Wallisch (Migration)

[2017] AATA 149

Wallisch (Migration) [2017] AATA 149 (30 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Joseph Wallisch

VISA APPLICANT:  Ms Janina Hanswillemenke

CASE NUMBER:  1605992

DIBP REFERENCE(S):  OSF/2015 038748

MEMBER:Michael Cooke

DATE:30 January 2017

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 30 January 2017 at 2:07pm

CATCHWORDS

Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – Continuing to be a dependent child – Child over 18 years – Applicant in a de facto relationship – Financially dependent on visa-holding parent – Continuous studies – Part-time work – Whole or substantial continued dependence

LEGISLATION

Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, Schedule 2, cl 445.221, 445.222, r 1.03, r 1.05A

CASES

Sok v MIMIA [2005] FMCA 190

Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576

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 10 March 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). There are no other subclasses that exist in relation to an Extended Eligibility (Temporary) (Class TK) visa.

2. The visa applicant applied for the visa on 13 August 2015. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.445.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the visa applicant did not satisfy cl.445.222 because the delegate was not satisfied that the visa applicant continued to be a “dependent child” of Ms Karin Glander (her mother) who was a Subclass 820 visa holder and resident of Australia at time of lodgement because the delegate found Ms Willemenke was subsequently in a de facto relationship with Mr Robbert Goeman (a Dutch soldier) at time of decision.

3. The visa applicant (Ms Janina Hanswillemenke) was sponsored by her step-father (Mr Joseph Wallisch) - an Australian citizen.

4. The review applicant sponsor (Mr Joseph Wallisch) appeared before the Tribunal on 9 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Karin Glander (the mother of the visa applicant and Subclass 820 visa holder) and Ms Janina Hanswillemenke (the visa applicant) by telephone from Chile. The Tribunal hearing was conducted with the assistance of an interpreter in the German and English languages.  

5. The review applicant was represented in relation to the review by his registered migration agent - Ms Rossana Gonzalez. The representative attended the Tribunal hearing.

6. The representative has forwarded two submissions subsequent to the hearing addressing the issue of dependence (T1, ff.53-189, 195).

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

   CONSIDERATION

8. The Tribunal has before it the Department’s file relating to the visa applicant. The Tribunal also has had regard to the material on the Tribunal file, including the delegate's decision, provided by the review applicant.

9. At the time the visa application was lodged the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 (Dependent Child) visa. The requirements for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations. The primary requirements include that at the time of application the applicant is a “dependent child” of a visa- holding parent and is sponsored by the nominator or sponsor of the visa holding parent: cl.445.211 (a) and (b). Further at the time of decision the visa applicant must continue to be a “dependent child” of the visa-holding parent: cl.445.222. In this case the visa holding parent in accordance with cl.445.211 is Ms Karin Glander who was granted a Subclass 820 (Partner (Provisional)) visa.

10. Therefore, Ms Willemenke must be a “dependent child” of Ms Glander at the time of application and at time of decision to be eligible for the visa. The central issue in this case is whether Mr Willemenke is the “dependent child” of Ms Glander under migration law.

11. The phrase “dependent child” is defined in r.1.03 (see attached). The definition includes the following requirements:

    ·that the person is the “child” or “step-child” of the other person; and

    ·that the “child” is not engaged to be married or has a spouse or de facto partner; and

    ·if the “child” has turned 18, they must be dependent on that person; or incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

12. The Tribunal took evidence from Mr Wallisch, Ms Glander and Ms Willemenke (by telephone from Chile) in relation to each aspect of the requirements. After considering the evidence as discussed below, the Tribunal was satisfied that Ms Willemenke was not engaged to be married or did not have a de facto partner at the time of application and time of decision and, was not reliant on or in a de facto relationship with Mr Goeman at any stage therefore, did meet the requirements in cl.445.211(a).

13. In assessing whether Ms Willemenke had a de facto partner the Tribunal took into account the provisions in the migration law as to what constitutes a de facto relationship. Section 5CB of the Act provides that a person is a de facto partner and is in a de facto relationship with another person (whether of the same sex or different sex) where those two people are not in a married relationship but have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion whether two persons are in a de facto relationship, the Tribunal must have regard to all the circumstances of the relationship, including in particular the considerations set out in r.1.15A(3) for spousal relationships and r.1.09A(3) for de facto relationships. Those considerations relate to 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.

14. The Tribunal finds that Mr Goeman and Ms Willemenke were found by the delegate not to be in a de facto relationship at time of application. They were found by the delegate to be in a de facto partner relationship at time of decision. Based on written and oral evidence (including information contained in a comprehensive submission from their representative) the Tribunal finds they were not in such a relationship at time of decision. Ms Willemenke is aged 26 years of age.

