Pinto Soares Dos Santos Moreira (Migration)

[2017] AATA 1926

Pinto Soares Dos Santos Moreira (Migration) [2017] AATA 1926 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ricardo Pinto Soares Dos Santos Moreira

CASE NUMBER:  1616723

DIBP REFERENCE(S):  bcc2015/1976762

MEMBER:Wendy Banfield

DATE:12 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.311 of Schedule 2 to the Regulations

·cl.820.321 of Schedule 2 of the Regulations

Statement made on 12 October 2017 at 6:48pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Financial support – Member of the family unit – Dependent – Consistent evidence

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 103, r 1.05, r 1.12, cl 309.321, cl 820.311, cl 820.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 19 September 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 July 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.321 because she did not meet the legal requirements.

   Background

4. The applicant is a citizen of Portugal and is 20 years old. He came to Australia as a secondary applicant with his mother Ms Melene Pinto Soares Kelleher and is sponsored by her partner. The applicant has undertaken periods of work in the hospitality industry since arriving in Australia. He lives with his mother, stepfather and sister in Lewisham, New South Wales. The applicant intends to commence studies in Music and Performing Arts at TAFE in 2018.

5. The applicant appeared before the Tribunal on 3 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Melene Pinto Soares Kelleher.

6. The 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. The issue in the present case is whether the secondary applicant was a member of the family unit of the primary applicant and sponsor at the time the visa application was made and continued to be at the time of the decision and whether he met the definition of a ‘dependent’.

9. To meet the requirements of cl.820.311, the secondary applicant must be a ‘member of the family unit’ as defined in. r.1.12(1)(b) which means a dependent child of the family head or of the spouse or de facto partner of the family head. The definition of a dependent child in r.1.03 includes a person who has turned 18 and is ‘dependent’ on the person or is incapacitated for work due to total or partial loss of bodily or mental functions.

10. The definition of ‘dependent’ in r.1.05A requires the secondary applicant to have been for a substantial period immediately before the relevant time, wholly or substantially reliant on the other person for financial support to meet his basic needs for food, clothing and shelter; and that such reliance on the other person is greater than the reliance on any other person or source of financial support.

11. In making a decision in this case, the Tribunal has considered all the circumstances of the visa applicant in assessing whether he is substantially reliant on his mother for financial support to meet his basic needs for food, clothing and shelter; and whether that reliance is greater than reliance on any other person or another source of financial support.

12. During the hearing, the secondary applicant gave evidence about his education, work history and activities since finishing his schooling in Portugal in 2014. He declared he ceased studying during the equivalent of Year 10 in 2014 having repeated one year. His education ended because the applicant was accompanying his mother (the primary applicant), step-father (the sponsor) and sister to Indonesia where the family resided for several months due to the sponsor’s employment. The applicant had not wanted to resume studying at that point and instead pursued his interest in music. The applicant declared he had done occasional work as a musician in Indonesia at an Italian Restaurant and was paid a small fee.

13. The applicant then arrived in Australia with his family in April 2015. According to the primary applicant, the secondary applicant did not want to study at the time and instead undertook casual work as a kitchen hand and waiter. He was employed for short periods on a casual basis, usually working on-call shifts. At the time of application, the secondary applicant was working as a waiter but declared it had only lasted for four months in mid-2015.

14. The Tribunal found the secondary applicant to be somewhat evasive about his work history since arriving in Australia, although he provided an account of other activities he had been involved in. The applicant’s mother gave what the Tribunal considered to be a full and credible account of her son’s activities since abandoning his formal education in 2014. Mrs Pinto Soares Kelleher said her son had a number of short-term, mostly casual engagements in the hospitality industry and provided the names and/or details of the establishments. Mrs Pinto Soares Kelleher told the Tribunal the secondary applicant had undertaken casual work after being pressed to by his family who told him he had to either study or make efforts to find employment. According to Mrs Pinto Soares Kelleher, the secondary applicant’s short stints of work persuaded him to return to study and he plans to attend TAFE next year.

15. Both witnesses before the Tribunal provided consistent evidence about the financial support provided to the secondary applicant by his mother and step-father. The secondary applicant said his mother and step-father provide for his accommodation, meals, utilities, clothing and pocket money where necessary. It was claimed that any money the secondary applicant earned from casual work was used to pursue his interest in music and was not sufficient for him to live independently. Mrs Pinto Soares Kelleher provided a written statement also setting out her continued financial support of the secondary applicant and said he continues to be as reliant upon her as her younger daughter and will continue to be dependent when he studies at TAFE.

16. The applicant’s representative provided further documents post-hearing including the applicant’s Commonwealth Bank statements, details of his proposed TAFE course and a written submission. The Tribunal has taken this information into account in its decision.

17. The secondary applicant does not have support from his biological father and only has a sister remaining in Portugal. Having had the opportunity of seeing and speaking to the applicants at the hearing, the Tribunal accepts the secondary applicant is still primarily dependent upon his mother for financial support and that dependence is greater than support from any other source.

18. 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 820 visa.

    DECISION

19. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.311 of Schedule 2 to the Regulations

    ·cl.820.321 of Schedule 2 of the Regulations

    Wendy Banfield
    Member