1609401 (Migration)

[2016] AATA 4814

1609401 (Migration) [2016] AATA 4814 (7 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ramon Claveria

VISA APPLICANT:  Mr Shing Hoi Lam

CASE NUMBER:  1609401

DIBP REFERENCE(S):  OSF2015/068886

MEMBER:Meena Sripathy

DATE:7 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary)(Class TK) Subclass 445 (Dependent Child) visa with the direction that the visa applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

•cl.445.211 of Schedule 2 to the Regulations

•cl.445.221 of Schedule 2 to the Regulations

•cl. 445.222 of Schedule 2 to the Regulations.

Statement made on 07 December 2016 at 1:06pm

CATCHWORDS
Migration - Extended Eligibility (Temporary)(Class TK) Subclass 445 (Dependent Child) visa - Sufficient funds given to aunt by mother - To cover costs of food, accommodation and clothing - Visa applicant continues to be substantially reliant on mother for financial support for basic needs - Financial support on mother is greater than on any other person or source of support

LEGISLATION
Migration Act 1958 – Migration Regulations 1994, Schedule 2 - ss. 65, cl.445.211, cl.445.221, cl. 445.222 - r.1.05A(2)(i) and (ii)

CASES
Huynh v MIMA [2006] FCAFC 122

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 23 May 2016 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Shing Hoi Lam (the visa applicant) applied for the visa on 9 June 2015 as the son of Ms Man Hung Lai, the holder of a Subclass 820 visa (the visa holding parent). The visa applicant is sponsored in this application by Mr Ramon Claveria (the review applicant) who is also sponsoring Ms Lai for her partner visa.

3. The visa applicant is 20 years old.  At time of application he was living in Shenzhen City, Guangdong Province since January 2015. Between September 2012 and January 2015 he indicated he was boarding at Shenzhen Xin An College. He claims he has been dependent for financial support on his mother since September 2002.  In support of the application he provided evidence of his parents’ divorce and sole custody granted to his mother in October 2002; a Statutory Declaration made by Ms Lai and Ramon Claveria; his birth certificate; Certification that he was a student from 2012 to 2015 at Guangdong XinAn Vocational Technical College and completed a course in Interior Architect Design; Certification that he is currently studying Pastry at Shenzhen Ding Royal Chef Catering Management Co. Ltd and will be finished by March 2016; a statement dated 15 June 2015 from Ms Lai stating that she has been sole financial supporter of the visa applicant since 1998 to date and has paid all his school fees since middle school and RMB 2000/month for this entire period, she also notes that her sister helped her to pay for his fees between 2013-2015 while she has been in Australia and that she transferred HK$30,000 to the visa applicant’s Hangseng bank account in August 2015; a copy of a printout from an account held at Hangseng Bank showing a transfer of HK $30,0000 on 6 August 2015.

4. On 10 October 2015 and 13 April 2016, the visa applicant was interviewed by an officer of the department.  Details of the information obtained are included in the delegate’s decision record, a copy of which was provided to the Tribunal with the review application. He advised that he was living with his aunt Ms Lai Wen Bing at her residence since February 2015 and that he had been receiving RMB 200-300 per week from his aunt to pay for food since turning 18 years (in April 2014).  He claimed his mother provided money to his aunt to provide to him, but he did not know how much or how often. With regard to the transfer of HK$30,000 into an account in his name in August 2015 he indicated that this account was inactive as he lost the bank card. 

5. Following the interview with the visa applicant an officer also interviewed the visa applicant’s aunt, Ms Lai Wen Bing.  She advised that the visa applicant has been residing with her since February 2015 and that she gives him RMB 300 per week to purchase food and clothing, and that her sister has given her cash when she comes to China to reimburse her for this but she had no evidence to substantiate this claim.

6. The delegate refused the visa on the basis that the delegate was not satisfied the visa applicant was wholly or substantially reliant on Ms Lai for financial support to meet his basic needs for food, clothing and shelter given that he resides with his aunt and receives RMB 300 per week from her since turning 18 years and therefore does not meet the definition of dependent in r.1.05A(2)(i) and (ii) and consequently does not meet cl. 445.211 and cl.445.221.