15. Therefore, the Tribunal finds that the visa applicant was sponsored by the sponsor of the visa holding parent, therefore, the visa applicant satisfies cl.445.211(b) and cl.445.223.

16. In relation to the requirements in cl.445.211(a) and cl.445.222 and r.1.03 the Tribunal received the following evidence regarding Ms Willemenke’s relationship with Mr. Robbert Goeman.

    ·They shared a house as flatmates in a boyfriend /girlfriend relationship that was constantly interrupted by both Mr Goeman’s military posting to faraway places and their frequent arguments about his desire to stay in the military.

    ·At times for convenience sake Mr Goeman stayed in the barracks rather than at the flat the pair rented in Holland where Ms Willemenke (a German) was studying at the University of Tillburg.

    ·Finally in August 2015 the friendship broke down and Mr Goeman moved in with his parents.

    ·The parties reconnected in October 2015 but this was not to last particularly with Mr Goeman’s lengthy postings overseas and the decision of the visa applicant to study and move to Temuco, Chile in January 2016.

    ·The Dutch military have confirmed that the Mr Goeman was not in a de facto relationship with Ms Willemenke under Dutch law in a formal letter to that effect.

17. Therefore, the Tribunal has reconsidered the delegate’s decision findings and in the light of additional information and oral evidence, the Tribunal accepts the representative’s claims and has determined that at the time of application and time of decision Ms Willemenke was not engaged and was not in a de facto partnership with Mr Robbert Goeman.

18. As the Tribunal can be satisfied that Ms Willemenke was not engaged or in a de facto relationship, the Tribunal must be satisfied that Ms Willemenke is a “dependent child” (as defined in r.1.03) both at time of application (cl.445.211(a)) and decision (cl.445.222).

19. The Tribunal must now make findings as to whether Ms Willemenke is ‘dependent’ on her mother from a financial point of view. The test for dependency is that the visa applicant is reliant on her mother for financial support to meet the applicant's ‘basic needs’ for food, clothing and shelter and that the reliance on her mother is greater than her reliance on any other any other person or source of support. Sub-regulation 1.05A(1)(a)(i) requires a person to be dependent for a substantial period immediately before the time of application.

20. The parties in their submission (dated 5 December 2016) have opined that the applicant continues to be ‘substantially reliant’ for financial support on the visa-holding parent and have outlined their supporting arguments below.

    The Applicant’s Submission

    Financial reliance

21. We submit that the support provided to the applicant in accordance with 1.05A and the policy considerations outlined by the PAMs in that the support has always been, and is, of financial nature. The visa-holding parent has always provided financial support in the form of 'fatherless pensions' received into her account and transferred into the applicant's bank account. The visa-holding parent has also been the primary source of financial support for the applicant's basic needs of food, clothing and shelter and other needs such health insurance, car insurance, transportation, phone bills, university text books, sport-centre membership etc. We enclose money transfer documents evidencing this (annexure B).

    Substantial period

22. Sub-regulation 1.05A(1)(a)(i) requires a person to be dependent for a substantial period immediately before the time of application. The PAMs specifies this period as 12 months. The applicant lodged an application for a subclass 445 on 13 August 2015. We submit that the applicant has been dependent on the visa-holding parent for the entirety of applicant's life, in particular, after turning 18 years old and from 13 August 2014 to date for the purposes of the subclass 445 visa application.

    Individual circumstances

23. The applicant has been in continuous studies since completing high school and has not been employed: Applicant has been, and continues to be, substantially reliant on the visa-holding parent for basic needs. We contend that the individual circumstances of applicant's case such as: lack of an alternative source of income and applicant's continuous studies since finishing high school have rendered the applicant unable to provide for her own basic needs and, therefore, substantially reliant on the visa-holding parent's financial support.

24. The PAMs provide that a child financially reliant on the visa-holding parent may be considered a dependent child for the purposes of Regulation 1.05A if the child "has been in continuous full-time study since completing high school". The applicant has been pursuing academic studies continuously since completing high school. We provide an outline of this below.

    ·07/2010 - Completion of high school

    ·08/2010 to 09/2013 - Bachelor of Arts

    ·10/2013 — March 2014 - IELTS studies

    ·04/2014 — 07/2014 - Obligatory waiting time until the start of applicant's Master degree in August 2014 — Applicant was also preparing for the GMAT exam

    ·07/2014 — 08/2014 —Studying Dutch

    ·08/2014 — 08/2015 - Pre-masters

    ·09/2015 to 09/2016 - Masters

25. As indicated above, the applicant commenced postgraduate studies in August 2014. During the period between completion of applicant's bachelor degree and commencement of applicant's master degree, the applicant was preparing for her postgraduate degree. This included applying for the postgraduate course, studying Dutch, taking an IELTS and GMAT test in preparation of the postgraduate course (annexure C).

