1501028 (Migration)

[2016] AATA 3314

1501028 (Migration) [2016] AATA 3314 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss NOK YIN CHAN

CASE NUMBER:  1501028

DIBP REFERENCE(S):  CLF2014/113329

MEMBER:Alan Duri

DATE:22 February 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 22 February 2016 at 3:55pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Miss Chan was born on 24 July 1995 in Hong Kong.  Her mother is Ms Chun Hung Luk, who was born in 1967 in China.  Ms Luk arrived in Australia in 2005 and was granted a Subclass 100 partner visa on 15 June 2012.

2. Miss Chan arrived in Australia on 17 July 2014.

3. On 18 August 2014 Miss Chan applied for a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

4. On 14 January 2015 the delegate refused to grant the visa on the basis that cl.802.212 of Schedule 2 to the Migration Regulations was not met. The delegate was not satisfied that Miss Chan was dependent on her mother Ms Luk in the period before Miss Chan came to Australia.

   Hearing

5. Miss Chan appeared before the tribunal on 22 December 2015 to give evidence and present arguments. The tribunal also received oral evidence from Ms Luk.  The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. Miss Chan was represented by her registered migration agent Ms Vivien Wei Wei Wang.

7. Before the hearing the tribunal received a variety of information that where relevant will be referred to below.

   Miss Chan’s evidence

8. Miss Chan told tribunal that since her arrival in Australia in July 2014 she has lived with her mother and her stepfather Mr Pagonis.  Miss Chan stated that she has never worked in any capacity in Australia and is wholly reliant upon her mother and stepfather for all her financial support.  Miss Chan stated that she receives no income or financial support from any other source.  Miss Chan also indicated that she has never been married, engaged or been in a de facto relationship.  Miss Chan indicated that she is in good health, but was “emotionally dull” when living in Hong Kong.

9. The tribunal asked Miss Chan about her financial support in the period before her arrival in Australia.  She told the tribunal that from 2012 until 2014 she lived with her father at his residence in Hong Kong.  Miss Chan indicated that the father was employed as a teacher.  However, he also speculates on the stock market and he has financial problems.  Miss Chan told the tribunal that her father never provided her with any financial support.  She explained that her mother owned a bar in China, which was rented out.  Miss Chan understood that the rent from this property (about 55,000 yuan per annum) was given to her father for her financial support.  She stated that her father charged to 36,000 year per annum for rent and the rest of the money was used for her food and other expenses.  Miss Chan told the tribunal that her food and clothing expenses while living in Hong Kong were roughly HK$1,000 per month.

   Ms Luk’s evidence

10. Ms Luk told the tribunal that her current husband is employed as a painter and she is employed as a cleaner.  She gave similar evidence to Miss Chan concerning the current financial arrangements.

11. The tribunal asked Ms Luk about the circumstances before Miss Chan’s arrival in Australia.

12. Ms Luk told the tribunal that she is originally from Yinchuan in Ningxia province.  In 1994 she married her now ex-husband, who was born in Hong Kong.  Ms Luk subsequently moved to Hong Kong and was granted Hong Kong residency.  Between 1999 and 2004 Ms Luk lived and worked in Beijing, while her husband and daughter remained in Hong Kong.  At the time Ms Luk’s mother, and sometimes father also lived in the same household in Hong Kong.  Ms Luk returned to Hong Kong in 2004 for a few months and then came to Australia in 2005. Ms Luk indicated that her ex-husband was irresponsible.  The marriage broke down and they were divorced in 2008 (while Ms Luk was in Australia).  Following their divorce Ms Luk’s parents moved out of her ex-husband’s residence.  However, her daughter remained living with him because that was a condition of the divorce. Ms Luk returned to live in Shenzhen from 2009 until 2012.  During this period, her daughter lived with her.  Following her return to Australia in 2012 her daughter returned to Hong Kong to live with her father. 

13. Ms Luk indicated that her ex-husband’s property in Hong Kong was purchased by him before their marriage.  She indicated that the property is in his name.  Ms Luk indicated that around 2003 she purchased a property in her home town Yinchuan, which is rented out.  Ms Luk stated that her sister acts as her proxy and the property is in fact in her mother’s name.

14. Ms Luk told the tribunal that after their divorce her ex-husband was not looking after their daughter due to his own financial circumstances.   Ms Luk and the ex-husband entered into an arrangement Ms Luk’s sister remitted 55,000 yuan from the rent of the property in Yinchuan to the ex-husband for the specific purpose of providing financial support for their daughter.  This payment occurred around the time Ms Luk was granted permanent residence to return to Australia.  Ms Luk told the tribunal that there were various other remittances made in early 2014 for her daughter’s expenses.

