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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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.

10. 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.

11. 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.)

12. 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.

13. 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.

14. The amount of 180,000RMB was paid by YC into a bank account of MW in 2011 after the divorce order was made.

15. 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

16. MW stated that she and WC initially lived next door to MW’s older brother, and his family. When WC was seven years old, his mother and WC moved house in Liangjing to be closer to the elementary school. MW stated she could not afford to move again in 2011 for middle school, so WC boarded with his uncle from 2011, and was living with his uncle at the time of application.

17. YC stated he did not pay any financial support to WC until February 2017, after WC left his uncle’s home.  WC stated he was living at his uncle’s home in June 2016, and after this time, he moved out of his uncle’s home and his father paid him a direct allowance. MW stated that YC did not pay any financial support to her for WC from 2011 after the divorce settlement. All the witnesses gave consistent evidence that in June 2016, at the time of application, YC was not providing any direct or regular financial support to WC. MW paid her brother, (the uncle of WC) 600RMB per month to cover WC’s accommodation and other basic needs.  MW stated that she thought in 2015 WC started to contact YC directly for money; this occurred first when his mother had no money to buy him a mobile phone.

18. I accept that WC boarded with his uncle from 2011 to 2016 (and included at the time the application was lodged in June 2016).  I accept the evidence that MW paid 600RMB each month to her brother to cover WC’s daily expenses, including his accommodation, clothes and food during this period 2011 to 2016.

19. In the Department decision record dated 25 January 2017 the delegate records evidence of two transfers paid from YC to WC in January 2015 and in January 2016. Two foreign exchange records are on the Department file which record a transfer from YC on 19 January 2015 in the amount of $2340 (12,000RMB) and from YC on 27 January 2016 in the amount of $2579 (12,000RMB). Both transfers were to the same account number, the customer was not named and was paid in cash.

20. It is an interesting situation to assess this evidence. In the hearing the payer YC in the foreign exchange records to the Department did not give evidence of either payments made to WC. In the hearing the person that is the assumed and claimed payee, WC, did not give evidence of receiving either payment. MW did give evidence of WC turning to his father for money for a mobile phone, when she did not have money to give to WC for a phone. However, I have considered all the evidence, including the documents provided to the Department, and I accept that YC transferred money to WC for the first time after 2011 in January 2015 so that WC could purchase a mobile phone.   I accept that YC transferred further money to WC in January 2016 for other personal items WC wanted that MW could not afford.

21. I accept the evidence of YC that he did not commence to financially support WC in the sense of paying for his accommodation, and everyday living expenses until February 2017 when WC left his uncle’s house, and moved into a house rented by YC.

22. I accept the evidence of MW that she ceased paying for WC’s basic needs and board costs in 2016.  Based on the evidence before me, I accept that there is a linear distinction between WC living at his uncle’s home and his mother being responsible for paying the monthly board of 600 RMB up to the end of 2016, and WC moving out in early 2017 into premises provided financially by his father and the financial support to meet his basic needs are provided by YC from February 2017.

    Allegation made to the tribunal

23. A person contacted the tribunal and advised an officer of the tribunal that fraudulent documents had been submitted to the tribunal in this review.  The person identified themselves, but did not identify the documents they were referring to. I advised YC and his representative in the hearing of the fact of the allegation being made.  I give the allegation no weight, and it has no relevance in my deliberations.  This is because the documents are unable to be identified, and therefore any substance of the alleged fraud is unable to be considered.  The allegation cannot be considered for these reasons, and therefore I give it no weight, relevance or credence in this decision.

    S.359AA information

24. In the hearing YC, MW and WC all gave consistent information that YC had provided regular and substantial financial support to MW from 1998 until the divorce settlement in 2011. YC and MW provided consistent oral evidence that YC remitted $10,000AUD  to MW in China each year after he arrived in Australia. I find this evidence lacks credibility as YC stated he was illegally in Australia, illiterate and in the ‘underground’. YC stated he had carpenter skills which were needed in Australia, he found it easy to find work, and he sent the money to MW each year in three or four instalments.  The evidence of YC was that for the period 1998 to 2008 he had no papers, he formed a new relationship and married in 2003, after which he was supporting two other children and subsequently he spent seven to eight months in detention in 2008. It is hard to reconcile this evidence of YC with his evidence of making substantial and regular payments to MW from 1998 to 2011.  MW’s evidence is that she struggled financially and things were difficult, and she raised WC alone.

