NICHOLSON (Migration)

[2017] AATA 56

NICHOLSON (Migration) [2017] AATA 56 (3 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luke Martin NICHOLSON

CASE NUMBER:  1600693

DIBP REFERENCE(S):  CLF2015/55610

MEMBER:Michelle Grau

DATE:3 January 2017

PLACE OF DECISION:  Brisbane

DECISION:The tribunal affirms the decision not to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 03 January 2017 at 11:35am

CATCHWORDS

Migration – Extended Eligibility (Temporary)(Class TK) visa – Subclass 445 – Not wholly or substantially reliant on his mother – Limited funds and support – Greater reliance for food and shelter on family friend – No evidence of payments to family friend  –Limited documentary evidence of financial support – Not a dependent

LEGISLATION

Migration Act 1958,

cl. 445.211, 223, r.1.03, r.1.05A

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 made by a delegate of the Minister for Immigration on 5 January 2016 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 September 2015. The delegate refused to grant the visa on the basis that the applicant was not dependent upon the sponsor.

3. The applicant appeared before the Tribunal on 13 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and stepfather.

4. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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 case is whether the visa applicant is dependent upon his mother, Ms Kennedy.

7. A subclass 445 visa is a temporary visa for a child or stepchild of a parent who holds a temporary partner visa and has not yet been granted a permanent partner visa.  This means that the child's parent must hold one of the following visas:

   ·temporary partner visa (subclasses 309 or 820)

   ·temporary interdependency visa (subclasses 310 or 826)

   ·temporary dependent child subclass 445.

8. Applicants for this visa will require sponsorship from the same person sponsoring the child's visa-holding parent.

9. The visa applicant is a 24 year old male from the United Kingdom. His mother is Ms Kennedy, who resides in Australia on a temporary 309 partner visa.

10. The applicant claims he completed high school in July 2009, did a counselling course from 2009 until April 2011. He worked as a grocery sales assistant from September 2010 until October 2010. He lived with his mother until she migrated to Australia.

11. After his mother migrated to Australia in 2012, he lived at his mother’s friend’s home, Ms Deans. He stayed at her home in return for household chores. The applicant’s mother left him money to live on. He could not find work, though he applied for jobs. His mother would occasionally post him money if he needed more. He also looked after his grandmother in until she passed away in March 2015. His mother provided him with more money in April 2015, when she visited him.

12. At review the applicant provided a letter from Ms Deans and some receipts for clothing and accessories. Parts of the mother’s bank statements showed some payments for clothes and the applicant’s study in 2016. There was evidence of a birthday present for $57 in September 2014 and small amounts for insurance and other minor items from July 2015.

13. Clause 445.211 provides the primary criteria that need to be satisfied a the time of the visa application:

    The applicant:

    (a)    is a dependent child of a visa-holding parent; and

    (b)    is sponsored by the nominator or sponsor of the visa-holding parent.

14. Clause 445.222 provides that at the time of decision the applicant continues to be a dependent child of the visa holding parent.

15. The term “dependent child” is defined in r.1.03:

    dependent child
    means 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), being a 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 bodily or mental functions.

16. “Dependent” has the meaning given by regulation 1.05A:

    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…..

17. There is nothing in the definition of dependency that requires an able bodied person to get a job. In the Full Federal Court case in 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.

18. The tribunal accepts the visa applicant has received some financial support from his mother, but 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. 

19. Furthermore, the 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 relevant time is the date of application, 7 September 2015. 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.

    Hearing summary

    The applicant’s evidence

20. At hearing the applicant confirmed he completed his A levels when he was 18 in 2011/2012. He worked 16 hours a week at a grocery store but those hours were reduced and he stopped working a few months after he finished school. He lived at home and his mother provided his food, clothing and shelter.

21. When his mother moved to Australia in September 2012 the applicant moved in with a family friend, Mrs Deans. Mrs Deans’ son and the applicant were best friends at school and knew each other since they were seven years old. The applicant lived rent free in the garage with Ms Dean’s son. The family lived in the house. The applicant bought bits and pieces of groceries. The applicant said he spent about 10 to 20 pounds a week on his groceries. The tribunal noted he could not have bought very much for that. The applicant said he ate rice, noodles, bread and fruit. He shared some ingredients in the pantry and sometimes he had leftovers of the Deans’ family meal.

22. The applicant’s mother would send him cash occasionally in a card in the mail of $100 to $150. He could not find a job. He did not seek unemployment benefits as he had left his grocery job and was precluded for a period. He did not know how long he was precluded for. He did not spend much and stayed at home, played on the computer, played his guitar nad occasional unpaid gigs. He did not go out or go to pubs.

