1419028 (Migration)

[2016] AATA 3198

1419028 (Migration) [2016] AATA 3198 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Desheng Wang

VISA APPLICANT:  Mr Keyu Wang

CASE NUMBER:  1419028

DIBP REFERENCE(S):  2013092728

MEMBER:Glynis Bartley

DATE:9 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 9 February 2016 at 4:11pm

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 to refuse to grant the visa applicant, Mr Keyu Wang, 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 15 July 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 cl.101.211 and cl.101.221.

4. The delegate refused to grant the visa on 20 September 2014 on the basis that cl.101.211 and cl.101.221 were not met because the delegate was not satisfied the visa applicant was wholly or substantially dependent on the review applicant for his basic needs of food, clothing and shelter.

5. On 20 November 2014 the review applicant, Mr Desheng Wang, applied to this Tribunal for review of the delegate’s decision.

6. The review applicant appeared before the Tribunal on 27 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin language.

7. The review applicant was represented in relation to the review by his registered migration agent who appeared at the hearing.

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

   BACKGROUND

9. The visa applicant was born in China in 1990 and is a citizen of China. He is currently 25 years old. At the time of application he was residing in Beijing with his aunt and grandmother. On the application the visa applicant stated that he had been a full-time student since he completed high school and was currently studying at Beijing University of Arts and Science. The visa applicant wrote on the application that his father was providing him with $250 per week to meet his living expenses.

10. The review applicant was born in China in 1960 and is currently 55 years old. The review applicant is the visa applicant’s father. He first travelled to Australia on 7 November 2007 on a Tourist visa, which ceased on 24 November 2007. He absconded from the tour group and remained unlawfully in Australia until 23 May 2009 when he was located and detained by Departmental officers. The review applicant was then granted seven Bridging visas, including a Bridging Visa E on the basis that he was making arrangements to depart Australia. The review applicant married an Australian citizen on 11 December 2009. On 7 May 2012 he was granted a Temporary Partner visa (Subclass 820) and on 6 September 2012 he was granted a Permanent Partner visa (Subclass 801). At the time of application the review applicant declared that he was receiving Centrelink income support payments and working as a painter.

11. The visa applicant and his aunt were interviewed by a delegate on 24 July 2013. The visa applicant stated that he had been living with his aunt and grandmother in Beijing since 2007 and his mother had not provided any financial support to him since 2007. He said that he does not pay rent and that his father (the review applicant) had not sent any money to him from Australia. His aunt controls the money and pays for his food, clothing and school tuition. The visa applicant’s aunt told the delegate that she provides all financial support to the visa applicant. She said that the review applicant had promised he would compensate her by giving up his value of their mother’s property.

12. In the Decision Record, a copy of which the review applicant provided to the Tribunal, the delegate stated that he was not satisfied that the review applicant had been paying $250 per week to the visa applicant as claimed in the application form. He was also not satisfied that the visa applicant was wholly or substantially reliant on the financial support of the review applicant for the basis costs of food, shelter and clothing, and therefore was not a dependent child at the time of application or at the time of decision.

13. Prior to the hearing the review applicant’s migration agent provided additional documents to the Tribunal including but not limited to the following: a statutory declaration by the review applicant, a certified translated Power of Attorney, dated 8 October 2007, translated copies of receipts for payments made by the review applicant’s sister to the visa applicant between 2007 and 2015, a statement by the visa applicant, a death certificate for the review applicant’s mother, an agreement between the review applicant, his sister and nephew, a declaration by the review applicant’s sister and nephew, a declaration by the visa applicant, a civil mediation document, a letter of enrolment from Beijing University of Arts and Science and copies of emails between the migration agent and the Department.

    TRIBUNAL HEARING

    Review applicant’s evidence

14. The review applicant confirmed that he divorced his first wife in 2005 and the visa applicant is his only son. The review applicant was given sole custody of his son after the divorce. The review applicant first came to Australia in November 2007 on a Tourist visa. He was granted Bridging visas and then a Partner visa. The review applicant is a permanent resident, but has not yet been granted citizenship.

15. Before he travelled to Australia in November 2007, the review applicant and his son lived together. In October 2007 before he left China the review applicant asked his older sister to take care of the visa applicant. At that time his older sister was living with their mother in a home that his sister owns. His older sister is divorced, so it was just the three of them living there. The review applicant’s sister has a son, but he has not lived with her for many years.

