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…

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: Menicou (Migration) [2023] AATA 3725
Case: [2023] AATA 3725
Decision Date: 24 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, and a Partner (Migrant) (Class BC) visa, subclass 100. The applicant, Ms. Xinting Wu, sought to be recognised as a member of the family unit of the primary applicant, Ms. Wenfang Zhou, who was the spouse of the review applicant, Mr. Peter Menicou. The dispute centred on whether Ms. Wu met the criteria for being a dependent child under the relevant regulations.

The Administrative Appeals Tribunal (AAT) was required to determine whether Ms. Wu satisfied the secondary criteria under clause 309.321 of the Migration Act 1958 (Cth) and clause 100.311 of the Migration Regulations 1994 (Cth) for the grant of the visas. Specifically, the Tribunal had to assess if Ms. Wu, as the biological child of Ms. Zhou and therefore the stepdaughter of Mr. Menicou, qualified as a "member of the family unit" by being dependent on either Ms. Zhou or Mr. Menicou.

The Tribunal considered the definition of "member of the family unit" in regulation 1.12 of the Regulations, which includes a child who has turned 18 but not 23 and is dependent on the family head or their spouse or de facto partner. The Tribunal also applied the definition of "dependent" in regulation 1.05A, which requires substantial reliance for financial support for basic needs, with that reliance being greater than any other source of support. The Tribunal accepted that Ms. Wu was the biological child of Ms. Zhou and the stepdaughter of Mr. Menicou. Evidence indicated Ms. Wu was 20 years of age and studying full-time, and that financial support was being provided.

The Tribunal concluded that the evidence presented satisfied the criteria for the grant of a Subclass 309 – Partner (Provisional) visa and a Subclass 100 – Partner visa. Consequently, the Tribunal remitted the decision under review for reconsideration, finding that the secondary applicant met the relevant legal requirements.

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 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

Decision

Reasons for decision

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 visaTime 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 oron 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 familyhead 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.

Ratio Decidendi

Legal Principle Established

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