23. The applicant said his mother left him 2000 pounds in cash, which he kept in the garage. He did not put it in the bank account as he worried that the tax man may wonder why he had money in the bank if he did not have job.  The applicant did not have any of his UK bank statements as he shredded them before he left the UK.

24. When the applicant’s mother came to the UK in March 2015, she gave him approximately 600 pounds of his grandmother’s cash that was found in the loft. His mother also bought his spectacles and sent him underwear and presents in the mail.

25. The applicant arrived in Australia in August 2015 and commenced study in a diploma in counselling in June 2016. Since then he has lived with his mother and her partner and they provide food, clothing and shelter and all his needs. They do not give him an allowance or regular amount of money, but sometimes give him cash or put money in his bank account when he needs it.

    The witness’ evidence

26. The applicant’s mother confirmed she sent the applicant cash occasionally in the mail of about $200, as it avoided bank transfer fees. She provided documentary evidence she had paid for his plane ticket and travel insurance and some presents.

27. The applicant’s mother said she was trying to come to an arrangement to repay Mrs Deans but Mrs Deans would not take any money. The applicant’s mother planned to send Mrs Deans a cheque as she had some money in her UK account from the inheritance. She sent Mrs Deans Christmas presents recently and thought about sending her a cheque as well. However, the applicant’s mother did not send a cheque as she thought she should send it by registered mail.  The tribunal expressed doubt that she would avoid sending a cheque in the mail, but post cash in the mail. The applicant’s mother said the cheque would have been for a larger amount.

28. At hearing, the applicant’s mother and step father confirmed the applicant was low maintenance and they provided for him. He was an online gamer and did not have many expenses. The mother bought his computer and games. The stepfather confirmed they provided the applicant with his fares, food, clothing and all his expenses. The applicant’s mother earned $50,000 a year and paid $220 a week towards the mortgage. Her partner paid $220 also. The grocery bill was $100 - $150 a week.

29. Mrs Dean’s letter stated she had known the applicant and his mother since the applicant was 7 years old. She offered for him to stay with them until he could join his mother in Australia. The applicant’s mother left enough cash for him to keep him going until they met in the New Year. She continued to support him and provide anything he needed as work was hard to find. His mother also helped the applicant financially in 2014 as he was helping his grandmother.

    FINDINGS AND REASONS

30. The tribunal accepts at time of decision the applicant is wholly reliant on his mother for his food, clothing and shelter as he has lived at home with her since his arrival in Australia in August 2015. He earns no income and she buys his groceries and clothes. At review this was evidenced with receipts and some bank transfers.

31. However, between September 2012 and August 2015, the applicant lived rent free in the UK with a close family friend, Mrs Deans. The applicant claimed he was supported by his mother with cash payments.

32. The tribunal considers the applicant’s shelter was provided by Mrs Deans for three years until the applicant’s arrival in Australia on 22 August 2015.

33. The tribunal accepts the provision of a place to stay by Mrs Deans was because they were family friends and thought it was for a short time, albeit it ended up being for three years. However, the tribunal rejects the agent’s submission that applicant’s friendship with the Dean family was a type of payment and therefore the shelter should be considered to be provided by the applicant’s mother.

34. The tribunal does not accept the agent submissions there was a plan to repay Mrs Deans or is a future plan to send her cheque which amounts to a contract.  The tribunal does not accept there was an oral contract to do so, as the evidence was Mrs Deans refused payment from the applicant’s mother. Further, there is no documentary evidence of any contract or agreement to pay for the accommodation in the past or future. Further, the applicant was not aware of any arrangement or discussion to repay Mrs Deans. 

35. It may be that the applicant’s mother now wants to show her appreciation to Mrs Deans, but this does not change the fact that the shelter was provided to the applicant by Mrs Deans rent free and with no expectation of repayment. The tribunal considers Mrs Deans offered and provided the applicant with a place to live. The tribunal considers such an arrangement not unusual given the applicant and Mrs Deans’ son were best friends and they had known each other since they were seven years old. The tribunal finds the applicant received his shelter from Mrs Deans for three years from September 2012.

36. The tribunal considers food was also provided by Ms Deans. While the applicant claimed he had separate groceries, it was evident he spent very little on them. The tribunal does not accept he was self-reliant for his own food. The tribunal considers, given the small amount the applicant spent, and the fact that he shared some ingredients and sometimes ate their leftovers suggests he was provided food with the lodging. That Mrs Deans’ family were family friends further reinforces the tribunal’s view that he was provided lodging, which included food. The tribunal accepts he may have contributed bits and pieces, but finds his food was also provided by Mrs Deans.

