (the main 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:
(a)is a spouse or de facto partner of the family head; or
(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; or
(c) is a dependent child of a person who meets the conditions in paragraph (b).
This subregulation has effect subject to the later subregulations of this regulation.
The Tribunal accepts the evidence presented that the visa applicant is the biological child of the wife of the review applicant or sponsor. For clarity it is agreed the visa applicant is the stepdaughter of the review applicant. This was also agreed by the delegate in their decision and has not been a matter in dispute.
It is a requirement that the visa applicant who had not turned 23 at the time of application and had subsequently reached an age of 23 at the time of the delegate’s decision is dependent upon the family head or on the spouse or de facto partner of the family head. This must continue to be the case at the time of the Tribunal’s decision. It is noted by the Tribunal that the visa applicant is currently 20 years of age and studying full-time.
Regulation 1.05A Dependent
The visa applicant claims that at the time of application they are dependent as per the previous paragraphs.
The following definition of dependent is applicable to visa applications made on or after 1 November 1999.[1] Regulation 1.03 of the Regulations states that ‘dependent’ has the meaning given by r.1.05A. Regulation 1.05A states:
[1] The definition in r.1.05A was inserted by r.5(1) of Migration Amendment Regulations 1999 (No.13), (SR1999 No.259).
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)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)a person (the first person) is dependent on another person for the purposes of an application for:
(d)     a Protection (Class XA) visa; or
  (e)     a Refugee and Humanitarian (Migrant) (Class BA) visa; or
  (ea)   a Refugee and Humanitarian (Class XB) visa; or
(i)     a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
The concept of dependency in r.1.05A is limited to financial dependency, except in relation to certain specified protection and humanitarian visa classes for which it is open to consider whether the person is reliant on another for psychological or physical support. This does not apply here.
Wholly or Substantially Reliant
The definition of dependent requires that the person has been ‘wholly or substantially reliant’ upon the other person for financial support in relation to their basic needs. The term ‘substantially reliant’ involves a concept of predominance and requires the Tribunal to ask whether the applicant was predominantly or ‘primarily, essentially or in the main’ dependent on the other person.[2] In Fusi v MIAC[3], the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case, funds from other family members, when assessing whether she was ‘wholly or substantially reliant’.[4] Although the Court’s consideration relates to the definition of ‘dependent’ as it stood prior to November 1999, the reasoning would appear to be equally applicable to the current definition in so far as it considers the terms ‘wholly or substantially reliant’.
[2] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. Federal Magistrate Cameron followed the reasoning of Branson and Hely JJ in the Full Federal Court decision MIMA v Graovac [1999] FCA 1690 (Einfeld, Branson and Hely JJ, 16 December 1999) at [10]-[13] where Branson and Hely JJ considered the meaning of “substantially dependent” in the pre 1 November 1999 definition of ‘dependent’ in r.1.03. No significance was identified in Huang in the change from “substantially dependent” to “substantially reliant”.
[3] [2012] FMCA 1037 (Nicholls FM, 15 November 2012).
[4] Fusi v MIAC [2012] FMCA 1037, (Nicholls FM, 15 November 2012) at [60].
Importantly, in Huynh v MIMIA[5] , the Full Federal Court found that 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.[6] Significantly, this constituted a departure from the position adopted in MIMIA v Pires[7] and Xie v MIMA[8] which determined that the pre-1 November 1999 definition of ‘dependent’ did contemplate a degree of necessity. In obiter comments, a majority of the Court in Huynh stated that, while it was not necessary to consider whether these cases were wrongly decided, the decisions in Pires and Xie should no longer be followed.[9]
[5] (2006) 152 FCR 576. Much of the analysis of the relevant provision pertains to the construction of r.1.05A(1) however, the Court’s reasoning appears to extend to r.1.05A in its entirety, at [35], [36] and [39].
[6] Huynh v MIMIA (2006) 152 FCR 576 (Lander, Rares and Besanko JJ, 31 July 2006) considered the construction of ‘dependent’ in the context of ‘dependent child’, however, the conclusion as to the proper construction of ‘dependent’ in regulation 1.05A is applicable in all cases where reference is made to the term ‘dependent’, for example, relative in the r.1.12(1)(e) ‘member of a family unit’ definition and the definition of ‘aged dependent relative’ in r.1.03. Refer also Thompson v MIAC (2010) 114 ALD 86.
