AUNG (Migration)

[2018] AATA 4058

AUNG (Migration) [2018] AATA 4058 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Cho Cho Aung

VISA APPLICANT:  Miss Jean Patricia Cho Mar Aung

CASE NUMBER:  1712558

DIBP REFERENCE(S):  OSF2014/084707

MEMBER:Moira Brophy

DATE:27 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·   cl.143.311 of Schedule 2 to the Regulations; and

·   cl.143.321 of Schedule 2 to the Regulations.

Statement made on 27 August 2018 at 2:31pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – dependent child – over 18 years of age – unemployed – sufficient savings for disposal – savings account – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, Schedule 2 cls 143.311, 143.321


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 11 April 2017 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant, Ms Patricia Khin Khin Swe applied for the visa on 14 March 2014. Her husband Mr Victor Gam Aung was listed as her migrating spouse. Their daughter, Ms Jean Patricia Cho Mar Aung was included as a migrating dependent child. She was aged 46 at the time of application.

3. The delegate refused to grant the visa on the basis that Ms Jean Patricia Cho Mar Aung, the applicant, was not a dependent at the time of application or decision and thus was not considered to be a member of the visa applicant’s family. Clauses 143.311 and 143.321 were not met.

4. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

5. The review applicant, Ms Cho Cho Aung appeared before the Tribunal on 2 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Jean Aung. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Ms Jean Patricia Cho Mar Aung (Ms Jean Aung) satisfies the secondary criteria for a Subclass 143 visa.

9. The criteria for a secondary applicant are set out in cl.143.3. Relevantly cl.143.311 and cl.143.321 provide that at the time of application and time of decision the applicant must be a ‘member of the family unit’ of the person who satisfies the primary criteria.

10. Regulation 1.12 provides the definition of a ‘member of a family unit’:

    Member of the family unit

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head ) if the person is:

    (a)  a spouse or de facto partner of the family head; or
    (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or
    (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and

    (ii)  is usually resident in the family head's household; and

    (iii)  is dependent on the family head...

11. The term ‘dependent child’ is defined in r.1.03

    “dependent child”
    means the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married), 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.

12. The term ‘dependent’ is defined in r.1.05A;

    Reg 1.05A      Dependent
    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.
    …

13. The term “child” as used in the definition of dependent child in r.1.03 has the familial “parent-child” meaning and the relationship must exist by blood, adoption or through a spousal relationship.  Natural children, adopted children and step-children of the family head or partner of the family head are, therefore, included in the term “dependent child”.

14. Regulation 1.05A prescribes clear objective criteria to be met for dependence to be established. 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].

15. Ms Jean Aung is currently 50 years old. There is no evidence or suggestion that she is married, engaged or in a de facto relationship. The Tribunal accepts on the basis of the evidence before it that Ms Jean Aung is the natural child of Ms Patricia Khin Khin Swe and she had turned 18 years at the date of application. The Tribunal also accepts that she was part of the original application for the grant of the visa.

16. As Ms Jean Aung had turned 18 at the time of application she does not meet the definition of “dependent child” in r.1.03(a).

17. There is no information before it indicating, and the Tribunal is not satisfied, that Ms Jean Aung is incapacitated for work due to the total or partial loss of her bodily or mental functions and she therefore does not meet the definition of “dependent child” in r.1.03(b)(ii).

18. The remaining issue is whether Ms Jean Aung, who is over the age of 18 years and is the natural child of the primary visa applicant, Ms Patricia Khin Khin Swe, is dependent on her so as to fall within the definition of “dependent child” in r.1.03(b)(i).

19. The visa application was lodged on 14 March 2014. The Tribunal accepts that at that time Ms Jean Aung was living with her parents in Myanmar. Ms Jean Aung gave evidence at the time of hearing that she had always lived with her parents. She was currently not in paid employment and had not been since October 2009. It was asserted that the company she had previously worked for had been affected by the global financial crisis and had shed a number of employees. Ms Aung said she was on a list of employees who may be dismissed. She was very stressed at the thought of being dismissed and chose to leave rather that continually being faced with the possibility of dismissal. She has not actively sought employment since that time and asserts her age and time out of the workforce render her virtually unemployable. All her financial needs by way of food, clothing and shelter were currently being met by her mother. Prior to the decision of the delegate the review applicant’s migration agent provided some documents regarding the property that Ms Jean Aung and her parents live in, a record of her savings as well as information as to the cost of living in Myanmar. Ms Aung gave evidence that they do not have receipts for clothing and food because Myanmar operates on a cash economy. The Tribunal found that evidence persuasive.

20. The delegate expressed the view that Ms Jean Aung was not a dependent in that she had sufficient monies at her disposal by way of her savings to support herself. Both the review applicant and Ms Jean Aung referred to those monies as being savings for the use of the family, not for Ms Aung’s daily needs. Those monies were held in an account in her name as she was the person who was most physically able to get to the bank. The Tribunal found that evidence persuasive particularly in light of their evidence regarding the cost of health care in Myanmar and the need to have readily available funds should her parents need to be admitted to hospital. Their evidence was that Ms Patricia Khin Khin Swe was admitted to hospital in 2016 for a hip fracture and they had to pay in excess of A$4,000 for her treatment. It was paid from that account.

21. Although there is limited independent evidence concerning Ms Aung’s financial support, it is difficult to see what documents Ms Aung could provide beyond those she has submitted to the Tribunal. Consequently, the Tribunal must rely on the credibility of the review applicant Ms Cho Cho Aung and the applicant Ms Jean Aung at the hearing and consider the consistency and reliability of the evidence as a whole.

22. The Tribunal found Ms Cho Cho Aung and Ms Jean Aung to be credible and accepts their evidence. The Tribunal finds their evidence to be consistent with each other and with the documentary evidence before the Tribunal and was satisfied it could rely on their evidence in the making of findings of fact.

23. Having considered the documentary evidence and the parties' oral evidence, and in the absence of anything to contradict these claims, the Tribunal is prepared to accept, on balance, that the visa applicant has been wholly or substantially reliant on her parents for financial support for her basic needs for food, shelter and clothing and that her reliance on her parents is greater than her reliance on any other source. The Tribunal is satisfied that such reliance existed for at least 18 months before the application was made and continues to exist at present.

24. On balance, the Tribunal is satisfied that at the time of the application and at the time of the decision, the visa applicant is, and has been a dependent child of her parents. The Tribunal finds she is a member of the family unit and meets cl. 143.311 and cl. 143.321.

    DECISION

25. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·cl.143.311 of Schedule 2 to the Regulations; and

    ·cl.143.321 of Schedule 2 to the Regulations.

    Moira Brophy
    Member