Thanphanith (Migration)

[2021] AATA 1583

Thanphanith (Migration) [2021] AATA 1583 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rothanik Thanphanith
Ms Nutchhana Thanphanith

CASE NUMBER:  1923097

HOME AFFAIRS REFERENCE(S):          BCC2018/512282

MEMBER:David Crawshay

DATE:6 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 06 April 2021 at 2:25pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa - Subclass 820 – not dependants of primary applicant – first applicant not wholly or substantially reliant on primary visa applicant or sponsor for food, shelter and clothing at time of decision or for a substantial period immediately before the time of decision – second applicant married – living with Australian citizen husband and children – compelling reason for second applicant due to Australian citizen husband and children – second applicant can apply for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 65

Migration Regulations 1994, Schedule 2, cls 820.311, 820.321, rr 1.05A, 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant, Ms Rothanik Thanphanith, 20, and the second-named applicant, Ms Nutchhana Thanphanith, 26, applied for the visa on 25 January 2018 on the basis of being secondary applicants of the primary visa applicant, Ms Manou Chhoeun, their mother. Ms Chhoeun applied for a Partner (Temporary) visa on the basis of her relationship with her sponsor, Mr Michael Sittar Krishna. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). In the present case, the applicants are seeking to satisfy the secondary criteria for the grant of a Subclass 820 visa.

3. The delegate refused to grant the visas on the basis that the applicants did not satisfy cl.820.311 because they were found not to be dependent under r.1.05A.

4. The applicants appeared before the Tribunal on 11 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted as a combined hearing and was held remotely by means of Microsoft Teams video.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   EVIDENCE AT HEARING

7. The Tribunal heard firstly from the applicants’ representative, who said that his understanding was that the statutory declarations made by the primary visa applicant and the sponsor had not been translated “appropriately” and a lot of the contents were inconsistent with the current situation. These statutory declarations were signed by the primary visa applicant and the sponsor and dated 17 July 2019. As an example, he said that the statutory declaration said that the first-named applicant had worked which he said was not true in its entirety. At this point, the Tribunal put to the representative that the statutory declarations signed by the primary visa applicant and sponsor on 17 July 2019 did not state that the first-named applicant had worked and asked him to identify where this was written in the declarations, but he was not able to do so.

8. The Tribunal put to the representative that the claim that the first-named applicant was working did not come from the statutory declarations but from the notes of a conversation between the Department and the then-representative (refer Department folio 239) where the then-representative said that the first-named applicant had a job. This claim was also detailed in the delegate’s decision. The Tribunal asked whether what the then-representative said in the conversation was wrong, to which the second-named applicant replied that it was, and that the first-named applicant was not working and at that time and neither was she. The Tribunal asked the second-named applicant if she knew when this conversation between the then-representative and the Department took place, to which she replied that she did not. The Tribunal then asked the second-named applicant how she could know she was not working at that time if she did not know when it was. She replied that the first-named applicant was the one who moved to Melbourne. The first-named applicant said that her parents were asked to sign a paper to declare that she will live in Melbourne and work but this was not true as both were still dependent and neither had a job. The Tribunal put to the first-named applicant that the declarations said that the applicants were living in Melbourne at that time and not that they will live in Melbourne. The first-named applicant replied that at that moment she was living in Melbourne but was still dependent on her parents. The first-named applicant said that the then-representative did not explain to the primary visa applicant and the sponsor that they were signing a document to show that the applicants were living in Melbourne and were independent.

9. The Tribunal explained to the first-named applicant that she needs to be wholly or substantially dependent on the primary visa applicant in relation to her basic needs of shelter, clothing and food. It put its concerns to her that, out of the money credited to her account ending in xx9022 during the 2020 year according to statements from that account:

   ·$1,650 came from transfers from the primary visa applicant;

   ·$4,562 came from transfers from another account ending in xx4705 that it believed to be her savings account;

   ·$1,000 came from transfers from the account of the second-named applicant; and

   ·$2,790 came from cash deposits that were made in Springvale and Chadstone.