16. The agreement with his sister has just a family arrangement and the review applicant said that he just wrote something to his sister. It was written in October 2007 and in the agreement he asked his older sister to take care of his son on the basis that after their mother’s property was settled, his older sister would receive the amount that she had spent on his son from the review applicant’s share of the inheritance. The cost of taking care of the review applicant’s son would be paid from his share. The review applicant told the Tribunal that the document was not drafted because he was travelling overseas. He was working in sales in China at the time and asked his sister to take care of his son. The review applicant said that he was not thinking of going overseas at that time; he had not applied for the Tourist visa when the agreement with his sister was written. The agreement had nothing to do with the visa application; he asked his older sister to take care of his child because he was unable to do so. The review applicant could not remember when he had applied for the Tourist visa.

17. The Tribunal asked the review applicant why the agreement was written in past tense. He denied that it was in past tense and said that the agreement between them was that his sister could deduct what she had spent on the visa applicant since October 2007 from the review applicant’s share of the settlement. He said that there was no doubt that he would inherit the money. There are only two children in the family and their mother had told them they would inherit property. The review applicant confirmed that his mother passed away in November 2014.

18. The Tribunal asked the review applicant why the agreement had not been signed by his sister. He told the Tribunal that the document was between family members and was not a contract. It authorised his older sister to take care of his son. The Tribunal asked the review applicant why the agreement had been put in writing if it was an informal family agreement. He said that he needed to make a promise to his sister that he would take care of the expenses. He signed the document and gave it to his sister and the letter authorises his sister to care for the son. He asked his sister to follow the instructions and to pay any expenses out of his share of his mother’s inheritance. He is the only one that signed the document because he is the borrower.

19. The review applicant said that the purpose of travelling to Australia was to have fun and he was not thinking about migrating. He did not think about remaining in Australia, but after he met his wife he found she was in bad health and he needed to remain in Australia. The review applicant told the Tribunal that he married his second wife five or six years ago, but he could not remember the date.

20. The Tribunal asked the review applicant about the reference to him providing $250 per week to his son. He said that he did not need to remit the money because all expenses were being paid by his sister. It would not make sense for his sister to send the money to Australia and for him to then send it back to China. The review applicant said that he has sent money to his son on two or three occasions to tell him that he was thinking about him. The review applicant said that his son had recently completed high school when the review applicant left China.

21. The visa applicant is living with the review applicant’s sister in Beijing, although sometimes he stays at the university. He has recently enrolled in a major in Information Technology. The visa applicant has never done any work since he completed high school and has been studying full-time.

22. The receipts were written by the visa applicant to show the money that the review applicant’s sister has provided to him. Sometimes he completes them every few months and at other times every six months. In the end all the money that has been spent on the visa applicant will be deducted from the review applicant’ share of his mother’s property.

23. The review applicant told the Tribunal that he thinks that he was receiving $200 per week from Centrelink at the time of application as he had a car accident. Prior to that he was employed as a painter.

24. The agreement between the review applicant, his sister and his nephew that was provided to the Tribunal was made after his mother died and provides a summary of what expenses his sister has incurred. His sister has not paid any of the remainder of his inheritance to him but the agreement says it should be all settled by the end of 2016.

25. The applicant told the Tribunal that he has travelled to China three times since his permanent residence was granted and has seen his son on each occasion.

26. The visa applicant will complete his degree in four years’ time. He is waiting on an offer from the Beijing University of Arts and Science. The review applicant told the Tribunal that his son graduated from his second degree in September 2015 and has now enrolled in a Bachelor of Information Technology.

27. The review applicant said that no one in China would create a formal contract with their sister. The document was not created for his son’s migration; if it was for migration he would have asked his sister to remit the money to him in Australia so he could send it back again. That he did not do so proves that his intent back then was genuine. The review applicant said that he has spent the majority of his inheritance on the maintenance of his son. The review applicant confirmed that his sister has provided accommodation, meals and clothes to his son.

    Evidence of the visa applicant

28. The visa applicant told the Tribunal that he has been studying at university since he completed high school. He completed his second degree and graduated in July 2015. Since July 2015 the review applicant has been preparing for his next degree in UI (User Interface) design. He has applied to the Beijing University of Arts and Science and is waiting for the offer and for the semester to start.