37. It is claimed the applicant’s mother financially supported the applicant while he lived in the UK, but there was very limited documentary evidence of this. The applicant claimed his mother provided him with cash and if they had known what they needed they would have had more evidence. He claimed 2000 pounds was given to him, but his mother said it was 1800. Mrs Dean’s letter was not specific about amounts, but said the applicant’s mother left him cash to keep him going until they met in the New Year and supported him.

38. No bank statements for the applicant were provided. The tribunal has considered the applicant’s mother’s bank statements provided. The tribunal accepts there was evidence of $200 cash withdrawal and postage of a present in September 2014 and purchase of Tshirts for less than $30 in June 2015. There was evidence of purchase of antenna point and items for his room in preparation of his relocation to Australia just before his arrival and a small amount spent on outings when they visited each other. However, the tribunal was concerned that there was almost no documentary evidence of payments or transfers to the applicant while he was in the UK between September 2012 and August 2015. The documentary evidence was not consistent with the applicant claims.

39. While it was claimed he was sent some cash in the mail, there was limited evidence of that with one cash withdrawal in September 2014 for the applicant’s birthday. The applicant claimed his mother sent $100 – $150 cash in the mail from time to time. The applicant’s mother said she sent $200 from time to time.  While not a significant difference, in the absence of documentary evidence of the applicant’s bank statements and the limited evidence in his mother’s bank statements the tribunal is not satisfied that regular or large amounts of support money were given to the applicant or sent.  In his 359AA response about his mother’s evidence, the applicant said they never discussed money and he did not pay attention.

40. Further, even if the applicant was left 2,600 pounds (which is not accepted) and is ‘low maintenance’, the tribunal considers this is a small amount of money to sustain him for three years. Further, the claimed mail payment amounts were not regular and small.

41. The tribunal has considered the evidence provided, but given the lack of and limited documentary evidence it is not satisfied the applicant was sent or given large sums of money. The tribunal accepts the applicant received some money from his mother but does not accept that it was very much as there is no documentary evidence of transfer of money and evidence of only one cash withdrawal by his mother. Further, the applicant’s evidence was he did not spend much money as he did not go out and his mother sent him some underwear, bought his glasses and some clothes when on a visit.

42. The difficulty is that it appears and the tribunal finds that for between September 2012 and August 2015, the applicant was wholly reliant for shelter with Mrs Deans and substantially reliant on her for food.  While he may have been reliant on his mother for clothing, entertainment, medical, or other expenses, the tribunal finds he had a greater reliance on Mrs Deans during that period. The tribunal has considered the applicant’s short holiday and visit to Australia in 2013, but it does not change the tribunal’s view of the applicant’s reliance on Mrs Deans.  While the tribunal accepts the applicant received some support from his mother who provided some clothes and limited funds, the tribunal considers the applicant relied more on Mrs Deans for provision of food and shelter. He spent very little on clothing and weekly food purchases of 10 to 20 pounds. Therefore, the tribunal finds the applicant’s greatest reliance was on Mrs Deans for shelter and food.

43. The tribunal considers a substantial period prior to application is a lengthy period. The applicant was only living with his mother for less than a month prior to the visa application. The tribunal does not consider a month to be a substantial period. The applicant lived with Mrs Deans from September 2012 until August 2015, which is a three year period. The tribunal accepts the applicant did not intend at first to remain in the UK that long, but he wanted to stay near his grandmother, who did not pass away until March 2015. However, the tribunal considers the three year period September 2012 to September 2015 is a substantial period and not a short period, immediately before the application. This is particularly so given the applicant is 24 years old and it was in a period after he had finished school.

44. The tribunal finds for a substantial period immediately before the time of application, the applicant had not been wholly or substantially reliant on his mother for food, clothing and shelter because he had been reliant on Mrs Deans. 

45. Further, for a substantial period immediately before the time of application, the tribunal is not satisfied the visa applicant’s reliance on his mother is greater than any reliance by the visa applicant on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter. As discussed above the tribunal considers the applicant relied more on Mrs Deans.

46. Further, on the evidence before it, the tribunal is not satisfied the visa applicant is wholly or substantially reliant on his mother for financial support because he is incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions. At hearing the applicant confirmed he had worked in the past, but was unable to find work and he did not have any medical issues.

47. The tribunal therefore finds the applicant does not meet the definition of dependent in r.1.05A at time of application. As a result he does not meet the definition of dependent child at time of application.

48. Accordingly, the tribunal is not satisfied that the visa applicant meets cl.445.211.

    DECISION

49. The tribunal affirms the decision not to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa.

    Michelle Grau
    Member