10. The Tribunal said that, based on this, it had concerns that the primary visa applicant had only provided to the first-named applicant a fraction of what the first-named applicant otherwise receives. The first-named applicant replied that as the primary visa applicant does not speak English and is not up-to-date with electronics and technology, the money that the first-named applicant deposits every month is the money that is provided to her by the primary visa applicant in cash. She said that the primary visa applicant would drive to see her every two-to-three weeks or vice versa, and she provided the money in cash and this would be deposited in her account. The first-named applicant said that the primary visa applicant does not know how to make bank transfers. The Tribunal shared the first of its concerns with the first-named applicant – namely, that the deposits from cash are made in Springvale and Chadstone in the period from July to December 2020 when the first-named applicant claims to have been living in Sydney. The first-named applicant replied that although she decided to move back in with the primary visa applicant in Sydney in July 2020, she still needed to travel to Melbourne to pick up her stuff and this was why she made the money deposits. The Tribunal put the second of its concerns to the first-named applicant – namely, that the lockdown had been taking place. It questioned her and the primary visa applicant’s ability to travel during the lockdown. The first-named applicant said that she moved to Sydney but decided to come back to Melbourne for her things. She said that she took a flight but the flight did not announce the lockdown. She said that she decided to move to Sydney and took a flight there in early July 2020 a day before the lockdown occurred. She said that was there for two months and then flew to Melbourne in mid-September 2020.

11. The Tribunal told the first-named applicant that, based on the dates of the deposits (being dates in 2 October 2020 in Springvale, 18 October 2020 in Springvale and 15 November 2020 in Springvale), it could perhaps believe that the first deposit was of money from the primary visa applicant given that the first-named applicant had at that stage recently travelled from Sydney. It said, however, that it had difficulty believing that the other two deposits were of money given to the first-named applicant by the primary visa applicant. The first-named applicant replied that the primary visa applicant flew down to Melbourne by plane and stayed for three-and-a-half months before travelling back to Sydney. The second-named applicant said that the primary visa applicant came down to Melbourne to help her after she gave birth. The Tribunal asked the first-named applicant how the primary visa applicant was able to come to Melbourne as the lockdown had not yet finished. She replied that the primary visa applicant came by plane.

12. The first-named applicant told the Tribunal that she stayed in Melbourne for a week that time before her friend drove her back to Sydney in early October 2020. The Tribunal put to her that the lockdown was on-foot at that stage, meaning that such travel would not have been allowed, and she said that she got confused and she may have left later. She said that she has not been to Melbourne since October 2020. At this point, the Tribunal put to her a cash deposit made into her account at Chadstone in November 2020. The second-named applicant said that this deposit may have been made by the primary visa applicant with help from the second-named applicant.

13. The Tribunal indicated that it may not be able to place weight on the correspondence addressed to the first-named applicant at the Green Valley address because she had nominated this address for correspondence in periods where she claims to have been living in Melbourne, including correspondence from the ATO. The applicant replied that her address is the Green Valley address.

14. The Tribunal also indicated that it may not be able to place much weight on the first-named applicant undertaking a course with TAFE NSW as evidence of her living in Sydney as it is an online course and can be done anywhere in the world. The applicant told the Tribunal that the course is a self-study course which is cheaper.

15. The Tribunal asked the first-named applicant if there was any other evidence to show that she had been living with the primary visa applicant and sponsor. The applicant said that her driver licence is made out with the Green Valley address. She said that she and the primary visa applicant and sponsor do the shopping and go out together.

16. The sponsor told the Tribunal that the first-named applicant lives with him and the primary visa applicant at that time. He said that he gives the primary visa applicant cash which she then gives onto the first-named applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is therefore whether the applicants satisfy the requirements of cl.820.321 at the time of this decision.

18. Clause 820.321 provides as follows:

    In the case of an applicant referred to in clause 820.311, the applicant:

    (a)   is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) 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 dependent on, or 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 820 (Partner) visa and a Subclass 801 (Partner) visa--the Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria.

19. The applicants must therefore either be dependent on or be a member of the family unit of the primary visa applicant at the time of decision.