29. The visa applicant told the Tribunal that he has not done any paid work since he left school. He is not in a relationship and does not have any health problems.

30. The visa applicant said that his father has been providing financial support since 2007; his father arranged for his aunt to support him from the RMB 1.2 m that his father received from the settlement. The visa applicant stated that his father had received that money in 2007.

31. The visa applicant does not pay rent to his aunt. His aunt gives him RMB 4,000 every month and also pays for any additional things he needs. The visa applicant said his father has sent him money on special occasions. His father also brought RMB 10,000 when he came to China earlier this year. Whenever his father visits China he brings some money back with him. The visa applicant told the Tribunal that his mother has not provided him with any financial support since 2007.

    Review applicant’s response

32. The review applicant said that he had forgotten that he had given his son money earlier this year. He also gave his son small amounts of money when he was in China previously to help him maintain the relationship. The visa applicant has no idea about the exact amount of the settlement; it is between the review applicant and his sister. The review applicant’s sister promised that the visa applicant’s expenses would be paid, so the visa applicant has taken for granted that the review applicant has already received the money.

    Submissions by the review applicant’s migration agent

33. The review applicant’s migration agent confirmed that the review applicant was granted sole custody of his son. The original translation of the agreement between the review applicant and his sister was incorrect, so they obtained a new translation and had it certified. The agreement is essentially a loan from the review applicant’s sister to himself. The review applicant believes that without a loan his sister would not have looked after the visa applicant. If the review applicant’s sister had not approved the loan, the review applicant would have brought his son to Australia when he applied for the Partner visa. Although it was not certain, the inheritance could be considered to be almost certain. There is a lack of formal evidence because of the informal nature of the agreement between the review applicant and his sister.

    Information received after the hearing

34. On 27 November 2015 the review applicant’s migration agent provided copies of the visa applicant’s Confirmation of Enrolment, tuition fees and his current university timetable.

    CONSIDERATION OF CLAIMS AND EVIDENCE

35. The issue in this case is whether the visa applicant was wholly or substantially reliant on the review applicant for his basic needs of food, clothing and shelter at the time of application and continues to be wholly or substantially reliant on the review applicant at the time of this decision.

36. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing by the review applicant and visa applicant. The Tribunal has also taken into account the information received after the hearing.

37. After the hearing the Tribunal wrote to the review applicant in accordance with s.359A of the Act, inviting him to comment on or respond to information, as follows:

    Information provided to the Department at the time of your Tourist visa application in October 2007 and your Partner visa application in 2010

    You gave the following oral evidence at the hearing on 27 October 2015:

    ·The Power of Attorney dated 8 October 2007 regarding the provision of financial support of your son (Mr Keyu Wang) by your sister (Ms Guirong Wang) was unrelated to your plans to travel to Australia in November 2007;

    ·The document was not drafted because you were travelling overseas;

    ·You were working in sales in China at the time and asked your sister to take care of your son;

    ·You were not thinking of going overseas at that time;

    ·You had not applied for the Tourist visa when the agreement with your sister was written;

    ·The agreement had nothing to do with the visa application;

    ·You asked your older sister to take care of your son because you were unable to;

    ·The purpose of travelling to Australia was to have fun and you were not thinking about migrating;

    ·You did not think about remaining in Australia, but after you met your wife you found she was in bad health and you needed to remain in Australia.

    Departmental records indicate that you applied for the Tourist visa on 25 October 2007.

    Information contained in the Department’s file regarding your Tourist visa application includes a Guarantee from your then employer, dated 15 October 2007, which stated that you had been working as a vice-manager for one year and your monthly salary was RMB 12,000. The Guarantee stated the following: “We hereby certify that he will return to China on time after he finishes his trip to Australia on NOV 2007. We guarantee that he will follow your countries’ law(s) and come back to China on time and continue his work”. That letter was written one week after the date of the Power of Attorney (8 October 2007). The date of the Guarantee indicates that you had already decided to travel to Australia prior to signing the Power of Attorney on 8 October 2007.

    The Tourist visa file also shows the itinerary for your tour to Australia. The tour group was scheduled to arrive in Melbourne on 7 November 2007 and depart from Brisbane (for New Zealand) on 13 November 2007.

