1415967 (Migration)

[2015] AATA 3482

1415967 (Migration) [2015] AATA 3482 (15 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mailian Wang

VISA APPLICANT:  Ms Xuelai Zheng

CASE NUMBER:  1415967

DIBP REFERENCE(S):  2013/091904 2013091904

MEMBER:Michael Cooke

DATE:15 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations

·cl.101.221(2) of Schedule 2 to the Regulations

Statement made on 15 October 2015 at 11:24am

.

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 20 September 2014 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 28 March 2013. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include clauses 101.211 and 101.221.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate’s finding was that the visa applicant had not established her dependence on the review applicant.

5. The review applicant appeared before the Tribunal on 22 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is dependence of the applicant on the review applicant - her mother.

8. The review applicant outlined to the Tribunal in the hearing the fact that her daughter had been receiving financial assistance and shelter from both her and her ex-husband and the applicant's grandparents (during university vacation breaks). Her financial maintenance was done by a convoluted system whereby a property that she owned in China was rented out and the rental income was then given to her daughter for her basic needs and other items. If her daughter was short of money she simply was sent additional funds from Australia. Part of her university fees also covered her residential college/shelter needs. Her vocational break 'basic needs' were covered by her vacationing with her grandparents and her mother’s remittances. The rent was paid by the tenants twice a year. She had bought the flat when she was working at the university. They constructed the building and offered flats for sale to its employees. She informed the delegate that she did not have the title deeds for the flat and had lost the purchase receipt subsequently when she moved to Australia. The rent was due in March and September. The applicant would go round to pick the rent up. When the Tribunal asked her who paid for the applicant's food and clothing she informed that she did not have a distinct idea (as she did not live in China) and that her family in China would know. She ate at the campus canteen during tuition time. Sometimes her father gave her money. She had left a significant amount of money with a trustworthy uncle when she left China in 2007 and in 2010.This money had been fully expended in tuition fees over the years. She then began to remit money to the visa applicant. When she sent money she would normally send around AUD1000. Her daughter's upkeep took more than RMB 1000 per month.

9. The Tribunal read out the definition of dependence and the fact that the visa applicant could be `wholly' or 'substantially' reliant on the review applicant. The Tribunal observed that it was clear from her oral evidence that she was not "wholly' reliant on her mother. The Tribunal attempted to verify if she was "substantially" reliant on her mother. This proved difficult at the hearing because the review applicant appeared to be worn down emotionally by the period of time it had taken to finalise her case. She had indicated this in a submission to the tribunal. She had also a new child since coming to Australia and the care of the young child and work had left her exhausted. Along with this is the fact she had travelled all the way from Wagga Wagga - her home town for the hearing. Under the circumstances the Tribunal allowed her further time to elaborate the dependency trail to her daughter in an effort to prove that she was "substantially" reliant on her mother — the review applicant.

10. The review applicant has responded to the offer of further time to establish her daughter's "substantial" reliance on her and thus her dependency on the review applicant. She has secured remittance information from Western Union indicating eight payments to the visa applicant between 24 December 2012 and 1 November 2015. The total amount is AUD10500 (T1,ff.45,48). The visa applicant has also compiled a 6 month income and expenses statement from 1 January 2015 to 30 June 2015 for the edification of the Tribunal. The visa applicant has given a breakdown of typical ‘basic needs’ expenses and how they are paid. The information corroborates the review applicant’s oral evidence that her daughter needed basically RMB1000 per month for her basic needs.

    Dependent child criteria

11. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

    Dependent child

12. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

13. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

14. The Tribunal has considered the various aspects of the visa applicant’s dependency including her mother’s financial support of her basic needs through different media. The Tribunal has examined the additional aspects of her ‘basic needs’ that are facilitated by her father and grandparents during school break during the hearing. The Tribunal is satisfied that the visa applicant was substantially reliant on the review applicant mother for her ‘basic needs’ and that her reliance on the review applicant was greater than her reliance on any other person or source of support for financial support to meet her ‘basic needs’. She was so reliant on the review applicant for a substantial period of time before time of application. The Tribunal finds the visa applicant meets the definition of ‘dependent’ and ‘dependent child’ in Reg.1.05A and 1.03.

15. Accordingly, cl.101.211(1)(a) is met at the time of application and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

16. At the time of application, the visa applicant must not have turned 25. The tribunal finds that at the time of application the visa applicant had not turned 25.

17. Accordingly, cl.101.211(1)(b) is met at the time of application and is not required to be met at the time of decision.

    Child-parent relationship

18. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

19. The visa applicant is the child of an Australian citizen, accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

    Conclusion about dependent child criteria

20. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a) are met.

21. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211 of Schedule 2 to the Regulations

    ·cl.101.221(2) of Schedule 2 to the Regulations.

    Michael Cooke
    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    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.

    …