[7] (1998) FCR 214 (Mansfield J, 1 December 1998) at [221].
[8] (2000) FCA 230 (Weinberg J, 9 March 2000).
[9] Huynh v MIMIA (2006) 152 FCR 576, (Lander, Rares and Besanko JJ, 31 July 2006) at [41].
In Zeng v MIMIA,[10] a decision involving an Aged Dependent Relative visa, Riethmuller FM concluded that a proper determination of the question of ‘substantial dependence’ will require considerations of at least the following factors:
·the nature of the person’s needs (within the meaning of the regulations);
·the extent to which those needs are being met by the person from their own resources;
·the extent to which the needs are being met by the nominator; and
·whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.[11]
[10] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).
[11] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [11].
In many cases this will require consideration of the circumstances in different periods of time leading up to the date of the application and the nature of future support having regard to the relationship.[12] The Tribunal has exercised care in considering the last of these factors as Zeng was decided before the Full Court’s decision in Huynh. While the existence of an obligation on the nominator may point to reliance in fact by the applicant, the Tribunal does not require such obligation before it can find a person is dependent upon a nominator.
Level of reliance
[12] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [12].
The expression ‘substantially reliant’, and r.1.05A(1)(a)(ii) require consideration of the level of reliance a person has on another person in comparison with his or her reliance on other persons or sources of support. As indicated above, courts have held that the term ‘substantially’ should be read as meaning ‘predominantly’ or ‘primarily, essentially or in the main’.[13] Sub-subparagraph 1.05A(1)(a)(ii) requires that the first person’s reliance on the other person be greater than any reliance on any other person or source of support.
[13] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. See also Fusi v MIAC [2012] FMCA 1037 (Nicholls FM, 15 November 2012).
It appears there has been no judicial consideration of whether the notion of predominance in these two contexts applies to: (i) the total amount of financial support for the basic needs; or (ii) predominance in relation to the basic needs such that reliance on a person for two out of three of the basic needs will be sufficient; or (iii) whether it relates to a combination of financial support in respect of each of the basic needs of food, shelter and clothing individually.
The first approach places emphasis on the words ‘…for financial support to meet the first person’s basic needs’ which are then further defined as including the three items that follow.
The second approach comes from placing emphasis on the fact that the support must be for the basic needs (but which does not give real consideration, to the fact that those needs are specified in a cumulative manner by the use of the word, ‘and’).
The third approach comes from placing emphasis on the fact that the basic needs for which financial support must be provided are described as ‘food, shelter and clothing’ which suggests a cumulative requirement of all three needs. One example of circumstances where these different interpretations may have differing results is where two of the three basic needs of the visa applicant are met by financial support from person B and the cost of the third and most expensive basic need is met by person C who is providing a greater amount of money than person B and the visa applicant is claiming to be dependent upon person B.
The third approach, which requires that financial support be provided in relation to all three basic needs and, overall, the person can be described as the predominant source of support, even if only providing a small amount in relation to one of the basic needs, appears to be the approach that best reflects all parts of the regulation. In the Tribunal’s view, to require the person to be predominantly reliant upon another person in respect of each of the three basic needs would appear to place the bar too high and is not necessary to give effect to all parts of the definition. However, on current authority that the Tribunal is aware of a variety of approaches appear open.
Substantial Period
The delegate claims that the applicant, Ms Wu during telephone interviews acknowledged that she was not reliant upon the primary applicant and sponsor and accepted only small amounts of money. Additionally, she stated that she had just commenced some part-time employment and stays at the school during the week. It became evident during the hearing that the reason 2 telephone interviews occurred was the poor quality of the connection initially which caused difficulties for the parties to clearly understand each other.