    The Department’s file regarding your Partner visa includes a copy of your application form, lodged on 2 August 2010. On the application you wrote that you met your current wife on 20 December 2007, which was around five weeks after your tour group departed from Australia.

    The above information is relevant because there has been inconsistent evidence about your travel to Australia in November 2007, the reason that you did not return to China with your tour group and whether or not you had planned to travel to Australia when you signed the Power of Attorney. This may lead the Tribunal to conclude that your oral evidence about those matters was not truthful and not accept that evidence. The Tribunal may conclude that you are not a credible witness and doubt your evidence regarding the provision of financial support to your son. This may lead the Tribunal to conclude that your son is not your dependent child. 

    This in turn would be the reason, or part of the reason, for affirming the decision that is under review.

    Failure to include your son as a dependent on your Partner visa application

    At the hearing you gave the following oral evidence:

    ·You entered into an arrangement with your sister to support your son from October 2007 on the basis that you would ultimately compensate her for the costs incurred from your share of the inheritance you expected to receive from your mother’s estate;

    ·The agreement should be seen as a loan from your sister;

    ·You have been financially supporting your son by using your expected inheritance to pay for his living expenses and tuition fees since October 2007.

    As noted above, the Department’s file regarding your Partner visa includes a copy of your application form, lodged on 2 August 2010. On the application you declared that you have a son and included his name and date of birth. However, you did not declare that he was dependent upon you (despite being specifically asked if you had any dependents) or complete the necessary form for dependent children (Form 47A – Details of child or other dependent family member aged 18 years or over).

    The above information is relevant because there has been inconsistent evidence about whether or not your son was dependent upon you when you lodged the Partner visa application in August 2010. This may lead the Tribunal to conclude that your oral evidence regarding the support that you have been providing to your son since 2007 was not truthful and not accept that evidence. This may lead the Tribunal to conclude that your son is not your dependent child. 

    This in turn would be the reason, or part of the reason, for affirming the decision that is under review.

    Why is the above information important?

    The above information may be relevant to affirming the decision under review as it may indicate that your son may not meet the definition of ‘dependent child’ in regulation 1.03 of the Migration Regulations 1994.

    If the Tribunal finds that your son was not your dependent child at the time of application and is not your dependent child at the time of decision, it may find that he does not meet cl.101.211 or cl.101.221 of Schedule 2 to the Migration Regulations 1994.

    If the Tribunal finds that your son does not meet these clauses it must affirm the decision under review to refuse to grant a Class AH visa.

1. On 19 January 2016 the review applicant provided a statement to the Tribunal, which said in summary:

   ·The Power of Attorney was completely unrelated to his travelling plan as he also travelled a lot inside China at that time so he had to ask his sister to look after his son on his behalf.

   ·He signed the Power of Attorney with his sister because he was unable to provide day-to-day care to his son due to his frequent travel within China. The short period between the date of the agreement and the date of his application to travel to Australia cannot be taken as an indication that he had already decided to travel to Australia prior to signing the Power of Attorney.

   ·The Power of Attorney was drafted before he decided to travel to Australia. His circumstances in China at the time were the only factor taken into account when he had the agreement with his sister.

   ·It is not unusual for people in Beijing to make quick decisions about taking holidays and travelling overseas. It does not need to be planned a long time ahead.

   ·After he arrived in Australia, he did not follow the scheduled itinerary. He left the tour group and stayed in Sydney during which time he met his wife on 20 December 2007. A detailed explanation about the reason why he overstayed his Visitor visa was provided to the Department in his Partner visa application in 2010.

   ·He apologises wholeheartedly for overstaying his visa. All of the information he provided to the Department was truthful including evidence regarding the provision of financial support to his son.

   ·His son was financially dependent on him at all material times.

   ·He is unable to comment on why some parts of the 47A form were not completed. His agent completed the form and he advised his agent that he had a dependent son.

2. The Tribunal does not consider that the review applicant’s response to the information put to him in accordance with s.359A of the Act adequately addressed the matters raised. It has placed some weight on the information provided by the review applicant in his previous visa applications as well as the discrepancies outlined above. 