20. “Dependent” has the following relevant meaning under r.1.05A of the Regulations:

    (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)   …

21. Subregulation (2) relates to protection, refugee and humanitarian visas and is not applicable here.

22. Additionally, there is no evidence in front of the Tribunal that the applicants were ever incapacitated in the manner contemplated by.1.05A(1)(b), and that subregulation does not apply.

23. “Member of the family unit” has the following relevant meaning under r.1.12 of the Regulations:

    (1)    

    (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 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 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).

    …

24. All other subregulations of r.1.12 relate to other visa classes and are not applicable to the present matter.

25. The requirements under cl.820.321 are slightly different for the first-named and second-named applicants:

    ·For the first-named applicant to satisfy the requirements of cl.820.321, in this case she must be found to have met r.1.05A(1)(a) at the time of this decision. In the alternative, she may satisfy the requirements of cl.820.321 if she is found to be dependent on the sponsor or on the primary visa applicant as per r.1.12(2)(b)(ii). There is an additional requirement in the case of r.1.12, however, that she not be engaged to be married or have a spouse or de facto partner – this is not a requirement which is found in r.1.05A. There is no evidence to show that the first-named applicant is engaged or has a spouse or de facto partner;

    ·For the second-named applicant to satisfy the requirements of cl.820.321, in this case she must either be found to satisfy the definition of “dependent” in r.1.05A(1)(a) or “member of the family unit” in r.1.12. However, she is required under r.1.12 to be dependent on the primary visa applicant or the sponsor because of incapacitation of the sort mentioned in r.1.05A(1)(b): r.1.12(2)(b)(iii). She must also not be found to be engaged to be married, or have a spouse or de facto partner.

    Is the first-named applicant dependent on or a member of the family unit of the primary visa applicant?

26. The Tribunal has considered and given weight to evidence provided in respect of support given to the first-named applicant by the primary visa applicant or the sponsor for the first-named applicant’s basic need for shelter.

27. The Tribunal has considered whether the first-named applicant was living with the primary visa applicant and the sponsor or was otherwise wholly or substantially reliant on these people for accommodation at the time of decision and for a substantial period immediately before then when assessing whether she was wholly or substantially reliant on the primary visa applicant or the sponsor for her basic need for shelter at those times.

28. A “substantial period” is not defined by the legislation, but Department policy states that it is usually taken to be at least 12 months. The Tribunal has considered the circumstances of the first-named applicant and of this matter. It has considered evidence showing that the first-named applicant embarked upon a diploma of business course at an educational institution in Melbourne in early-2020 after having not studied while in Australia. It has considered that at the time of commencing study, she had been living in Melbourne and away from the primary visa applicant and sponsor since 2018. The Tribunal finds that, in these circumstances, 12 months ought to be at the lower end of what should be considered a “substantial period” beforehand. It finds that the relevant period began in April 2020.

29. The Tribunal notes evidence given by the first-named applicant that she has been living with the primary visa applicant and the sponsor at the Green Valley address. It also notes correspondence addressed to the first-named applicant at the Green Valley address, as well as evidence that she is currently undertaking a course through TAFE NSW.

30. The correspondence includes documents from the ATO in respect of the first-named applicant such as notices of assessment and tax computation estimates for FY2017/18, FY2018/19 and FY2019/20. All list her address as the Green Valley address. However, the Tribunal gives little weight to this evidence as it indicates she lived at the Green Valley address during these periods (or at least at the time she was required to complete the documents and/or they were generated) when it is clear from her evidence that she was living in Melbourne from some time in 2018 until July 2020. If this be the case, then the Tribunal would expect that at least some of these documents reflect her home address as an address in Melbourne. For these reasons, it considers this evidence to be unreliable and not genuinely indicative of her home address.

