1502243 (Migration)

[2015] AATA 3867

1502243 (Migration) [2015] AATA 3867 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Minrong Jiang
Master Steven Jiang

CASE NUMBER:  1502243

DIBP REFERENCE(S):  CLF2014/106495

MEMBER:Catherine Carney-Orsborn

DATE:11 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Child (Residence) (Class BT) visas.

Statement made on 11 December 2015 at 4:53pm

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 13 February 2015 to refuse to grant the applicants Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 1 August 2014. 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).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.214.

4. The delegate refused to grant the visas on the basis that cl.802.214(1)(a) was not met because they were not satisfied that the first named applicant (the applicant) was no longer engaged.

5. The applicants appeared before the Tribunal on 2 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother (the sponsor).  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant is the dependent child of the sponsor.

2. The applicant supplied the documents which are held on the Department file.

3. Among those forms were completed Forms 47CH and 40CH. In that form her mother states she is employed by Yaofu Pty Ltd and works as a cleaner.  Bank Statements, academic records, taxation returns and documents relating to the applicant’s father’s business, Yaofu Pty Ltd were also provided.

4. The Tribunal took evidence from the applicant and sponsor.

5. A summary of the evidence is as follows.

6. The applicant stated her name and date of birth.  She said she first came to Australia in February 2012.  She claims she first arrived in 2012 on a permanent visa.  The Tribunal asked words to the effect of what visa it was.  She said she was her mother’s dependant.  The Tribunal asked if she came as her mother’s dependant why another application as her mother’s dependant was lodged.

7. She then changed her evidence and said she came with her father.  When the Tribunal asked why she changed her evidence, she said she misunderstood the question.    The Tribunal again asked why she has lodged another application.  She said her father’s visa was refused in 2014.  The Tribunal asked why it was refused.  She said it was related to her father and she did not know the details.

8. The Tribunal asked if she had previously had a visa refused.  She replied “never”.

9. The Tribunal said that on the Department’s decision supplied with the application it appeared she had previously lodged an application to sponsor a partner.  She said words to the effect that she always disagreed with this.  She said that in November 2013 it was refused and so she had nothing more to do with him.  She said her mother hoped that she could be with him. She said words to the effect that it was what her parents wanted.

10. The Tribunal put to the applicant, pursuant to s.359AA, that documents on the Department file relating to her application to sponsor a partner indicate that she was committed and that she was in love.  The Tribunal indicated that she did not have to answer any questions, that she could request time before answering and could request an adjournment.  The Tribunal said words to the effect that this information would cause the Tribunal to find that she was not truthful and would disregard her evidence that she had never had any genuine relationship.  She elected to answer at the hearing.  She stated that it was her mother who wanted her to sponsor the person.

11. The Tribunal then asked about the father of her baby.  She said the father is the friend of a friend.  She said his name is Fung Lee.  The Tribunal queried why previously she had not named the father and as set out in the Department’s decision is that there is no father on the birth certificate.  She said this was because she has no contact with him.  She said it was a Saturday night and she went to a party and her partner was looking for her.  She said she was drunk and it just happened.

12. She said she works part-time.  She claims this was in a shop as a cashier.  She lives with her mother and father and works Saturday and Sunday.

13. She said that in China she was living with her grandmother.  She said her parents owned the house she lived in with her grandmother. She said her parents paid for it to be built in 2003.

14. Her father worked in China.  He worked as a driver, however, he was working in construction in Australia.  She said her father financially supported her.  She said that every week he gives her some money.  The Tribunal asked if the father of her child gives her any money.  She replied he did not as she has no contact with him.

15. The Tribunal asked if she had any breaks from full-time study.  She said no breaks.  The Tribunal said it appears she has had some breaks.  She then changed her evidence and said she returned to China in 2013 when there was a typhoon as her parents were worried.

16. She also went back in June 2012.

17. She is twenty five years old.  The Tribunal asked what she had studied since she left school.  She said she had studied first in Auburn.  She studied language and then business in 2014 and then management.

18. The Tribunal asked what professional, trade or vocational qualification this would lead to.  She appeared to be confused and then said an apprenticeship.  The Tribunal asked where.  She said a supermarket.

19. The Tribunal put to the applicant, pursuant to s.359AA, that she had previously had two student visas refused.  One in March 2007 and one in January 2008 for providing fraudulent documents.  The Tribunal stated that she had previously said she had never had any visa refused.  The Tribunal said words to the effect that this would cause the Tribunal to find that she was not a credible witness and not accept her other evidence.  The Tribunal said she could seek time before replying and could seek an adjournment to consider her response.

20. She elected to respond at the hearing.  She was evasive and said her parents arranged the visa.  She then said she forgot about those visas as she had been looking after her child.

21. The Tribunal then confirmed that she received money every week from her father.

22. She said her mother also gives her some and provides her with accommodation and food.  She said her mother looks after her child at the house.  She said her mother cannot work as she looks after the child.  The Tribunal then asked how her mother provides for her needs.