15. The tribunal noted a statutory declaration from Mr Runhua Chen, who stated that he took $9,000 in cash in April 2014 when he went to Hong Kong for a holiday.  His statement indicated that he obtained this money from Ms Luk and gave it to Miss Chan.  The tribunal noted that the department’s records show that Ms Luk left Australia in late April 2014.  The tribunal asked why she would give Mr Chen $9,000 to take to Hong Kong, when she in fact was travelling overseas at roughly the same time.  Ms Luk indicated that her travel overseas was at short notice.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative).  In this case, claims have only been made in respect of Subclass 802 (Child).

17. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

18. Miss Chan is the biological children of the sponsor Ms Luk, an Australian permanent resident. Miss Chan was born on 24 July 1995 and she was over 18 years old at the time of the visa application on 18 August 2014.

19. The criterion in cl.802.212 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.802.221(1) or (2)(a).

20. As Miss Chan was over 18 at the time of the visa application, she needs to satisfy additional criteria including a financial dependency test and educational requirements.

21. The term “dependent child” is defined in r.1.03 and as applicable in this case requireds that Miuss Chan be “dependent” on Ms Luk.  The definition of “dependent” as it applies to this application is set out in r.1.05A(1) of the Regulations:

    1.05A    (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.

22. There is no evidence that r.1.05A(1)(b) is applicable in this case.

23. The visa application provides following information about Miss Chan’s circumstances:

    ·Miss Chan was a secondary school student in Hong Kong from 1 September 2007 until 14 July 2014.

    ·Miss Chan has never been employed in any capacity.  She has never been married or in a de facto relationship and she has never been engaged. 

    ·Ms Luk and her husband Mr Pagonis have been providing Miss Chan $400 per week for her food, clothing, education and shelter since July 1995.  Miss Chan has no other source of financial support.

24. In support of the claims in the visa application Miss Chan provided the department:

    ·A letter dated 10 December 2014 from Mr Shing Wah Chan declaring that he is the father of Miss Chan.  Mr Chan stated that since his divorce from Ms Luk in 2008, he has provided no financial support to his daughter.  Mr Chan indicated that Ms Luk provides all of Miss Chan’s financial support.

25. During the hearing the tribunal was told:

    ·During the period from 2012 to until her arrival in Australia in 2014 Miss Chan lived in Hong Kong with her father, who is employed as a teacher.

26. Miss Chan applied for a child visa within a month of her arrival in Australia.  The financial dependency involves consideration of “a substantial period immediately before” the visa application.   “Substantial period” is not defined in the Act or Regulations.  In the context in which ‘substantial’ is used in r.1.05A various court cases such as Huang v MIMA [2007] FMCA 720 suggest that the phrase should be understood to mean a lengthy period. The departmental guidelines (PAM3) interpret a “substantial period” as usually taken to be at least 12 months.  While this period may vary from case to case, the tribunal thinks that in the context of Miss Chan’s case, the 12 month period prior to the visa application is a reasonable period.

27. It follows then that any consideration of Miss Chan’s financial dependence involves consideration of the period Miss Chan was living in Hong Kong with her father.

28. The tribunal is asked to accept that Mr Chan who employed as a teacher, made no financial contribution to his daughter’s meeds for food, clothing and shelter, notwithstanding the fact that his daughter has been living with him for a number of years.  The tribunal does not accept this proposition.  The tribunal finds it extremely implausible that Miss Chan’s father who is employed as a teacher would charge his school aged daughter (who has no personal income) “rent” to live with him.  The tribunal finds it implausible that he would not have provided any food to Miss Chan out of his own resources.   

29. While the tribunal is prepared to accept that Ms Luk has remitted money for Miss Chan’s benefit, the tribunal does not accept that Miss Chan’s father made no contribution in respect of his daughter’s food, clothing and shelter.  This is notwithstanding his statement of 10 December 2014. 

30. Given the tribunal does not accept a core element of Miss Chan’s evidence (that her father has provided her with no support when she was living with him in Hong Kong) the tribunal is unable to be satisfied Miss Chan was either wholly or substantially reliant on her mother for financial support to meet her basic needs at the time when Miss Chan was living in Hong Kong.  This means that the tribunal does not accept that Miss Chan was dependent on her mother Ms Luk (as defined in r.1.05A) at the time of the visa application.

31. It follows that Miss Chan does not satisfy cl.802.212.

32. Given the tribunal’s finding concerning the dependency test, the tribunal did not need to go on to consider the educational requirements in cl.802.214. 

33. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.  There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837)

    DECISION

34. The tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Alan Duri
    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.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    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.

    …