31. Similarly, the Tribunal has considered the address given in statements in respect of the first-named applicant for the period from February 2018 to December 2020 from her ANZ and Commonwealth Bank accounts. The statements from her ANZ account, which span the period from February 2018 until April 2019 (with the exception of a period from August to October 2018), indicate that the first-named applicant had listed her address as being the Green Valley address for the whole period. The statements from her Commonwealth Bank account, which span a continuous period from October 2018 to December 2020, show that she listed her address as an address in Noble Park from October 2018 until June 2019 and then the Green Valley address from July 2019 until December 2020. Although the statements are not dated, the Tribunal has seen no evidence other than that they were generated at or just after the end of the period they relate to (which it considers is the normal process), meaning that they should be indicative of the first-named applicant’s address at these times or a little bit later and not at a much later date and are therefore more-or-less contemporaneous. That being the case, the Tribunal gives them very little weight as evidence of the first-named applicant’s home address as they are inconsistent with other evidence including evidence given by the first-named applicant at hearing that she had been living in Melbourne from a date in 2018 until July 2020. Indeed, they are inconsistent with each other in some cases where she is listed as living at the Noble Park and Green Valley addresses at the same time depending on which account statement you consult. It considers this evidence to be unreliable and not genuinely indicative of the first-named applicant’s home address.

1. The Tribunal has considered documents relating to the first-named applicant’s study through TAFE NSW, including a tax invoice dated 18 January 2021 which lists her address as being the Green Valley address. However, in light of the fact that the TAFE NSW course is able to be completed online and requires no face-to-face contact, it gives this evidence little weight to show that she was living in Sydney.

2. The Tribunal has considered a letter dated 3 March 2021 from a doctor that confirms the first-named applicant received two courses of a vaccination – the first on 24 July 2020 and the second on 17 September 2020. It notes that the address of the doctor’s practice on the letter is an address in Cabramatta. This letter is given weight as evidence that the first-named applicant was living in Sydney at those times.

3. The Tribunal also notes that she currently holds a NSW provisional driver licence which expires on 14 March 2022 and this licence lists her address as the Green Valley address. The Tribunal gives this evidence weight as evidence of her home address, and notes that she would likely have completed a driving test in NSW in order to be granted such a licence. Indeed, further evidence from the first-named applicant showed that she booked a driving test on 14 September 2020 at Liverpool. The Tribunal gives weight to this as evidence that the first-named applicant was living in Sydney at that time, being September 2020.

4. The Tribunal has also considered a series of three documents purporting to show purchases of women’s clothing and other items. Only one of these documents is dated (27 February 2021) and while that document lists the shipping address as the Green Valley address, it does not indicate to whom the clothes will be sent. A second document lists the Green Valley address as the shipping address and the first-named applicant as the person receiving the shipment; however, the document is undated. A third document does not contain any details relating to the first-named applicant’s address. Given the overall lack of details across all three of these documents, the Tribunal gives little weight to them as evidence of the first-named applicant’s home address being the Green Valley address or, where they purport to show her address as being the Green Valley address, when this was the case.

5. The Tribunal gives the most weight to statements from her Commonwealth Bank account for 2020 (her ANZ account having closed in April 2019) and travel itineraries. The travel itineraries showed that she travelled from Melbourne to Sydney on 6 July 2020 and from Sydney to Melbourne on 20 September 2020. There is no evidence to show that the first-named applicant did not travel as indicated by the itineraries.

6. As regards the bank statements, the Tribunal considers that they are comprehensive and indicate that the account was well-used. For example, in the period from January to June 2020, total credits for the account were $17,979 against debits of $17,377. For the period from July to December 2020, total credits and debits were $10,002 and $12,039 respectively. Helpfully, the account statements show the location of where transactions were made, and these locations appear to substantiate the first-named applicant’s movements as evidenced by the travel itineraries.

7. Based on the evidence in front of it, but especially on the bank account statements and the travel itineraries, the Tribunal finds that the first-named applicant was living between Melbourne and Sydney in the following way:

   ·she was living in Melbourne up until 6 July 2020 when she flew to Sydney – this accords with what she had claimed at hearing;

   ·she then lived in Sydney from 6 June 2020 until 20 September 2020 when she flew back down to Melbourne – this accords broadly with her evidence at hearing; and

   ·she lived in Melbourne from 20 September 2020 until she travelled to Sydney at some stage in early-December 2020 – this is at odds with her claim at hearing that she has not lived in Melbourne since October 2020; however, the Tribunal gives more weight to the bank account statements showing regular transactions taking place in suburbs of Melbourne up until a point in December 2020, where they then show two transactions taking place in Cabramatta on 12 December 2020.