3. The review applicant’s oral evidence at the hearing was vague and tentative and at times it was inconsistent with the information provided to the Department and the Tribunal. For example, on the application the visa applicant wrote that the review applicant was supporting him by giving him $250 per week for living expenses. However, it was subsequently claimed that the visa applicant’s living expenses were being met by his paternal aunt on the basis that she would be compensated from the review applicant’s share of their mother’s inheritance. In his statutory declaration to the Tribunal, dated 21 October 2015, the review applicant stated that his mother passed away in 2014 and left him and his sister an inheritance of her house, with a RMB 1,200,000 (approximately $254,000) share of the house being left to the review applicant. Other documents provided to the Tribunal state that the house was transferred to the review applicant’s nephew on 6 June 2014, prior to the death of the review applicant’s mother on 25 November 2014. The Tribunal did not consider the review applicant to be a credible witness and has therefore placed little weight on his oral evidence.

4. Despite his assertions to the contrary, the Tribunal does not accept the review applicant’s evidence that the document he purportedly signed in China on 8 October 2007 was drafted independently of his plans to travel to Australia on 7 November 2007 given the close proximity of the dates. It also does not accept that the review applicant genuinely intended to return to China when he travelled to Australia on a Tourist visa on 7 November 2007. The tour itinerary provided to the Department at the time of the Tourist visa application shows that the review applicant was due to arrive in Melbourne on 7 November 2007 and depart from Brisbane (to New Zealand) on 13 November 2007. He absconded from the tour group and remained unlawfully in Australia until May 2009. The review applicant told the Tribunal that he did not think about remaining in Australia, but after he met his wife he found she was in bad health and he needed to remain. However, in the Partner visa application that the review applicant lodged in August 2010, the review applicant declared that he met his current wife in Sydney on 20 December 2007, which was around six weeks after his tour group left Australia.

5. The Tribunal notes that a Guarantee was provided by the review applicant’s employer to the Department as part of his Tourist visa application, dated 15 October 2007, which stated that the review applicant had been working as a vice-manager for one year and his monthly salary was RMB 12,000. The letter stated the following: “We hereby certify that he will return to China on time after he finishes his trip to Australia on NOV 2007. We guarantee that he will follow your countries’ law(s) and come back to China on time and continue his work”. That letter was written just one week after the review applicant purportedly signed the agreement with his sister to care for the visa applicant. The Tribunal also notes that on his Partner visa application, the review applicant stated that he had been a self-employed business owner since 1977.

6. The review applicant told the Department that he and his sister had entered the agreement regarding the visa applicant on the basis that they would jointly inherit their mother’s home. However, as noted above, documents provided to the Tribunal state that the home was transferred to the name of the review applicant’s nephew in June 2014, prior to the death of the review applicant’s mother. Despite copies of various emails being provided to the Tribunal between the review applicant’s migration agent and the Department, there is no indication that the review applicant advised the Department that the property had been transferred to the name of his nephew in June 2014.

7. The Tribunal places little weight on the Power of Attorney that the review applicant says he signed on 8 October 2007, or on the receipts provided to the Tribunal. The Power of Attorney was not signed by the review applicant’s sister or witnessed. The monthly figures cited in the Power of Attorney (approximately $2,700 per month or $32,000 per annum) are not reflected in the receipts provided to the Tribunal (approximately $6,500 per six months or $13,000 per annum). While the discrepancy is explainable if the visa applicant’s tuition fees were met by the review applicant’s sister directly, there is limited independent evidence to suggest this was the case. The copies of tuition fee receipts provided after the hearing show that the visa applicant has paid the majority of the fees associated with his current studies (RMB 19,800), while his aunt has paid just RMB 1,600.

8. The receipts that set out the money that the visa applicant says his aunt has given him were handwritten on identical paper, despite being dated between 2007 and 2015. The Tribunal does not accept that they were written contemporaneously. The receipts show that the visa applicant received the same amount of income from his aunt from October 2007 until April 2015, with no allowance made for inflation or his changing needs over that period. The agreement provided to the Tribunal, dated 20 April 2015, states that the amount that the review applicant’s sister paid to the visa applicant between October 2007 and April 2015 was RMB 464,100 (approximately $98,000). However, the figure provided in the Power of Attorney for the same period was around RMB 1,170,000 (approximately $249,000). Given the inconsistencies in the evidence, the review applicant’s failure to declare his son as a dependent on his Partner visa application and its concerns about the review applicant’s credibility, the Tribunal does not consider the documents provided to support the application to be reliable. It therefore places limited weight on that evidence.