25. I assess this this claim that YC financially supported MW for thirteen years with payments of approximately $10,000AUD per year as that it lacks credibility and plausibility.  The evidence of YC and MW about the substantial and regular financial support from YC to MW over thirteen years from 1998 to 2011 does not seem to be consistent with their evidence of their circumstances over the same period. YC’s evidence of his circumstances are that he was illegal with no papers and supporting another family, and MW’s evidence of her circumstances are that she suffered financially and times were very difficult for her.

26. In the hearing YC stated that MW and WC lived with MW’s parents when he left China in 1998. Conversely MW stated that after YC left China in 1998 it was just her alone with the baby, and she and WC lived alone then, although her older brother lived next door.   Also in the hearing YC stated he made the regular payments amounting to $10,000AUD per year between 1998 and 2011 initially into MW’s father’s bank account, but then MW opened a bank account and the money was transferred into her bank account.  Conversely, MW stated she did not open a bank account until 2011, for the settlement money to be paid into.

27. I explained the relevance of these two points of inconsistent evidence was the reliability and credibility of the evidence in relation to the financial support provided by YC over the period 1998 to 2011, and the general reliability and credibility of the evidence of all the witnesses in relation to the financial dependence of WC upon YC.   I explained the consequences of the tribunal relying upon the inconsistent evidence, and finding the evidence of the witnesses is not reliable or credible, would be the reason or part of the reason for affirming the decision under review.

28. After a short adjournment, YC elected to respond in the hearing.  He stated MW lived next door to her older brother. I discussed with YC that my concern was MW had stated she had not lived with her parents, which had been his evidence.  YC again stated MW lived next door to her older brother.  I find YC’s disinclination to give evidence about whether or not MW lived with her parents or alone with the baby, was based on a reluctance to discuss the issue.  I am satisfied he understood the point, and that there were no problems with the interpreter.   I find YC had left his wife and young baby in very difficult circumstances in 1998, and did not wish to acknowledge this in detail. YC did state in his evidence that things would have been hard for MW after he left their marriage.

29. YC stated he remembered the accounts incorrectly.  He stated that MW’s evidence would be right, and she opened her own bank account in 2011 for the divorce settlement payment.

30. YC stated he was nervous, and asked the tribunal to consider he was illiterate.  I have considered that witnesses and parties can be nervous in tribunal hearings. I do not accept that an illiterate person is by virtue of his illiteracy unable to give inaccurate evidence.  Illiteracy is not the equivalent of loss of memory. I have assessed the evidence of YC as being detailed and his answers were appropriate. YC stated in his evidence when he could not remember dates or other facts exactly, due to the passage of time.  I find and assess the oral evidence of YC in this review as being freely and properly given in a fair process.  I accept that due to the long period of time involved, precision in dates or accuracy in recollection may not always be provided by the witnesses.  I am cognisant of the nerves or stress that a review applicant may feel, and I accept that witnesses may be nervous. However, I am satisfied that even so, the tribunal process was made as comfortable as possible for the witnesses and the evidence provided was given in an appropriate and fair manner, and may be assessed accordingly.

31. I have considered the inconsistent evidence and the responses of YC at the hearing. I am satisfied that MW lived and raised WC on her own. I am satisfied that MW did not open a bank account of her own until 2011. I find the evidence of YC that MW had lived with her parents, and had opened her own bank account before 2011 was incorrect. I find YC gave unreliable evidence to the tribunal.   I find YC gave the unreliable evidence in a manner as if he knew it was correct, and not as if he was uncertain of the facts.  I accept the facts related to the inconsistent evidence were a long time ago, but YC did not indicate he had any doubts or lack of knowledge about those facts when giving his evidence to the tribunal. It is this that makes his evidence unreliable, and I treat his other evidence with caution.

32. I have considered the evidence of the payments made to MW by YC during the period 1998 to 2011. I do not find that YC made no financial contributions during this time, and it is possible at times YC sent payments to MW.  However, I am satisfied MW experienced hardship raising WC on her own, and I do not accept that YC made payments equivalent to $10,000 each year for 13 years.