7. A statement of explanation from the visa applicant’s mother was provided to the Tribunal with the review application.  She reiterates that he has been solely financially supported by her since 1998 when she and his father divorced.  She states she has given money to her parents and sister to give financial support for her sons, and this is why she has no evidence of direct financial transfers to her son until August 2015 when she transferred funds to a bank account in her son’s name for the purposes of showing evidence of her support. She explained her attempts to lodge this application since 2013, when the visa applicant was 17 years old.  The sponsor also submitted a letter indicating his support for the application and confirming that the visa applicant’s mother provided financial support for the visa applicant through payments given to her sister. Evidence of a Westpac statement for an account in joint names of the visa applicant’s mother and her sister for the period October 2015 to April 2016 was provided, showing credit of some $50,000

8. In May 2016, the review applicant applied for priority processing of the review application on the basis that the visa application had already been delayed for numerous years due to conflicting advice from the Department.  It was submitted that the visa applicant was due to graduate from his course in July 2016 and they were concerned he would no longer meet the requirements for dependency.   The following further evidence in support of the application was provided:  Statements from Ms Lai’s sister detailing the financial support she provided the visa applicant on behalf of Ms Lai; statements from the review applicant and Ms Lai reiterating her continuous financial support of her children; schedule of basic needs of visa applicant paid from 2014 to date; Ms Lai’s Hangseng Bank account statements from 2013.

9. The review applicant appeared before the Tribunal on 5 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and Ms Lai. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America), Mandarin and English languages.

   Evidence obtained at the Tribunal hearing

10. The review applicant gave evidence to the Tribunal about his current circumstances and the background of how he came to meet and marry his wife. He had little specific knowledge of the visa applicant’s circumstances or detail of the financial arrangements between him and his mother.  He was unsure where and with whom the visa applicant lived.  He believed he was studying in a course in the hospitality area but was unsure if he was still studying or now working.  Regarding his wife’s financial circumstances, the review applicant was aware she recently commenced working but did not know precise details of her income.  He confirmed she had several bank accounts separate to him and one she held with her sister, but he did not know how she used these or where she sent money. He was not aware if she was sending money directly or indirectly to the visa applicant.

11. The review applicant’s wife gave evidence about how she met and married the review applicant and her work circumstances. She told the Tribunal the visa applicant was studying and living at college when she came to Australia in 2013.  She explained that she gave her sister two significant sums of cash in 2013, of RMB 150,000 and 100,000 respectively (referring the Tribunal to evidence of cash withdrawals of these amounts from her bank account on 21 December 2012 and 4 January 2013) to cover the education and living costs for her two sons for the period that she was in Australia.  She stated that her sister used these moneys to cover the college fees and weekly living expenses for both her sons from 2013 to 2015, and to date for the visa applicant. She said when she came to Australia in May 2013, people had arranged various introductions for her and she was anticipating meeting someone to marry and therefore had made arrangements for her sister to have adequate funds to cover her sons’ needs. The visa applicant did not finish college because he was not a good student. In 2015 he moved from the college to live with her sister and started a pastry course which he is still doing now. She confirmed that her sister owns the unit he lives in but her funds contribute to the costs of her son’s accommodation and other basic needs.

12. The Tribunal asked the review applicant’s wife about the account she opened in the visa applicant’s name in 2015.  She said she opened this account because the Department had raised the issue of the need for evidence of financial transfers.  The Tribunal put to her for comment the evidence given by the visa applicant to the officer at interview that this account was inactive as he had lost the card.  She said that he is quite careless and not good with money and that is why she wanted her sister to manage his funds.  However the witness said that he now does use this account and she can provide transaction statements to show his use of these funds. In relation to the Westpac account in joint names with her sister the witness explained this was an account opened in or around 2007 when her sister was in Australia for study. The witness would remit funds for her sister to use.  She confirmed that this account is not used now by her sister from China. The deposits made in October 2015 into this account are unrelated to this application. These are funds deposited by her father for her brother. 

13. The visa applicant in his oral evidence to the Tribunal confirmed that he lives with his aunt since February 2015.  He is still at cooking school and has until February 2017 to pass his exams, having failed them in July this year. He said he is not working.  Because he is a Hong Kong resident he has no permission to work on the mainland.  He confirmed he is single. When asked by the Tribunal how he is financially supported, he said his aunt gives him money which has been given to her by his mother.  His mother has always earned more than his aunt so he assumes she has provided the funds to her for him. He does not given money directly to his aunt from his mother, he understands they have an arrangement between them. The visa applicant confirmed that he has not had contact from his birth father since his parents separated and receives no financial support from him.  Other than his mother he has no other source of support. 