8. Based on the evidence, the Tribunal is unsure where the first-named applicant had been living since December 2020. Even though it has seen evidence provided by her that purports to show that she has been living in Sydney, such as evidence from TAFE NSW, for the reasons given above it gives this evidence little weight. While it accepts that she was present at the Green Valley address at the time of the hearing, there is very little other evidence to show that she had been living there, such as bank statements or photographs that have been dated. In relation to the latter, the Tribunal notes that two photographs submitted post-hearing (one of which was taken at a house) are uncaptioned and undated, and it is not able to ascertain where and when these were taken without these details and whether they are evidence of the first-named applicant living at the Green Valley address.

9. Therefore, the most that can be said in relation to the first-named applicant’s living arrangements is that she was living in Sydney between 6 June and 20 September 2020. The Tribunal will assume for present purposes that she was living with the primary visa applicant and the sponsor at the Green Valley address during this period. It accepts that she was in Sydney at some point in December 2020 (given the two transactions made in Cabramatta on 12 December 2020) but is not satisfied that this was to live there and, as above, there is little probative evidence to show her living arrangements at or after this time. Therefore, the Tribunal is not satisfied that the first-named applicant lived with the primary visa applicant and the sponsor at the Green Valley address for any more than three-and-a-half months in the 12-month period that the Tribunal considers is a substantial period immediately before the date of decision.

10. The Tribunal has been provided no evidence to substantiate the first-named applicant’s claim that she has been supported for accommodation by the primary visa applicant while in Melbourne. It notes the claim of the first-named applicant that the primary visa applicant made cash deposits into her account – it accepts as a matter of logic that these payments, if made, could be used by the first-named applicant to pay for expenses including expenses related to accommodation. However, for the reasons given below, it highly doubts this evidence and believes it is more plausible that these deposits were made by the first-named applicant herself using her own money. Further, it notes her evidence at hearing that she and the primary visa applicant would drive to see each other every two-to-three weeks where the primary visa applicant would give her money that she would then deposit into her account. However, and again for the reasons given below, it does not accept her claim in this regard based on a lack of substantiating evidence. It finds that she was not supported by the primary visa applicant or the sponsor for her accommodation while living in Melbourne.

11. Given the above findings, which are to the effect that the first-named applicant spent the majority of the period living in Melbourne and was not supported by the primary visa applicant or the sponsor for her accommodation during this time, the Tribunal is not satisfied the first-named applicant was wholly or substantially reliant on the primary visa applicant or the sponsor for her basic needs of shelter at the time of decision or for a substantial period immediately before the time of decision.

12. The Tribunal has considered and given weight to evidence provided in respect of support given to the first-named applicant by the primary visa applicant or the sponsor for the first-named applicant’s basic needs for food and clothing.

13. In order to do this, the Tribunal has considered statements from the first-named applicant’s Commonwealth Bank account for 2020. It finds that the first-named applicant’s account received $1,650 from the primary visa applicant across seven individual bank transfers. It finds that, during the same period, her account received $12,850 from cash deposits, of which $7,010 was from cash deposits made from April to December 2020. It finds that $1,000 was from the second-named applicant, comprising two payments of $500 in July and August 2020.

14. When questioned by the Tribunal at hearing about the plausibility of selected cash deposits being made by or using money given to her by the primary visa applicant (being three of the deposits made in September and October 2020, two of which were made at Springvale and one at Chadstone), the first-named applicant told it that the primary visa applicant travelled to Melbourne for three-and-a-half months and that the money may have been deposited then. While it has seen travel itineraries to show that the primary visa applicant travelled to Melbourne in February 2020 and then back to Sydney in March 2020, as well as an itinerary showing that the primary visa applicant travelled from Sydney to Melbourne in December 2020, it has not seen evidence to show that the primary visa applicant was in Melbourne at the time any of these deposits was made. It places little weight on the first-named applicant’s claims as evidence of financial support given to her by the primary visa applicant.

