Nguyen (Migration)

[2023] AATA 4630

Nguyen (Migration) [2023] AATA 4630 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Duong Thi Thuy Nguyen

VISA APPLICANT:  Ms Tu Ly Phung

CASE NUMBER:  2218991

HOME AFFAIRS REFERENCE(S):          BCC2020/484666

MEMBER:Moira Brophy

DATE:12 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 12 December 2023 at 11:45am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – applicant is the child of the primary visa applicant –  applicant is 23 years old – applicant is not wholly or substantially reliant on the primary visa applicant or the review applicant for financial support because she is incapacitated for work – visa applicant doesn’t meet the definition of dependent – applicant is not a member of the family unit of the primary visa applicant at time of decision – decision under review affirmed     

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.05,1.12, Schedule 2, cl 309.321

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 (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Ms Tu Ly Phung (the visa applicant) applied for the visa on 18 February 2020 on the basis of her relationship with her sponsor, the review applicant. The review applicant sponsored the present visa applicant as a secondary 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 secondary criteria must be satisfied by the visa applicant because she was a secondary applicant on the primary visa applicant’s Subclass 309 visa application. Relevantly to this matter the secondary criteria includes cl 309.321.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.321 because the delegate was not satisfied, she was a member of the family unit of the primary visa applicant at the time of decision. Clause 309.321 of Schedule 2 relevantly requires the visa applicant to be a member of the family unit of the primary visa applicant at the time of decision.

4. The review applicant appeared before the Tribunal on 11 December 2023 by way of a video link to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Tu Ly Phung.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present matter is whether the visa applicant meets the time of decision criteria in cl 309.321, which says:

   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); 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 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 309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa — the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

7. Clause 309.321 requires that the visa applicant at the time of decision continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of the Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria). Having satisfied the primary criteria, Mr Kien Binh Phung, Ms Tu Ly Phung’s father, was granted Subclass 309 and a Subclass 100 visa on 5 December 2022.

8. The Tribunal then considered whether the visa applicant continues to be a member of the family unit of Mr Kien Binh Phung at the time of this decision.

9. Section 5(1) of the Act says that ‘member of the family unit’ of another person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations. Regulation 1.12 (2) says:

   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 stepchild of the family head or of a spouse or de facto partner of the family head (other than a child or stepchild 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.

10. Regulation 1.12(2)(b) says a person is a member of the family unit of the family head if, among other things, they are the child or stepchild of the family head or of a spouse or de facto partner of the family head. In the context of a subclass 309 visa, the family head is the person who satisfies the primary criteria for the grant of the visa. In the present case the primary visa applicant (Mr Kien Binh Phung) is the family head, and the visa applicant claims to be his child. For the purposes of reg 1.12(2)(b), ‘child of a person’ is defined under section 5CA of the Act to include someone who is a child of the person within the meaning of the Family Law Act 1975. In the present case, the basis for the application is that the visa applicant is a child of the primary visa applicant and the review applicant. The visa applicant provided a birth certificate, which indicates her parentage and a Form 80 which details her family composition. Based on the evidence, the Tribunal finds that the visa applicant is a child of the primary visa applicant and the review applicant within the meaning of section 5CA of the Act.

11. Regulation 1.12(2)(b) says that if the child or stepchild is 23 years of age or older, to meet the dependency requirements they must be dependent on the family head or on the spouse of the family head under paragraph 1.05A(1)(b).

12. Regulation 1.05A(1)(b) defines dependency as follows:

    (1)Subject to subregulation (2), a person (the "first person") is dependent on another person if:

    (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.

13. On 2 November 2022, the visa applicant was sent a Natural Justice letter by the Department inviting her to comment regarding the adverse information relating to her eligibility to meet the definition of member of family unit under reg 1.05A(1)(b). No response was received to the letter.

14. On 22 December 2022 the applicant sought review of the decision of the delegate at the Administrative Appeals Tribunal.

15. On 20 November 2023 the Tribunal wrote to the applicant in the following terms:

    As per the delegate’s decision record, a copy of which you provided to the Tribunal, it
    is noted that the visa applicant, Ms Tu Ly Phung, was 23 years of age at the time of
    the delegate’s decision, and she is currently 24 years of age. As such, the visa
    applicant does not meet the requirements of reg 1.12(2)(b)(i) and reg 1.12(2)(b)(ii) of
    the Migration Regulations 1994 (the Regulations) for the grant of a Partner
    (Provisional) (Class UF) visa and was assessed under reg 1.12(b)(iii).

    The delegate refused to grant the visa applicant a Partner (Provisional) (Class UF)
    visa because she failed to meet the definition of “dependent” as set out in reg
    1.05A(1)(b) for the purposes of reg 1.12(2)(b)(iii) in that she did not provide evidence
    to show that she is wholly or substantially reliant on the family head or the spouse or
    de facto partner of the family head for financial support because she is incapacitated
    for work due to the total or partial loss of her bodily or mental functions.

    You are requested to provide the following information:

    Please provide evidence to show that the visa applicant meets the requirements of reg 1.05A(1)(b), that being that the visa applicant is dependent on the family head, or the spouse or de factor partner of the family head, for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

16. On 8 December 2023 the review applicant provided a submission setting out the impact of the time delay in considering the visa application, the financial support the visa applicant receives from her father, the primary visa applicant and the visa applicant’s emotional dependency on the primary visa applicant and the review applicant. A statutory declaration from the visa applicant was provided setting out her reliance on her father financially and emotionally. Receipts were also provided for the payment of her tuition fees as well as the relevant Overseas Student Confirmation of Enrolment.

17. As noted, the Regulations allow for a child of the family head or of a spouse or de facto partner of the family head, who is 23 years or older to be a member of the family unit under limited circumstances. Regulation 1.05A(1)(b) says for a person to be considered dependent on another person they must be wholly or substantially reliant on the family head or their partner for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. There was no medical evidence before the Tribunal that the visa applicant suffers from any physical or cognitive disability which means she is incapacitated for work due to the total or partial loss of bodily or mental functions.

18. The Tribunal accepts that the visa applicant is not happy at the prospect of not being able to stay with her father and younger brother in Australia, however no medical evidence was provided to establish that her emotional hardship causes her to be incapacitated for work.

19. Based on the evidence, the Tribunal finds:

    ·The visa applicant is the child of the primary visa applicant.

    ·The visa applicant is 23 years old.

    ·The visa applicant is dependent on the primary visa applicant for financial support.

    ·The visa applicant is not wholly or substantially reliant on the primary visa applicant or the review applicant for financial support because she is incapacitated for work due to the total or partial loss of bodily or mental functions

20. Given these findings, the Tribunal is not satisfied that the visa applicant meets the definition of dependent, as defined in reg 1.05A(1)(b) and consequently she does not meet the requirements of reg 1.12(2)(b)(iii). Therefore, she is not a member of the family unit of the primary visa applicant at time of decision and accordingly, cl 309.321 is not met and the decision under review must be affirmed.

21. There is no discretion for the Tribunal to waive the need to meet cl 309.321.

22. For the reasons above, the visa applicant does not satisfy the time of decision criteria for the grant of the visa.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF).

    Moira Brophy
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the 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 is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     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 factor 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 (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    1.05A  Dependent

    (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.

    (2) …