14. Following the hearing, on 6 December 2016 the Tribunal received statements from the visa applicant’s Han Seng bank account for 2015 and 2016, showing some limited activity in 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations and relevant clauses are set out in the attachment. Essentially the criteria require, at time of application, the applicant to be a dependent child of a visa holding parent and be sponsored by the sponsor of the visa holding parent. At time of decision the parent must continue to be a visa holding parent and the applicant must continue to be the dependent child of the visa holding parent, and continue to be sponsored by the same sponsor (with limited exceptions, not applicable in the present case).

17. The issue in the present case is whether the visa applicant is a dependent child of Ms Lai, who is a visa holding parent at time of application and continues to be a dependent child of Ms Lai at time of decision.

18. ‘Dependent child’ and ‘dependent’ are terms defined in the Regulations, which are extracted in the attachment.  The definition of ‘dependent’ in r.1.05A prescribes clear objective criteria to be met. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before that time. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs: Huynh v MIMA [2006] FCAFC 122 at [28]. The Full Federal Court held in Huynh, that the words of the regulation, on their proper construction, do not carry with them any implication of there being a necessity to provide the relevant support. The question which the Regulations require to be addressed is whether as a matter of fact, the first person is relying for support on the other person: Huynh at [44].

19. The Tribunal accepts on the evidence of the visa applicant’s birth certificate that he is the son of Ms Man Hung Lai.  The Tribunal finds on the evidence of departmental records before it, that Ms Man Hung Lai is the holder of a subclass 820 visa, and is a visa holding parent within the meaning of that term in cl.445.111. The Tribunal accepts on the basis of the review applicant’s oral evidence and the sponsorship form, that the visa applicant is sponsored by the review applicant, who is the sponsor of the visa holding parent, and the applicant therefore meets cl. 445.211(b).

20. The remaining issue is whether the visa applicant is a dependent child of Ms Man Hung Lai, within the meaning of that term in the Migration Regulations, at the time of application and continues to be her dependent child at time of decision. In considering whether the applicant is ‘dependent’ on Ms Lai at time of application and for a substantial period prior to that, and remains so dependent, the Tribunal must consider the elements contained in the definition of ‘dependent’ set out in regulation 1.05A(1) and the approach to that term established in Huynh v MIMIA, discussed above. 

21. In the present case the delegate refused the application on the basis of insufficient evidence to demonstrate that the visa applicant was wholly or substantially reliant on his mother for his basic needs at time of application or for a substantial period prior to the application.

    Is the visa applicant dependent on Ms Lai

22. Having considered all of the evidence now before it, including the further documentary evidence, statements and oral evidence provided at hearing, the Tribunal accepts that the visa applicant has been attending a cuisine school in Shenzhen and living with his aunt, cousin and grandfather since February 2015.  Evidence in support of his enrolment in the course was provided with his application, and the evidence that he is and has been living with his aunt has been consistent throughout the application.  Prior to this, it accepts that he was studying at Shenzhen Xin An College and was living there at boarding school from 2012 to 2015.  Evidence in support of his study in this period was provided to the Department. The Tribunal accepts that the applicant’s evidence in relation to his study history and place of residence has been consistent throughout the applicant and is supported by the documents provided. 

23. The Tribunal accepts, on the basis of movements records and oral evidence, that the applicant’s mother, Ms Lai came to Australia in 2013 and was here until July 2015, departing only once in this period from August to September 2013.  She told the Tribunal that she made arrangements for the financial support of her two sons, who were both studying at that time, by giving a substantial sum of money in cash to her sister for this purpose.  She provided evidence of two cash withdrawals from her bank account in December 2012 and January 2013, in support of her claim.  The Tribunal accepts that this documentation shows two withdrawals amounting to RMB 250,000 which is the equivalent of approximately AUD$50,000.  Her sister has provided several written statements detailing the financial support provided to her nephews, including for their school and boarding fees and funds for meals and clothing, and has declared that her sister provided her with funds for this purpose because she was in Australia in this period.  The Tribunal notes that the total sums Ms Wenbing Lai has detailed for the period 2014-2016 amounts to approximately AUD$36,000 (AUD$31,000 for the elder son for his studies in Macau, and AUD$5000 for the visa applicant in China).

