PHAM (Migration)

[2020] AATA 6062

PHAM (Migration) [2020] AATA 6062 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN TINH PHAM

VISA APPLICANT:  Mr CONG SY VUONG

CASE NUMBER:  1929425

DIBP REFERENCE(S):  BCC2018/2911254

MEMBER:Helen Kroger

DATE: 9 December 2020

PLACE OF DECISION:  Melbourne

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.309.211(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 09 December 2020 at 11:00am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – ‘dependent child’ – visa applicant is a dependent of the family head as defined in regulation 1.05A – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.05, 1.12, Schedule 2, cls 309.211, 309.221, 309.311

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 26 September 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act).

2. On the 3 August 2018, Ms Thi Chi Phung, the primary applicant, applied for the visa on the basis of her spousal relationship with her sponsor, Mr Van Tinh Pham, who is the review applicant in the present case. Mr Cong Sy Vuong, is the primary applicant’s son and included as the secondary applicant in that application.

3. At the time of application, Class UF contained only one subclass: Subclass 309 Partner (Provisional) and Partner (Migrant) (Class BC) (Subclass 100). The criteria for this visa are set out in 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 the secondary criteria only. The secondary criteria include cl.309.311.

4. The review applicant provided the Tribunal with a copy of the primary decision for the purpose of its consideration. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 of Schedule 2 to the Regulations, namely, that the secondary applicant is not dependent on the primary applicant as per Regulation 1.03.

5. The review applicant was invited to appear before the Tribunal on 9 December 2020 by teleconference, consistent with the Act. The hearing was cancelled as this Tribunal considered all the evidence before it, including a late submission made on the 9 December 2020 and has made this decision on the basis of all the evidence before it.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. A secondary applicant for a visa of this class needs to satisfy, amongst other things, the following criteria.

   Regulation 309.3 Secondary criteria

   The secondary criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

   309.31criteria to be satisfied at time of application

   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.

   309.312

   The sponsorship referred to in clause 309.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.

   309.32 Criteria to be satisfied at 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); 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.

   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.

   (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)

   Regulation 1.05A defines Dependent

   (1) Subject to sub regulation (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.

9. In this matter, the primary visa applicant, Ms Thi Chi Phung is taken to be the family head (and mother). The visa applicant, Mr Cong Sy Vuong, is listed as the family head’s dependent son.

10. The Tribunal has considered whether the visa applicant meets Regulation 1.12(c). Regulation 1.12(c) states that a person is a dependent child of a person who meets the conditions in paragraph (b).  Regulation 1.05A(1)(i) as set out above further defines Dependent.  

11. The Tribunal invited the secondary applicant to comment on his circumstances with particular regard to his claim of financial dependency on his mother, the primary applicant. The Tribunal has particular regard to the delegate’s grant of a separate visa application, a Subclass 101 Child visa to the visa applicant, Mr Cong Sy Vuong, on 8 December 2020. The criteria for consideration of this grant is the definition of a ‘dependent child’ as defined in regulation 1.05A and detailed above. The Tribunal has reflected on the delegate’s consideration and as such, is satisfied that the visa applicant is a dependent of the family head, as defined in regulation 1.05A.

12. Given all of the above, the review applicant has satisfied this Tribunal that the visa applicant is the dependent child of the family head at the time of the application and at the time of decision, and therefore satisfies cl.309.311 and cl.309.321 in Schedule 2 of the Regulations. As the visa applicant does meet the requirements of cl.309.311 and cl.309.321, the Tribunal finds the criteria for the grant of a Partner (Provisional) (Class UF) (Subclass 309) is met.

13. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration with the direction that the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 of the Regulations.

    Helen Kroger
    Member