The Tribunal has concluded that Ms Wu did not at the time of questioning by the delegate fully understand the concept of dependence. She was a teenager, and it is reasonable to assume she felt a degree of sudden independence resulting from her newly obtained part-time work in addition to her study. The reality in the Tribunal’s assessment is somewhat different. Clearly her needs were substantially being attended to by the adults in her life without her true understanding of the financial reality of paying tuition expenses, clothing, running a home, medical expenses etc. The Tribunal suspects a degree of naivety associated with age and somewhat unknowing about the motivations or purpose of the delegates questioning, as it seems to have occurred without an adult family member in attendance. Again the Tribunal notes the communication issue and the poor quality of the telephone connection which appears to have hampered clear communication.
The applicants submit that financial support has been provided during the ongoing period of study undertaken by the applicant Ms Wu and for a substantial time prior. The applicant’s mother who was the primary applicant has stated in her Statutory Declaration dated 18 October 2023 that she had been substantially financially supporting her daughter for a considerable number of years. The Declaration is reproduced in part below.
‘My daughter is a full time student, studying Business English at Liming Vocational University since October 2021. Please see enclosed In-school Certificate and Academic transcript.
Since my divorce from my ex-husband, I have shouldered the financial and emotional responsibilities of raising my children independently. My ex-husband did not consistently adhered to the child support payments outlined in our divorce agreement, and there were times when he even asked me for money.
During the period between April 2019 and May 2021, while I was residing in China, personally attended to my daughter's daily needs, ensuring her well-being and care.
After I relocating to Australia, although my geographical location has changed, my maternal bond with my daughter remains steadfast. I maintain near-daily contact with her, staying intimately involved in her life and educational pursuits.
I transfer money to her via bank account and WeChat to guarantee her access to all essential needs, including her tuition fees, daily expenses and accomodation.
The monthly cost of supporting my daughter is around 2000 Chinese Yuan, including her meals, clothing, phone expenses, transportation, electricity and personal care products, etc. She is a full time boarding student, and her annual tuition fee and accommodation fee are about 7650 Chinese Yuan. Therefore, her total annual expenditure is around 31,650.00 Chinese Yuan.
In 2022, I transferred 5,848 Australian dollars, equivalent to 27,593 Chinese Yuan, to her bank account. Additionally, I made a WeChat transfer of 8,970 Chinese Yuan, bringing the total to 36,563 Chinese Yuan. The money I transferred to her is far more sufficient to cover her basic needs for food, clothing and shelter.
From January 2023 to the present, I have made a total of 4 transfers, amounting to 19,977 Australian dollars, equivalent to 93,563 Chinese Yuan.
As my daughter has grown into a young lady, I always feel guilty to her for not being accompany her physically. Therefore, I wish to ensure that she is not burdened financially and can relish this phase of life to the fullest.
Throughout this year, she has incurred many additional expenses, such as driving lessons, ceNical cancer vaccine, and registration fees for the bachelor's degree entrance exam, which have amounted to additional costs of nearly 10,000 Chinese Yuan.
Therefore, I transferred her some extra money pay these expenses. Xinting told me that she wants to pursue a bachelor's degree and attend a better school. I wholeheartedly support her goal, so I have sent her some extra money to guarantee her financial security.
In June 2023, I went to China and spent around one month quality time with my     daughter.
I am committed to offering her the best possible life and will continue to support her in      any way I can.
My daughter has been reliant on me for a substantial period since 2015.
          She is not married or in a de-facto   relationship.
She relies on no other person greater than me.’
The Tribunal accepts the written evidence presented and corroborated during the hearing that the applicant Ms Wu has been a student for a considerable number of years. It accepts that her mother has supported her post their divorce in 2015. It also accepts as accurate the assertion that the visa applicant’s mother had financially supported her from April 2019 and May 2021 prior to her mother moving permanently to Australia upon grant of her visa with Ms Wu’s sibling to reside with her sponsor husband.
It has been submitted and accepted that substantial amounts of primary financial support have been provided to Ms Wu during her study whilst her mother resides in Australia. Valid written evidence has been supplied to demonstrate the accuracy of the claimed money transfers. It is noted and accepted the amounts were substantial and would appear to be adequate for the major share of support needed to clearly demonstrate primary dependency on the sponsor and his wife.