24. The Tribunal observes that the issue in the present case is the lack of documentary evidence of the transfer of funds from Ms Lai to her sons for their financial support for basic needs in the relevant periods.  She maintains that she provided funds to her sister for this purpose and that her sister has made the payments on her behalf. In considering this, the Tribunal accepts the following about the background circumstances.  It accepts that the visa applicant is the son of Ms Lai, and that she has had sole custody and been fully and solely financially responsible for her two sons since her separation from their father over 15 years ago. This is consistent with the documentary evidence of the divorce and custody arrangements between herself and her former husband and Ms Lai and the visa applicant’s oral evidence.  It accepts that Ms Wenbing Lai is her sister, and that she has a close relationship with her.  This is consistent with the statements submitted by Wenbing Lai, and the joint Westpac bank account they have long held together. The Tribunal accepts Ms Lai’s evidence that this account was opened when her sister was in Australia for study and that she remitted funds to her sister at that time.

25. Having considered all of the above, and taking into consideration that the visa applicant is the son of Man Hung Lai and Wenbing Lai has her own child for whom she is responsible, the Tribunal is prepared to accept as plausible and credible that Ms Man Hung Lai provided the funds as claimed to her sister for the support of her sons’ basic needs and education costs while she has been in Australia.  While the visa applicant has been living with his aunt since the time of application and has no accommodation costs, the Tribunal accepts that there remains sufficient balance from the funds his mother gave his aunt in 2013 to cover the costs of his food, accommodation and clothing since 2015.  On this basis the Tribunal accepts that the financial support for his basic needs on which the visa applicant has relied for a substantial period prior to the application and at time of application has come from his mother. Consequently, and taking a broad practical approach to the costs of his basic needs, the Tribunal is satisfied that the visa applicant was substantially reliant on financial support provided by his mother for his basic needs.   Prior to the application, the Tribunal accepts that the visa applicant was studying at Shenzhen Xin An College and was boarding there during the school term. The Tribunal accepts that the fees for the visa applicant’s education, including his boarding costs were paid with funds sent by his mother, and that therefore the visa applicant was wholly or substantially reliant on his mother for his basic needs, for a substantial period prior to the time of application. There is no evidence before the Tribunal to indicate that the visa applicant has worked for income at any time and in his oral evidence he pointed out that as a Hong Kong resident he is not permitted to work on the mainland and he has not.  He also stated that he has not received financial support from any other person.  On this basis, the Tribunal accepts that the financial support relied on by the visa applicant from his mother at time of application, and for a substantial period prior to that, was greater than his reliance for financial support on any other source of income or person.

1. Therefore, the Tribunal finds the visa applicant was a dependent child of a visa holding parent at time of application and meets the requirements of cl. 445.211(a).  The visa applicant therefore meets cl.445.211.

2. At time of decision, the Tribunal accepts that the visa applicant continues to live with his aunt in her apartment.  The Tribunal accepts that in August 2015 his mother deposited funds in an account in his name at Han Seng Bank for his basic needs.  Although she claims he has now started to use those funds for his living expenses including food and clothing, the Tribunal is not satisfied that the statements in fact support that.  His own oral evidence to the delegate at interview, and the statements provided by Ms Lai to the Tribunal indicate that there were no transactions on this account in 2015, and only limited activity in 2016.  Nevertheless as indicated above, the Tribunal accepts that there remains sufficient balance from the funds his mother gave his aunt in 2013 to continue to cover the costs of his food, accommodation and clothing to date and the Tribunal is satsified that the visa applicant continues to be substantially reliant on his mother for financial support for his basic needs and that his financial support on his mother is 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. The Tribunal finds Ms Man Hung Lai continues to be a visa holding parent and, therefore the visa applicant continues to be dependent on the visa holding parent.  The Tribunal finds the visa applicant meets cl. 445.221 and cl.445.222.

3. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl. 445.211, cl. 445.221 and cl. 445.222.

   DECISION

4. The Tribunal remits the application for an Extended Eligibility (Temporary)(Class TK) Subclass 445 (Dependent Child) visa with the direction that the visa applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

   ·cl.445.211 of Schedule 2 to the Regulations

   ·cl.445.221 of Schedule 2 to the Regulations

   ·cl. 445.222 of Schedule 2 to the Regulations.

   Meena Sripathy
   Member