26. The applicant also completed an internship to gain work experience, acquired an RSA/RGA certificate, moved to Tilburg and made arrangements for her residence. From April 2014, the applicant had secured an offer from Tilburg University and was waiting the mandatory waiting period until the commencement of her postgraduate degree in August 2014. In 1009675 [2012] MRTA 193 at 43, the Tribunal accepted that a reasonable break between tertiary and post-graduate studies is admissible in assessing dependency. In determining 'Reasonable time' factors such as actual time involved; activities undertaken during that time, the purpose for the activities should be considered. It was also held in Sok v MIM1A [2005] FMCA 190 at 21, that these factors include:

    "...a young person undertaking a one year exchange student program in another country, living and working in another country; (particularly if their ultimate studies involved fluency in foreign language spoken in that country)..."

27. We submit that during the period between completion of the bachelor degree and commencement of the master degree, the applicant undertook activities in preparation for her master's degree in Tilburg University and as such, the period of break between applicant's studies is consistent with the legislation and Department of Immigration and Border Protection's (DIBP) policy (annexure C).

    Degree of reliance

28. Regulation 1.05A(1)(a)(ii) requires the applicant's reliance for food, clothing and shelter on the visa-holding parent to be greater than any reliance by the applicant on any other person or source of support. The cost estimation of applicant's basic needs such as need for food, shelter and clothing at the time of decision for the subclass 445 and the current costs are assessed between 450.00 EUR to 600.00 EUR (annexure B). The break-down of these costs is offered in the table enclosed.

29. We submit that the financial support by the visa-holding parent, including the 'Fatherless Pension" the visa-holding parent receives and distributes to the applicant has been the main source of income for the applicant. The financial support provided by the visa-holding parent is greater than any other income or sources of support and therefore, the applicant satisfies Regulation 1.05A(1)(a)(ii).

30. The applicant received a scholarship from the government of Germany in the form of 'Student Grant' (Annexure D) for the below periods.

    ·May 2011— February 2013

    ·March 2013 —July 2013

31. Applicant's dual bachelor degree consisted of alternating periods of studying and working and throughout her studies the applicant studied 3 months and worked 3 months periodically as part of her degree.

32. The PAMs suggest that:

    '..it is policy that an adult child who is a full-time student completing their first major undergraduate qualification may be considered 'wholly or substantially reliant', even though they may be working part time or receiving a scholarship."

33. The Tribunal finds that the applicant was wholly or substantially reliant on the visa-holding parent while undertaking undergraduate studies full-time and receiving a scholarship.

34. The applicant also received scholarship for the below periods

    ·August 2014 —July 2015 —733.00 EUR

    ·August 2015 —July 2016 — 545.00 EUR

35. Part of applicant's scholarship (the Student Grant) covered applicant's tuition fee and the applicant has always relied upon the visa-holding parent's financial support to cover her basic needs of food, clothing and shelter. Furthermore, the financial support provided by the visa-holding parent was greater than the amount of the student grant.

36. It was held in Huynh v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 576 that in determining the relationship of dependency there is no need or necessity to provide the child with financial support and it suffices if the child is in fact reliant on the visa applicant.

37. As demonstrated by the facts of the case and the available probative evidentiary documents, the applicant has relied substantially and continuously on the visa-holding applicant's financial support throughout the applicant's studies, as a matter of fact, both in her undergraduate and postgraduate degrees. The applicant meets the criteria of sub-regulation 1.05A(1)(a)(i)-(ii) and at the time of decision for the subclass 445 was, and is, dependent on the visa-holding parent for the purposes of regulation 1.03.

38. The Tribunal is prepared to accept that based on PAMs and her own evidence in her submission that the visa applicant has been a student since 2010 until September 2016 and ‘dependent’ on her mother in the sense of wholly or substantially reliant on her for her basic needs. The question, therefore, remains as to whether the visa applicant was the visa holder’s ‘dependent child’ at time of decision. This will require a finding that the “chain of dependency” has not been broken. The Tribunal was informed in the hearing that the applicant had terminated her studies in in the University of Temuco Chile and had achieved subsequent employment at the University of Temuco.

39. The Tribunal raised this issue with both the visa applicant and her parents at the hearing. The visa applicant advised that she had completed her post graduate degree at the University and was now working there (Temuco). Her mother informed that she no longer received (for instance) the German “fatherless pension” which was paid to her mother and then on-forwarded to the visa applicant for her ‘basic needs’.