33. I have considered there are no records of these payments, although the evidence was the payments were made through a bank. I do not accept bank records could not be accessed for the dates in question. There is no evidence before me of any records of any payments made, processed or received at any time during this thirteen year period.

34. I have considered and accept the oral evidence of MW that the years raising WC on her own were very difficult, and they struggled financially. I have considered and accept the evidence of YC that he met and married another woman, assumed responsibility for her daughter, had a son together, and was discovered by immigration officials after over ten years ‘underground’.  I accept that YC spent time in detention in 2008.  I accept that four years after YC was granted permanent residency in Australia, in 2012, he established his own carpentry business, and currently employs four people on a part time basis.  However prior to  2011, based on the information before me, I do not accept that YC provided financially to MW and WC in the amount of approximately $10,000 per year.

35. The evidence before me that I accept is that MW struggled financially between the period 1998 to 2011 (and afterwards).   I have assessed this evidence, and carefully considered  the lack of any evidence that YC flourished financially in the period 1998 to 2011.  I have considered that there was consistent oral evidence that YC provided financial support over the period 1998 to 2011, but I do not find this evidence is credible in the circumstances.

36. It is not relevant to my time of application findings for the purpose of r.1.05A  that I am not satisfied that YC did not provide for WC as he claims in the period 1998 to 2011.   However, it is relevant to my assessment of the witnesses’ evidence and their reliability. The conclusions I draw is that the parents of WC are both supportive of the visa application.  I find that YC and MW and WC embellished the evidence and provided false evidence to improve the information about the financial support provided by YC in the period leading up to the divorce settlement in 2011.

    Dependent child criteria

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

    Dependent child

38. At the time of application, the visa applicant 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.

39. 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].

40. Based on the notarial certificate recording his date of birth, the date of birth recorded in the visa applicant’s other identification documents, and the oral evidence of both YC and WC, I am satisfied that WC was born in February 1998, and was aged 18 years when the application for the visa was made in June 2016.

1. There is no evidence before me that WC is incapacitated for work within the meaning of r.1.03(b)(ii) or r.1.05A(1)(b). There is no medical or other evidence to suggest that WC is anything then a healthy student.

2. I accept based on the evidence before me that WC is not engaged, partnered or married at the time of application.

3. I have considered whether WC is a dependent child within the meaning of r.1.05A at the time of application in June 2016.  WC is 18 years of age at the time of application. Although WC turns 18 years in February 2016, I have considered a ‘substantial period’ for the purposes of r.1.05A to be a twelve month period immediately before the time of application. A twelve month period allows a sufficient period to assess the financial support the visa applicant receives.  In this case, although WC turns 18 years during the twelve month period, a period of time that includes his pre adult age also allows me to consider the provision of a money transfer to WC in January 2016 before WC turned 18 years.  Therefore the twelve month period allows a fair assessment of all the evidence of financial support, over a period of time to evaluate whether the visa applicant meets the criteria in r.1.05A.

4. The person that WC claims to be wholly or substantially reliant upon for financial support to meet his basic needs for food, clothing and shelter at the time of application is his father, YC.  The financial support provided by YC to WC is claimed to be through the divorce settlement in 2011 and any financial payments made subsequent to that.

5. YC made a payment of 180,000RMB (or approximately $25 or $26,000AUD) to MW in 2011 pursuant to a financial settlement as part of their divorce order.  This amount was compensation for MW’s financial losses and to cover the financial expenses of WC.  The divorce document does not recognise previous payments made by YC to MW.  This tribunal is not satisfied YC had made previous substantial financial payments to MW for her and WC’s support. The 2011 settlement was paid to MW as compensation for her financial losses incurred by being abandoned by YC her husband, and to raise the child on her own, and as compensation to cover the costs of raising WC, including all of the child’s study and living expenses.

6. After the divorce settlement in 2011, MW has no further legal entitlement for financial support from YC for WC’s upkeep and living expenses. I accept that from 2011 to 2016 WC resided with his uncle to be close to school. I accept that MW paid her brother 600RMB each month out of her money from the divorce settlement to cover the boarding costs of WC. I accept these costs included the costs for WC’s basic needs of shelter, food and clothes.  I accept MW was responsible for these payments.

