Shan (Migration)

[2024] AATA 3472

Shan (Migration) [2024] AATA 3472 (13 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chao Shan

CASE NUMBER:  2207911

HOME AFFAIRS REFERENCE(S):          BCC2019/1363078

MEMBER:Mary Sheargold

DATE:13 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.

Statement made on 13 September 2024 at 7:49am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – member of the family unit – de facto partner – relationship ceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.09A, 1.12; Schedule 2, cl 190.311

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 Home Affairs to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 March 2019. The delegate refused to grant the visa on 12 May 2022 on the basis that the applicant did not satisfy the requirements of cl 190.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 190.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of Ms Yuanyuan Ding at the time of decision.

3. The applicant appeared before the Tribunal on 30 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the applicant is a member of the family unit of Ms Yuanyuan Ding and satisfies cl 190.311.

6. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (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.

7. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

8. In this instance, the applicant is claiming to be the de facto partner of Ms Ding.

   DE FACTO

9. A person is a ‘de facto partner’ if they are in a ‘de facto relationship’ with the family head. ‘De facto partner’ is defined in s 5CB the Act, which provides that: the couple must not be married to each other or related by family; the couple must have a mutual commitment to a shared life to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.

10. When considering whether the above requirements in s 5CB are satisfied and the applicant is the de facto partner of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

11. On 16 May 2024, the Tribunal heard Ms Ding’s substantive application, and Mr Shao appeared as a witness in support.  During that hearing, he confirmed that he was no longer in a relationship with Ms Ding.

12. After that hearing, still on 16 May 2024, the Tribunal wrote to Mr Shao pursuant to s 359A of the Act, inviting him to comment on information that had come before the Tribunal, via Ms Ding’s hearing, that he was no longer a member of her family unit.  The letter stated that if the Tribunal relied on this information, it may find he is not able to meet one of the criteria for the grant of the visa.  He was invited to provide written comments by 30 May 2024. 

13. On 30 May 2024, Mr Shao wrote to the Tribunal seeking an extension of time to respond to the Tribunal’s invitation.  An extension was granted to 13 June 2024.  On 13 June 2024, Mr Shao provided written comments.  He stated that he agreed he was no longer in a relationship with Ms Ding, but went on to state:

    …my question is that we already proved that we were not in a fake relationship between me and DING, so I should no longer have the 4020 bar.  I would like to ask you guys to return my application to the immigration officer for any other further decisions. thank you

14. The Tribunal set the matter down for hearing but Mr Shao requested additional time before coming to the Tribunal so he could prepare his case.  He stated that he required at least 6 weeks’ notice of a hearing date.  On 17 July 2024, the Tribunal invited him to attend a hearing on 30 August 2024. 

15. At the hearing, the Tribunal quickly established that Mr Shao was in furious agreement that his relationship with Ms Ding had ended, and that he accepted that this meant he would not be granted a Subclass 190 visa as her dependant.  However, he emphasised his concern, as outlined in his written comments of 13 June 2024, that he would face a ban on future visas due to PIC 4020.

16. The Tribunal explained to Mr Shao that, in the Tribunal’s view, the PIC 4020 issue was confined to Ms Ding as the primary applicant for the visa, and that his application was only being assessed against the secondary criteria for the visa.  Mr Shao confirmed that he was not making claims of his own that he could meet the primary criteria.

17. Mr Shao requested again that the Tribunal defer to the Department to make a final decision on his application.  The Tribunal explained that this was not possible procedurally, and that as it was affirming the delegate’s decision on the same basis under which the delegate refused to grant the visa, the final decision would be the Tribunal’s.  However, the Tribunal offered to comfort Mr Shao by including in this written decision record a statement regarding both Mr Shao and Ms Ding’s conduct in making this application originally, highlighting its belief that neither party had provided any documents or information to the Department that was false or misleading in a material particular in relation to Ms Ding’s Subclass 190 visa application, to which Mr Shao was a secondary applicant.

18. Mr Shao confirmed again during the hearing that he was definitely not in a relationship with Ms Ding anymore and advised the Tribunal that he believes she is at least 4 to 5 months pregnant at the moment, and that he is not the father of the child.

19. Accordingly, based on all the evidence Mr Shao has provided to the Tribunal, the Tribunal finds that he is no longer the de facto partner of the family head, and cl 190.311 is not met.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent).

    Mary Sheargold
    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) …