40. The first requirement is that the financial support being provided in fact is to meet the applicant’s basic needs for food, clothing and shelter. The second requirement is that the applicant’s reliance on the other person is greater than his or her reliance on any other person or source of support.

41. In view of the fact she was no longer ‘wholly’ reliant on her mother (the visa holder) the Tribunal asked the visa applicant whether she remained ‘substantially reliant’ on her mother. She indicated that despite her income from the university she still needed financial support from her parents. The Tribunal allowed the parents’ representative to submit additional information. In response the applicant’s representative has forwarded a number of documents to that effect.

42. In Zeng v MIMIA,  a decision involving an Aged Dependent Relative visa, Riethmuller FM concluded that a proper determination of the question of ‘substantial dependence’ will require considerations of at least the following factors:

    ·the nature of the person’s needs (within the meaning of the regulations);

    ·the extent to which those needs are being met by the person from their own resources;

    ·the extent to which the needs are being met by the nominator; and

    ·whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.

    Conclusion about dependent child criteria

43. The term ‘substantially reliant’ involves a concept of predominance and requires the Tribunal to ask whether the applicant was predominantly or ‘primarily, essentially or in the main’ dependent on the other person.  In Fusi v MIAC,  the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case, funds from other family members, when assessing whether she was ‘wholly or substantially reliant’.  Although the Court’s consideration relates to the definition of ‘dependent’ as it stood prior to November 1999, the reasoning would appear to be equally applicable to the current definition in so far as it considers the terms ‘wholly or substantially reliant’.

1. Importantly, in Huynh v MIMIA, the Full Federal Court found that the proper construction of ‘dependent’ under the current definition in r.1.05A does not carry any implication of the notion of necessity or lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.

2. As indicated above, courts have held that the term ‘substantially’ should be read as meaning ’predominantly’ or ‘primarily, essentially or in the main’. There have been a number of approaches in evaluating ‘basic needs’. One approach places emphasis on the fact that the basic needs for which financial support must be provided are described as ‘food, shelter and clothing’ which suggests a cumulative requirement of all three needs.

3. It is evident from the oral evidence that the applicant is a young woman of German background. She is living as a single woman. She has sought to educate herself to allow her to have a career. It is evident that at time of decision she works a part time job that provides the majority of monetary support for her while she stays in Chile.

4. When consideration of ‘basic needs’ is contemplated it can be seen from her residential arrangements (see latest submission) that she relies on her own financial resources for her shelter requirements and food and pays her own rent. The Tribunal finds that she does earn sufficient in her part time job to live by herself in Temuco, Chile. The applicant’s submission has indicated that she relies on her Chilean income for her basic need for food which she provides. She claims that she spends AUD160.88 per week on food. The applicant also informs that the expense of clothing amounts to AUD201.11 per month. She spends AUD311.71 on shelter. She informs that her part time income delivers AUD810.01 monthly (T1, f.195). Thus he total expenses are catered for from her remuneration since November 2016 and she no longer derives her basic needs from her mother – either wholly or substantially.

5. Therefore, her reliance, on her mother for the basic needs which existed at time of application - at time of decision no longer exists. Her mother has sent clothing to her in Chile and maintains her health insurance.

6. The Tribunal is of a view that in dependency cases the approach that best reflects all parts of the regulation is an evaluation based on an approach which requires that financial support be provided in relation to all three basic needs. Furthermore, overall, the person on whom the applicant is reliant (wholly or substantially) can best be described as the predominant source of support, even if only providing a small amount in relation to one of the basic needs. To require the person to be predominantly reliant upon another person in respect of each of the three basic needs would appear to place the bar too high and is not necessary to give effect to all parts of the definition.

7. The fact that the applicant has worked part time while studying previously is considered in policy to be acceptable. In the present case the applicant now works part time (20 hours per week) – but is no longer studying. Her mother’s financial contribution to the applicant was previously substantial and her reliant was whole or substantial.. However, her contribution at present of EUR150/AUD212.19 per month (in the judgement of the Tribunal) does not constitute either whole or substantial dependence for the applicant’s purpose in this review.

8. Since October 2016 the applicant’s situation has changed dramatically from a position of whole or substantial dependence to one where she can provide herself for her basic needs.. She is in the Tribunal’s view (based on her representative’s latest information and oral evidence) no longer either wholly or substantially reliant on her mother for her basic needs and that her reliance on the other person is not greater than her reliance on any other person or source of support. Therefore, she does not meet the requirements of reg.1.03 at time of decision.

   CONCLUSION

9. For the reasons given above the Tribunal is not satisfied that the visa applicant satisfies the requirements of cl.445.222.

   DECISION

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

    Michael Cooke
    Member