7. I find that MW was the person who made the payments to WC’s uncle to cover his costs for his basic needs of food, clothing and shelter at the time of application, and the twelve month period immediately before the time of application.

8. The source of the money was originally the divorce settlement in 2011. I have considered whether YC can be found to be the person that WC relied upon to meet the financial costs of his basic needs at the time of application and in the twelve months immediately before that time. I find that YC is not the person WC relied upon.  The connection is too tenuous. The person responsible for making the payments from her money is MW.  If she spent the money from her divorce settlement in another way, or did not pay her brother, than WC had no reliance upon YC.  There is no stipulation in the divorce settlement that MW must continue to provide for WC up to and after he turns 18 years of age. If MW spent the money on property investment for the future in one transaction in 2011, and provided a home for WC in this way, then there is no breach of her commitment under the divorce settlement.  Further the divorce settlement was partially to compensate MW for being without a husband and for the costs of raising the child, which she had done since 1998. I find the divorce settlement payment to MW in 2011, cannot be interpreted as WC being substantially reliant upon YC in the period July 2015 to June 2016.  The divorce settlement is MW’s legally entitled funds, and some of which she chose to use to provide for WC up til June 2016, which was after WC had turned 18 years old.

9. I accept that YC provided WC with financial support in January 2016 in the form of one transfer of funds.  The only person who gave evidence who remembered the financial support given by YC to WC prior to February 2017 (when YC assumed financial responsibility for WC’s daily and living expenses) was MW.  I accept her evidence that YC gave WC money for things she could not afford.  I accept the money in 2015 was for a mobile phone. I find that in 2016 the money was for other things WC wanted or needed.  There is no evidence before me that this money in January 2016 sent by transfer was for WC’s basic needs of food, clothing or shelter.  I accept that in January 2016 WC was living at his uncle’s home, his basic needs were all provided for by his uncle, and that his uncle was reimbursed by MW for providing WC’s basic needs of food, clothing and shelter.

10. I have considered the case of Vo v MHA [2019] FCAFC 108. I have considered the principle espoused in that case that substantial reliance may be placed on more than one person who may provide financial support. However, based on the evidence before me, in this matter I am satisfied that the substantial reliance for financial support to meet WC’s basic needs of food, clothing and shelter was placed on his mother MW at the time of application.  

11. I have considered the case of Al Naqi v MIAC [2007] FMCA 874.  I have considered the principle that a broad practical judgment should be applied to assessing the dependency or substantial reliance of claimed dependence upon spouses.  However in the case under review, MW and YC have been separated since 1998 and divorced since 2011.  It is not a situation, where the financial support of the mother of WC can be interpreted as being provided as part of the spousal relationship with the father of WC.

12. I have considered the case of Huynh v MIMIA (2006) 152 FCR 576. I have considered the principle that there is no requirement to consider whether there is any need for necessity in WC’s financial support from YC.  However this is not the issue in this matter.  The facts are that the financial support to meet WC’s basic needs for food, clothing and shelter were provided by his mother MW at the time of application and for the twelve month period immediately before that time.

13. For all the above reasons, I am satisfied that at the time of application, and for a substantial period immediately before that time, WC the visa applicant was wholly or substantially reliant on his mother MW for financial support to meet his basic needs of food, clothing and shelter.  Further I find that WC’s reliance on his mother MW is greater than his reliance on any other person or source of support for financial support to meet WC’s basic needs for food, clothing and shelter.

14. Therefore I am not satisfied that at the time of application, and for a substantial period immediately before that time, WC the visa applicant was wholly or substantially reliant on YC the review applicant for financial support to meet his basic needs for food clothing and shelter. 

15. Therefore I am not satisfied that WC is the dependent child of YC at the time of application within the meaning of r.1.05A.

16. Accordingly, the visa applicant does not meet cl.101.211(1)(a) at the time of application.

17. I have not proceeded to consider whether WC meets the remaining requirements of cl.101.211 or the requirements of cl.101.213.

18. 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

19. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Margie Bourke
    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.

    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.

    …