9. 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. 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).

10. 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].

11. The Tribunal finds that the visa applicant was over the age of 18 years at the time of application and is over the age of 25 years at the time of this decision. The Tribunal finds that the visa applicant was not incapacitated at the time of application or at the time of this decision. The Tribunal is satisfied that the visa applicant is not engaged to be married and has never been married or in a de facto relationship.

12. Therefore the only issue for the Tribunal to consider is whether the visa applicant meets the definition of ‘dependent’, that is, whether he was wholly or substantially reliant on the review applicant for his basic needs of food, clothing and shelter at the time of application and continues to be wholly or substantially reliant on him for his basic needs of food, clothing and shelter.

13. There was consistent evidence provided that the visa applicant’s aunt (the review applicant’s sister) has been providing food, accommodation and clothing to the visa applicant since the review applicant migrated to Australia in November 2007. The review applicant stated that his sister provided financial support to the visa applicant on the basis that she would be compensated once he was entitled to receive his share of their mother’s inheritance. As noted above, a translated copy of Power of Attorney, dated 8 October 2007, was provided to the Department. The document was translated a second time and a certified copy of that translation was provided to the Tribunal. Other documents submitted in support of the application include receipts issued by the visa applicant to his aunt and an agreement between the review applicant, his sister and the review applicant’s nephew regarding the amount that is to be deducted from the review applicant’s share of his mother’s inheritance (RMB 464,100 as at 19 April 2015, or approximately $98,000). The review applicant’s migration agent submitted that the agreement between the review applicant and his sister should be seen as a loan. The review applicant submitted that the arrangement between him and his sister regarding the care and provision of financial support to the visa applicant was informal. Documents provided to the Tribunal show that the property was transferred to the review applicant’s nephew in June 2014, approximately five months prior to the death of the review applicant’s mother. Although there is an agreement which says that the review applicant is to receive the balance of the inheritance less any costs incurred by his sister for his son’s care, it provides that the payment is to be made to him in December 2016.

14. The Tribunal’s concerns about the evidence presented in this case are set out above. It notes that the October 2007 Power of Attorney was made seven years before the death of the review applicant’s mother and was contingent upon the review applicant being the beneficiary of the inheritance. As discussed elsewhere, the home owned by the review applicant’s mother was transferred to the review applicant’s nephew prior to her death. There is no documentary evidence to indicate that the review applicant has received any portion of the remainder of his claimed inheritance from his mother’s estate, despite his mother’s death more than 12 months ago. Although the various agreements signed provide for the remainder of the inheritance to be paid by December 2016, no evidence has been submitted to explain why the payment is delayed until then or to support that the review applicant’s nephew has, or will have, the capacity to make the payment. 

15. The Tribunal notes that the review applicant declared his son’s details on his 2010 Partner visa application, but he did not include him as a dependent or submit a Form 47A, which is required to be completed for all dependent children aged 18 years or over. The review applicant’s Partner visa application was lodged more than three years after he purportedly signed the Power of Attorney regarding the provision of financial support to the visa applicant. The Tribunal does not accept the review applicant’s explanation that he advised his migration agent that he had a dependent son, but that information was not included. The review applicant signed the application and was required to be aware of the information contained within it.

16. The Tribunal is not satisfied on the basis of the evidence before it that at the time of application or at the time of this decision the visa applicant was, or continues to be, wholly or substantially reliant on the review applicant for financial support to meet his basic needs for food, clothing and shelter. The Tribunal accepts the review applicant’s evidence that he has provided some financial assistance to his son, but that support has been modest and intermittent. The Tribunal finds that the visa applicant has been financially supported by his paternal aunt since 2007. Consequently, the Tribunal is not satisfied, based on the evidence before it, that the visa applicant’s reliance on the review applicant was greater than any reliance by him on any other person or source of support, for financial support, to meet his basic needs for food, clothing and shelter.

17. The Tribunal therefore finds that the visa applicant is not a dependent child of the review applicant at the time of application or at the time of decision.

18. Accordingly, cl.101.211(1)(a) is not met at the time of application, and does not continue to be met at the time of decision.

19. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a) are not met.

20. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Glynis Bartley
    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.

    …