15. The applicant further claimed at hearing that the primary visa applicant would drive to see her every two-to-three weeks and vice versa and that she would give money to the first-named applicant which she would then deposit into her account. There is no evidence to substantiate this claim, and certainly the first-named applicant’s bank statements do not suggest in any way that she made regular car trips to Sydney during the period that is a substantial period immediately before this decision. For these reasons, this claim is given very little weight by the Tribunal.

16. The Tribunal has considered a receipt dated 27 February 2021 and totalling $220 for clothes bought by the primary visa applicant. The Tribunal notes that there are no details of who the clothes were being bought for, and this evidence is given very little weight as evidence of financial support given by the primary visa applicant or the sponsor to the first-named applicant. The Tribunal has considered a further receipt for a bag and cardholder worth $168, although this receipt is undated and it is unclear for whom these items were bought and by whom, and therefore whether the items constitute support to the first-named applicant from the primary visa applicant or the sponsor. This evidence is given very little weight. The Tribunal has considered a document showing clothing totalling at least $170 to be shipped to the first-named applicant at the Green Valley address. While the receipt showed the first-named applicant as the recipient, there are no details of if or when these clothing items were purchased and by whom they were purchased. Again, the Tribunal is unable to ascertain whether these purchases were made by the primary visa applicant or the sponsor for the benefit of the first-named applicant. This evidence is given very little weight.

17. In contrast to this evidence, the Tribunal has considered evidence contained within the first-named applicant’s Commonwealth Bank statements that show $996 worth of transactions being made at a number of clothing stores – H & M, Cotton On, Uniqlo, Sportsgirl, Bardot and Zara – during the relevant period.

18. Having weighed the evidence against itself, the Tribunal finds that the first-named applicant received $1,650 in financial support through bank transfers from the primary visa applicant in the relevant period. It finds that there is no other identifiable means of financial support given to the first-named applicant by the primary visa applicant or the sponsor, and the Tribunal is not satisfied that the first-named applicant received any other financial support from the primary visa applicant or the sponsor.

19. Given that the evidence shows the first-named applicant received significantly more from a combination of cash deposits, money from the second-named applicant and money from transfers from another account which the Tribunal reasonably believes is her savings account, and given that she spent $996 of money from her account at various clothing stores, the Tribunal is not satisfied that the first-named applicant has been reliant on the primary visa applicant or the sponsor for financial support to meet her basic needs for food and clothing at the time of decision and for a substantial period immediately beforehand.

20. Based on the above findings, including findings made in relation to all three basic needs of food, clothing and shelter, the Tribunal is not satisfied that the first-named applicant has been wholly or substantially reliant on the primary visa applicant or the sponsor for financial support to meet her basic needs for food, clothing and shelter at the time of this decision and for a substantial period immediately beforehand. The Tribunal is not satisfied that the first-named applicant’s reliance on the primary visa applicant or the sponsor is greater than her reliance on any other person or source of support for financial support to meet her basic needs for food, clothing and shelter.

21. The first-named applicant therefore does not satisfy r.1.05A(1)(a) of the Regulations and does not meet the definition of “dependent” under r.1.05A. She does not meet the definition of “member of the family unit” under r.1.12(2)(b)(ii).

22. Therefore, the first-named applicant does not meet cl.820.321(a). There is no evidence that the first-named applicant meets cl.820.321(b) and in particular the Tribunal notes that the primary visa applicant has not been granted a subclass 801 visa.

    Is the second-named applicant dependent on or a member of the family unit of the primary visa applicant?

23. At hearing, the Tribunal explained to the second-named applicant that she needed to satisfy cl.820.321(a) relating to whether she was dependent on the primary visa applicant or was a member of the family unit of the primary visa applicant. It explained to her what dependency under r.1.05A(1)(a) of the Regulations entailed. It also told her that to be a member of the family unit, an applicant must not have a spouse or de facto partner or be engaged.

24. The Tribunal put to the second-named applicant that the evidence showed she was not dependent on the primary visa applicant in the manner contemplated by r.1.05A(1)(a) because it appeared she was living with her husband in Melbourne away from the primary visa applicant and the sponsor in Sydney and there was no evidence presented to show any financial reliance by her on the primary visa applicant. It put to her that she was also unable to satisfy the requirements related to the definition of “member of the family unit” under r.1.12 because she was married. The applicant conceded that this was the case and that she was no longer dependent on the primary visa applicant.

