1604659 (Migration)

[2016] AATA 4731

1604659 (Migration) [2016] AATA 4731 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Shao Mei ZHANG

VISA APPLICANT:  Miss Tsz Wai HONG

CASE NUMBER:  1604659

DIBP REFERENCE(S):  OSF2015/040715

MEMBER:Glynis Bartley

DATE:30 November 2016

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(1)(a) of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 30 November 2016 at 4:44pm

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Miss Tsz Wai Hong, was at the requisite times, the dependent child of her mother, Ms Shao Mei Zhang.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 February 2016 to refuse to grant Miss Hong a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

3. Miss Hong applied to the Department of Immigration for the visa on 23 February 2015. 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).

4. 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.

5. The delegate refused to grant the visa on the basis that cl.101.211, cl.101.221 and cl.201.213(c) were not met. The delegate stated that Miss Hong was 18 years of age. The delegate was not satisfied that Miss Hong was more reliant on Ms Zhang than on any other person to meet her basic needs for food, clothing and shelter. The delegate also concluded that Miss Hong had not continued her study since turning 18 or enrolled in any educational institution to commence further study.

6. On 5 April 2016 Ms Zhang applied to this Tribunal for review of the delegate’s decision.

7. Mrs Zhang appeared before the Tribunal on 11 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence in person from Miss Hong. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin language.

8. Ms Zhang was represented in relation to the review by her registered migration agent who appeared at the hearing.

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

   TRIBUNAL HEARING

10. Ms Zhang told the Tribunal that her daughter has been living in Australia since February 2016 and is currently studying Foundation English at the University of Sydney. She has been accepted into the Bachelor of Nursing course in 2017. Miss Hong completed the equivalent of her Higher School Certificate in Hong Kong in July 2015 and studied English at home in preparation for the Foundation course before travelling to Australia. Ms Zhang owns a property in Hong Kong and the rent is paid into an account that is linked to a credit card. Miss Hong had a credit card from 2013 and was able to withdraw money for her living expenses as required. In 2014 Ms Zhang gave her ex-husband HK$50,000 (around AU$8,700) to meet Miss Hong’s living expenses. Miss Hong has never been engaged or had a partner. She does not have any health problems and has never done any paid work. Miss Hong travelled to Australia in February 2016 after being granted an Electronic Travel Authority visa (Subclass 601). On 30 March 2016 Miss Hong was granted a Student visa (Subclass 573), which ceases on 21 March 2020. 

11. Miss Hong confirmed the oral evidence given by her mother.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The criterion in cl.101.211 essentially requires that at the time of application, Miss Hong 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 Miss Hong has turned 18 (or if already 18, only because Miss Hong has turned 25): cl.101.221(1) or (2)(a).

    Dependent child

13. At the time of application, Miss Hong 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.

14. The Tribunal finds that Miss Hong was 17 years of age at the time of application and has never been engaged or partnered.

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, Miss Hong must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2).

17. Ms Hong was 17 years old at the time of application and is now 19 years old.

18. Consequently, cl.101.211(1)(b) is met at the time of application and continues to be met at the time of decision.

    Child-parent relationship

19. At the time of application, Miss Hong 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).

20. The Tribunal has considered the documents on the Department file, including Miss Hong’s birth certificate, and is satisfied that Miss Hong is the daughter of Ms Zhang. Ms Zhang is an Australian permanent resident.

21. Therefore, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

22. For the reasons above, the criteria in cl.101.211 and cl.101.221(1) are met.

    Additional criteria for applicants over 18

23. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

24. The delegate refused the visa on the basis that Miss Hong did not meet the dependency or study requirements for the visa. In the Decision Record the delegate referred to Miss Hong being over 18, but she was 17 years of age when the application was lodged. The additional criteria therefore do not apply.

25. Accordingly, cl.101.213(1)(c) does not apply at the time of application and is not required to be met at the time of decision. Clause 101.221(1)(b) is therefore met.

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

    DECISION

27. 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(1)(a) of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Glynis Bartley
    Member

    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.

    …