Chen (Migration) - [2019] AATA 5074

Chen (Migration) [2019] AATA 5074 (8 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Yishi Chen
VISA APPLICANT:  Mr Wenlong Chen
CASE NUMBER:  1702239
HOME AFFAIRS REFERENCE(S):           OSF2016/037122
MEMBER:Margie Bourke
DATE:8 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 08 August 2019 at 2:23pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child of the sponsor – visa applicant over 18 years – providing regular support to the visa applicant – money originally from divorce settlement – substantial reliance – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 101.211, 101.213; rr 1.03, 1.05
CASES
Al Naqi v MIAC [2007] FMCA 874
Huynh v MIMA [2006] FCAFC 122
Huynh v MIMIA (2006) 152 FCR 576
Vo v MHA [2019] FCAFC 108
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 January 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 24 June 2016. 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).
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 which paragragh (a) requires that the visa applicant is the dependent child of the sponsor who is an Australian citizen or permanent resident or eligible New Zealand citizen, and cl.101.213 which requires for visa applicants over the age of 18 years that they meet other criteria in relation to single status, employment, study or capacity.
The delegate refused to grant the visa on the basis that neither cl.101.211 or cl.101.213 was met by the visa applicant.
The review applicant appeared before the tribunal on 5 August 2019 to give evidence and present arguments. The tribunal also received oral evidence via telephone from the visa applicant and from his mother, Meirong Wu. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing.
For the following reasons, the tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issues in this case in this case are whether the visa applicant is the dependent child of the review applicant within the meaning of r.1.03 and r.1.05A for the purpose of cl.101.211, and if so whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen (Migration)

Details

AGLC: Chen (Migration) [2019] AATA 5074
Case: [2019] AATA 5074
Decision Date: 8 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 101 (Child) visa by WC, who was the son of the review applicant, YC. The central dispute revolved around whether WC qualified as a "dependent child" of YC for the purposes of the Migration Regulations 1994, particularly given WC was over 18 years of age at the time of the visa application. The decision was made by Margie Bourke, a Member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether WC was the dependent child of YC within the meaning of regulations 1.03 and 1.05A for the purpose of clause 101.211 of the Migration Regulations. Secondly, if WC was found to be a dependent child, whether he met the additional requirements for visa applicants aged over 18 years as stipulated in clause 101.213.

The Tribunal affirmed the decision not to grant the visa. It found that while YC had paid a lump sum of 180,000 RMB to WC's mother as part of a divorce settlement in 2011, which was intended to cover WC's living and study costs, this did not establish that WC was "dependent" on YC at the time of the visa application in June 2016. The Tribunal noted that YC had left China in 1998, had never met WC in person, and the divorce settlement was a one-off payment intended to resolve all financial obligations. The definition of "dependent" in regulation 1.05A requires a substantial period of reliance on financial support for basic needs, with that reliance being greater than any other source of support. The Tribunal concluded that the circumstances did not demonstrate this ongoing, substantial reliance by WC on YC. Consequently, the criteria for the grant of a Subclass 101 visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The main issues in this case in this case are whether the visa applicant is the dependent child of the review applicant within the meaning of r.1.03 and r.1.05A for the purpose of cl.101.211, and if so whether the visa applicant meets the additional requirements for visa applicants aged over 18 years at the time of application in cl.101.213.Relevant Background Information The following background information was provided by to the Department and tribunal in either written or oral evidence, and is accepted as reliable and consistent evidence and is accepted as fact by the tribunal. The review applicant, YC and the visa applicant’s mother MW married in China in 1996/7. They had one son, the visa applicant, WC, who was born in February 1998. YC left the marriage, his son and China in 1998 and travelled to Australia as the holder of a three month tourist visa. MW was left in China without a husband, with a young baby and no job. YC remained in Australia after the expiration of his tourist visa. He was unlawfully in Australia for ten years, until his presence was discovered by the immigration authorities in 2008. YC spent some months in detention. YC had married another woman (he thinks in about 2003), and had a child with her and had assumed responsibility for a step daughter. He was sponsored by his spouse, and was granted a partner visa. YC divorced MW in China in 2011. (If YC’s recollection of when he married his current spouse is correct, this marriage may not be valid as he had not divorced MW at the time, but this point is not relevant to the issues in this review.) YC has never met his son WC in person, after he left in 1998. The divorce settlement in 2011 was handled by representatives of YC and MW. Although YC was in China for the divorce proceedings he did not meet his son WC at that time. At the time of hearing of this review YC and WC had not met. The divorce proceedings involved negotiations about financial settlement. The divorce between YC and MW was mediated and an order was made based on agreement between the plaintiff YC and the respondent MW. The divorce order was made on the basis that the child WC is to be raised by MW, and the father pay a lump sum of 180,000RMB (the equivalent of approximately $25 - $26,000 AUD at the time) as compensation for raising the child and for her financial losses. This amount was stipulated to cover all living and study costs of the child. The mother was no longer eligible to apply for actions against the YC in relation to these matters. A copy of the divorce order was provided to the tribunal, and a copy of the document in Mandarin was produced by YC at the hearing and translated by the interpreter in the hearing. The amount of 180,000RMB was paid by YC into a bank account of MW in 2011 after the divorce order was made. The application for the visa which is the subject of this review was lodged on 24 June 2016. WC was born in February 1998, and was aged over 18 years at the time of application, having turned 18 years in February 2016. Assessment of relevant Evidence at the hearing

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Margie BourkeMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …

Ratio Decidendi

Legal Principle Established

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