23. She said her father gives her mother money.  She said her mother looks after her.

24. The Tribunal asked if there was anything further she wanted to put to the Tribunal.

25. She asserted that in November 2013 when the earlier visa was refused she did not lodge a review. She claims she did not do so and she went back in 2014 and her partner wanted her to continue but she would not.  The Tribunal again asked words to the effect of why she sponsored him in the first place if she felt so strongly.  She said her mother was keen and both parents agreed but she never wanted to.

Ms Lin (sponsor)

1. The sponsor then gave evidence.  She said she came to Australia in 2009.  She could not remember what visa she came on.  She said she currently works as a cleaner.  She said she goes to other places to clean.  She could not tell the Tribunal where those other places were or who her boss was.  She said she only knew a last name “Chen”.

2. When the Tribunal queried as to why she would not know where she works or any details about her boss, she replied she only cares about the work.

3. She said her husband is in Sydney.  He is working, cutting bricks.

4. The Tribunal said her daughter’s evidence is that she didn’t work and her father provided money every week.  She replied she sometimes works and sometimes stays at home. 

5. She said her daughter needs to study.  She said everybody makes some money.

6. The Tribunal asked if the applicant had anything further to put to the Tribunal about her mother’s evidence or any other issues.  The applicant then changed her evidence and said that sometimes her mother works and previously she was at home looking after her baby.

7. The Tribunal then asked the representative if he had anything to add.  He indicated he did not and asked to be excused.  The hearing then ended.

Dependent child criteria

1. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

2. At the time of application the first named applicant (the applicant) was twenty four years of age.  It is therefore necessary for the Tribunal to consider the criteria for applicants over the age of 18.

Dependent child

1. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(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.

2. 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].

Applicant under 25 or incapacitated for work

1. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

Relationship status

1. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a).

2. On 16 January 2012 the applicant lodged an application for sponsorship for a partner to migrate to Australia.  She completed the required documents and stated that she intended to maintain a lasting relationship.  She provided sworn documents indicating she was committed to the relationship and was engaged to be married on 24 September 2013.

3. On 8 January 2015 the applicant supplied a sworn statutory declaration to the Department.  In that statement she stated that she did not have any feeling towards the person she sponsored.  She said she agreed to sponsor him to Australia because of her parents’ request.  She claims that her purpose was not to marry him as she did not want to spend the rest of her life with a person she did not know.

4. This is in contrast to the previous documents provided on her application to sponsor a partner in which she stated she was engaged and committed to her partner.

5. The Tribunal put this issue to the applicant at the hearing, pursuant to s.359AA.  At the hearing she claimed that it was just because of pressure from her parents that she agreed.

6. The Tribunal, at hearing, asked the applicant if she had ever previously been refused a visa.  She said she had never been refused a visa.  The Tribunal then put to her, pursuant to s.359AA, that information on the Department file indicates that she had been refused a student visa in March 2007 and January 2008 for providing fraudulent documents.  The Tribunal explained that this information would affect her credibility and that she could seek an adjournment to consider her response.

7. She elected to respond at the hearing.  She at first stated that her parents did the application and she did not know.  She then stated that she was confused as she had a baby.

8. The Tribunal asked the applicant who was the father of her child (the second named applicant).  The child was born in January 2015.  The applicant provided an Australian birth certificate in which she had not named any father.

9. She provided a name for the father and said he was a friend of a friend.  When queried as to whether this person had anything to do with the child she repeated her written statement that she was at a friend’s party and she tried to avoid her partner and was drunk and she became pregnant.  The Tribunal asked if that person provided any support, she again repeated she did not have contact with him.  

10. The Tribunal does not accept that she would give birth to a child and not tell the father of the child who is known to her and her friends.

11. The Tribunal finds that she is not a truthful witness.  The Tribunal found the applicant’s evidence to be evasive and inconsistent.

12. The Tribunal put to the applicant her previous history of fraud and misrepresentation in her application for student visas.  She gave an evasive response and then stated that she forgot the circumstances of the visa refusals as she had being looking after her child.

13. The applicant claims at the hearing that she never had any intention to marry the person she was engaged to.  However, her statement is that a few weeks after this present application was refused she returned to China.  She claims they argued and then agreed to end the relationship.  She returned to Australia on the day her BC 100 visa was cancelled. 

14. The Tribunal has formed the belief that she returned after the partner visa was refused to continue her relationship.  The Tribunal does not accept that she would have argued if she had not been in a relationship.  The Tribunal finds that she only re-entered Australia when she was notified that her visa was being cancelled. 

15. The Tribunal has found that the applicant is not a witness of credit.  The Tribunal does not accept that her relationship with the person she previously attempted to sponsor while she held a permanent visa has ended. 

16. The Tribunal is not satisfied that she is not in a continuing relationship and does not continue to be engaged to the person she sponsored as her partner in 2012. 

17. Accordingly, cl.802.214(1)(a) is not met at the time of application, and does not continue to be met at the time of decision.

18. For the reasons above, cl.802.214 is not met at the time of application. 

19. At the time of decision, cl.802.214 does not continue to be met. Accordingly, cl.802.221(2)(b) is not met.

20. 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

1. The Tribunal affirms the decision not to grant the applicants Child (Residence) (Class BT) visas.

Catherine Carney-Orsborn
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.

   …