25. The Tribunal has reviewed the evidence, including evidence contained within the Department and Tribunal files and the testimony given by the second-named applicant at hearing. Specifically, the evidence shows that the second-named applicant is currently living at an address in Waterways, Melbourne and has been living at addresses in Melbourne’s south-east while the primary visa applicant has been living in Green Valley, Sydney, that she is married and she and her husband have one child and are expecting another, and that she and her husband have opened a joint bank account. Based on this evidence, and in the absence of any evidence to demonstrate reliance on the primary visa applicant in the manner contemplated by r.1.05A(1)(a), the Tribunal is not satisfied that the second-named applicant is wholly or substantially reliant on the primary visa applicant for financial support to meet her basic needs for food, clothing and shelter. It is not satisfied that the second-named applicant’s reliance on the primary visa applicant for food, clothing and shelter, if any, is greater than any reliance she has on any other person or source of support.

26. Therefore, the second-named applicant does not meet r.1.05A(1)(a).

27. Lastly, because there is clear evidence to show that the second-named applicant has a spouse, the Tribunal is not satisfied that she is a member of the family unit of the primary visa applicant as that term is defined under r.1.12 of the Regulations.

28. Therefore, the second-named applicant does not meet r.1.12.

29. Based on these findings, the Tribunal is not satisfied that the second-named applicant meets cl.820.321(a). There is no evidence that the second-named applicant meets cl.820.321(b) and in particular the Tribunal notes that the primary visa applicant has not yet been granted a subclass 801 visa.

30. Therefore, the second-named applicant does not meet cl.820.321, which is a requirement for the grant of the visa.

31. For the reasons above, the second-named applicant does not satisfy the criteria for the grant of the visa.

    MINISTERIAL INTERVENTION

32. After having told the second-named applicant of its intention to affirm the decision under review, the Tribunal asked her if she planned to apply for another visa. The applicant’s representative sought to speak on her behalf and told the Tribunal that there were a lot of “hurdles” that he came across when seeing if she could apply for another visa. He stated his belief that the second-named applicant could not apply for a visa onshore because she would be subject to the statutory bar under s.48 of the Act, even though she was included as a secondary visa applicant in primary visa applicant’s primary application. He said that there was no exception to the operation of the bar.

33. The Tribunal broached the subject of ministerial intervention given the circumstances the second-named applicant found herself in as a mother and wife of Australian citizens and with a baby on the way whom she stated would also carry Australian citizenship due to its father. At hearing, the second-named applicant told it that her child had developmental delays that were being investigated. The Tribunal notes in this regard a letter of 5 March 2021 from the child’s paediatrician that commented on the child’s limited vocalisation and interaction, although it appears that no diagnosis has been made. The Tribunal told the representative that, while there may be worthy reasons to bring the second-named applicant’s matter to the attention of the minister for consideration, there may also be reasons to consider it to be inappropriate given that the guidelines state that it would be inappropriate where a person was able to apply for an onshore partner visa, or where a person’s application for a partner visa onshore has been refused and that person is barred from applying for an onshore visa.

34. The Tribunal has considered the issues raised by the second-named applicant’s representative on her behalf and specifically whether there is an onshore partner visa pathway for her. However, it is not able to say with any certainty whether such a pathway is or is not open to her and would not wish to advise her in this, as this is not its role and it notes that she has been represented. It also notes as above that the guidelines on ministerial intervention deem as inappropriate to consider a person’s request where that person has been refused an onshore partner visa application.

35. Therefore, while the Tribunal considers that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit where two members of that family are Australian citizens – being the second-named applicant’s husband and child – and while it may be the case that the application of the relevant legislation, and specifically the s.48 bar that applies to a secondary applicant of a primary visa applicant in an onshore partner visa, leads to an unfair and unreasonable result in this case, it will not be referring the matter to the minister for his intervention. The Tribunal notes, however, that it is open to the second-named applicant to make her own request to the minister.

    DECISION

1. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

   David Crawshay
   Member