As above, a person must be wholly or substantially reliant upon the other person at the relevant time and for a substantial period immediately before the relevant time. In this case the definition of ‘dependent’ arises in relation to a time of application criterion and a time of decision. Therefore, the applicants must be dependent on the relevant person at the time of application and for a ‘substantial period’ immediately before the visa application. There is no definition in the Regulations of what constitutes a ‘substantial period’. In the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period.[14]
[14] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.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 r.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.
Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months.[15] However, while the Tribunal may have regard to Departmental guidelines or interpretations, it is not binding on the Tribunal and the individual circumstances of the case are considered to ensure that the departmental guidelines are not elevated or treated as a legislative requirement.
[15] PAM3: Act - Act-defined terms - s5G – Relationships and family members – Dependent family members – paragraph 41.2 (compilation 23/3/12).
As aforementioned, in Zeng v MIMIA[16] the following factors were identified as relevant to the consideration of whether the dependence was for a ‘substantial period’:
·the actual period of dependence; and
·the reason for the dependence; and
·the extent or nature of the dependence.[17]
[16] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).
[17] Zeng v MIMIA [2005] FMCA 546 (Riethmuller FM, 27 April 2005) at [13]
In this case the care provided by the sponsor and his spouse in relation to the applicant is substantiated. The claim of substantial dependence over a ‘substantial period’ of several years, prior to this decision is reasonable. For the reasons stated above the Tribunal does accept extensive financial support has been provided for a “substantial period” of multiple years and continues to be occurring to the current point in time due to substantial dependence.
Financial support provided by a couple
The Regulations generally identify a single person (e.g., the primary visa applicant or the sponsor) on whom a visa applicant is required to be ‘dependent’. As a practical matter, where that person is part of a couple it is often difficult to ascertain whether that person or their partner is in fact the person on whom the visa applicant is reliant. The Federal Magistrates Court in Al Naqi[18] took the view that a ‘broad practical judgment’ is required in the circumstances of the case, and this may require consideration of the underlying source of the support and the reasons for it. Federal Magistrate Riethmuller (as he then was), commented that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’[19] Applying this to the circumstances of this case, the primary applicant or the review applicant may be considered to be the source of the support because it is their spousal relationship with the that is the reason for the financial support being initially provided to the visa applicant during his time of study which had ceased 3 years earlier.
[18] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007).
[19] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007) at [16]. However, note that in Phin v MIAC [2013] FMCA 60, Burchardt FM clarified in obiter that the comments in Al Naqi regarding spousal arrangements did not give rise to any broader principle and were confined to the facts of that case.
Importantly, in Phin v MIAC[20], Burchardt FM indicated in obiter that the comments in Al Naqi regarding spousal arrangements did not give rise to any broader principle and were confined to the facts of that case.[21] However, ultimately, the judgments in Al Naqi and Phin demonstrate that the issue of dependency is a question of fact determined by the Tribunal having regard to the factual matrix of the case at hand. In this instance the issues associated with support by a couple are not relevant.
[20] [2013] FMCA 60.
[21] See Phin v MIAC [2013] FMCA 60. In this case, the primary visa applicant for a Remaining Relative visa provided funds to her adult son, which she had in turn received from the Australian sponsor, her brother. The Court found that the Tribunal had erred by moving directly from the issue of the source of funds to a conclusion that the adult son was not dependent upon the primary visa applicant, without making a finding on the factual issue that the Regulations required to be addressed, namely whether he was indeed dependent upon her.
The Tribunal has been presented with copies of threatening telephone messages sent to the applicant’s device demanding her to pay her father’s debts. Enquiries made during the hearing substantially corroborated the circumstances surrounding the demanding messages. Clearly this has no basis in law, however this has raised some concerns in relation to the applicant’s safety and wellbeing.
The Tribunal has determined that the visa applicant Ms Xinting Wu does meet the following requirements:
· Subclass 309 – Partner (Provisional) – clause 309.321
· Subclass 100 – Partner – clause 100.321
For the reasons above, the visa applicant does satisfy the criteria for the grant of the visa.
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 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.321 of Schedule 2 to the Regulations
·cl 100.321 of Schedule 2 to the Regulations
Peter Emmerton
Member