Skoumpouris (Migration)

[2018] AATA 103

Skoumpouris (Migration) [2018] AATA 103 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Skoumpouris

CASE NUMBER:  1614754

DIBP REFERENCE(S):  CLF2016/28370

MEMBER:Wendy Banfield

DATE:15 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2018 at 7:07pm

CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – Applicant’s income – No bank statements submitted – Received support from father or aunt

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03(b)(i) , 1.05A, Schedule 1 Item 1211(4), Schedule 2 cl 445.211

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 September 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 9 May 2016. The delegate refused to grant the visa on the basis that at the relevant time, the applicant was not a dependent child of his mother who is the visa holding parent. The applicant sought a review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Foteini Kotrotsuu, the applicant’s mother and from Mr Dioissios Fragogiannis, the applicant’s step-father. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

6. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations.

7. Clause 445.211 relevantly provides that at the time the application is made, the applicant must be a dependent child of a visa-holding parent. At the time of decision, cl. 445.222 requires the visa applicant to continue to be the dependent child of the visa holding parent.

8. ‘Dependent child’ is defined in r.1.03 of the Regulations. The term ‘dependent’ is defined in r.1.05A as follows:

   (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.

9. The applicant provided evidence of being a child of the visa-holding parent (his mother). Also included with the primary application is evidence that the visa applicant’s mother had been granted a Partner visa. The Tribunal is satisfied that the applicant is the child of the relevant parent and also that his mother is a ‘visa-holding parent’.

10. The applicant was born on 30 December 1994 and had turned 18 at the time of application. The Tribunal must therefore consider whether the visa applicant is a dependent child of his mother at the time of this decision, within the meaning of r. 1.05A and for the purpose of cl. 445.222.

11. The visa applicant provided to the Tribunal a copy of the primary decision record. The delegate stated the applicant needed to demonstrate that he had been a dependent child for at least 12 months prior to lodging his application, that is, from at least 9 May 2015 to 8 May 2016. It was found the visa applicant provided evidence of funds transferred to him prior to July 2015 and from January 2016. However, there was no evidence of funds transfers for the period July to December 2015.

12. As this period coincided with the applicant undertaking paid employment and requested bank statements were not provided, the delegate was not satisfied the applicant was dependent on his mother for his basic needs of food, shelter and clothing for that period. For that reason, the applicant was found not to meet the definition of dependent child under r.1.03(b)(i).

13. The visa applicant, his mother and step-father gave evidence that during the relevant period, the applicant was required to undertake work experience which he did in Mykonos in Greece. He was stated that he was paid 300 Euros per month and was required to provide for his own accommodation.  The applicant’s mother said she was unable to provide the visa applicant with much financial support at the time because she had some difficulties but claimed that her sister took over.

14. The Department noted the applicant had not submitted his own bank statements for the relevant period of July to December 2015. There was evidence of his mother and step-father’s bank accounts provided to the Department and the Tribunal but despite acknowledging he was paid a ‘wage’, the applicant’s own bank statements were not provided. The Tribunal finds it significant that the evidence that would demonstrate the applicant’s income for the period in question has not been forthcoming and is concerned this is because it would not support the visa applicant’s claims of not having received sufficient income for his basic needs.

15. The applicant’s representative submitted that it was open to the Tribunal to consider the wider picture of the applicant’s dependency upon his mother, rather than the 12 months prior to the visa application. The Tribunal agrees this is the case but is nevertheless not satisfied the visa applicant’s reliance on his mother or step-father was greater than his reliance on any other person or source financial support to meet this basic need for food, shelter and clothing. While the Tribunal accepts the visa applicant’s mother sent him funds on a semi-regular basis, while in Greece he continued to live with either his father or aunt, who also provided him with support.

16. There is no evidence the visa applicant is wholly or substantially reliant on his mother or step-father for financial support because the visa applicant is incapacitated for work due to total or partial loss of his bodily or mental functions. He does not meet r.1.05A(1)(b).

17. As the applicant does not meet the definition of ‘dependent’ in r.1.05A and therefore was not a ‘dependent child’ in accordance with r.1.03, he does not meet cl.445.211. As the visa applicant has not continued to be the dependent child of the visa holding parent, he does not meet cl.445.221.

    DECISION

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

    Wendy Banfield
    Member