Cui (Migration)

[2023] AATA 4258

Cui (Migration) [2023] AATA 4258 (13 December 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr WenSheng Cui

VISA APPLICANT:  Mr Can Cui

REPRESENTATIVE:  Ms Tian Li (MARN: 0958634)

CASE NUMBER:  1920210

HOME AFFAIRS REFERENCE(S):          OSF2018/009375

MEMBER:David Crawshay

DATE OF DECISION:  13 December 2023

DATE CORRIGENDUM SIGNED:            20 December 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

-  In the Decision Record, replace

“Representative: Mr Liyuan Chen (MARN: 1462142)”

with

“Representative: Ms Tian Li (MARN: 0958634)”

David Crawshay
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr WenSheng Cui

VISA APPLICANT:  Mr Can Cui

REPRESENTATIVE:  Mr Liyuan Chen (MARN: 1462142)

CASE NUMBER:  1920210

HOME AFFAIRS REFERENCE(S):          OSF2018/009375

MEMBER:David Crawshay

DATE:13 December 2023

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations; and

·cl.101.221(2)(a) of Schedule 2 to the Regulations.

Statement made on 13 December 2023 at 2:54pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – applicant turned 18 at time of application – dependency – substantial money transfers – review applicant’s financial resources despite limited income – visa applicant currently studying in third country – substantially reliant on review applicant for basic needs despite government subsidies and part-time work – no findings on other requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a), Schedule 2, cls 101.211(1)(a), 101.221(2)(a)

CASE
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 Home Affairs on 31 May 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 June 2018. 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 (Cth) (the Regulations). Relevantly to this case, they include cl.101.211, which requires a visa applicant to be dependent on the review applicant at the time of application. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied that the visa applicant was dependent on the review applicant in the manner provided for in that clause.

4. The review applicant appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The first issue in this case is whether the visa applicant was a dependent child of the review applicant at the time of application pursuant to cl.101.211. As the visa applicant had turned 18 at the time of application, the second issue is whether he continues to be a dependent child of the review applicant at the time of decision pursuant to cl.101.221(2)(a).

7. 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. As at the time of application, the visa applicant had not turned 25 at the time of application. He therefore meets cl.101.211(1)(b).

   Is the visa applicant a dependent child of the review applicant?

8. 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.

9. 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 on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

10. The word “dependent” is relevantly defined in r.1.05A as follows:

    (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.

    [emphasis in original]

11. Subregulation (2) relates to protection, refugee and humanitarian visas and is not applicable here.

12. Additionally, there is no information in front of the Tribunal revealing any incapacity on the part of the visa applicant in the manner contemplated by subr.(1)(b), and that subregulation does not apply.

13. Therefore, the visa applicant must be found to be wholly or substantially reliant on the review applicant for financial support to meet his basic needs for food, clothing and shelter at the time of application and for a substantial period immediately before the time when it is necessary to establish whether the visa applicant is dependent on the review applicant.

14. A “substantial period” is not defined in the legislation, but it is defined in the dictionary as “of ample or considerable amount, quantity, size, etc.: a substantial sum of money”. Department policy states that a “substantial period” it is usually taken to be at least 12 months. The Tribunal has seen no information that would cast doubt on this part of the policy, and it accepts that a substantial period should be a period of 12 months immediately before the time of application.

15. Therefore, the subject period for the purposes of r.1.05A(1) should be the 12-month period from 14 June 2017 to 14 June 2018.

16. The review applicant has submitted several documents that purport to show money transfers being made from him to the visa applicant in the subject period. These can be summarised as follows:

Date	Amount CNY	Amount AUD
Alipay
1 July 2017	3,000	575
9 September 2017	1,500	287
WeChat
24 August 2017	970	184
16 September 2017	500	95
8 February 2018	1,000	203
13 March 2018	6,000	1204
16 March 2018	1,000	204
29 March 2018	1,000	207
8 April 2018	1,000	207
10 April 2018	1,000	205
12 April 2018	1,000	205
4 May 2018	2,800	584
Commonwealth Bank
10 July 2017	5,000
15 September 2017	1,000
6 December 2017	2,000
14 May 2018	1,000
Total		13,160

1. Other documents either evidence payments made outside the subject period, are in a language other than English and have no corresponding translation, or otherwise do not provide further evidence of the claimed payments having been made.

2. Having reviewed the information in front of it, the Tribunal is satisfied that the above sum comprises the money that is known to have been transferred from the review applicant to the visa applicant during the subject period except for money that was used to pay for tuition (which cannot be considered a basic need).

3. The sum is substantial and amounts to a monthly average of almost $1,100.

4. The visa applicant claimed at the Department stage to have monthly expenses of 500 CNY to 600 CNY – a figure on which the delegate did not make a finding in his decision. This figure was calculated by totalling the money the visa applicant claims to have typically spent on food and his mobile telephone. The sum did not account for accommodation costs as he claims to have lived in a rental house with his mother (of which more is below).

5. The Tribunal is aware through public source information via websites that the cost of living in Zhengzhou is $304 (without rent) in 2023.[1] However, whether the actual cost was 500 CNY (equivalent to $103 at the time of application), 600 CNY (equivalent to $124)[2], $304 or some lesser sum adjusting for inflation, these living costs all appear to be within the capability of the visa applicant based on the remittals that the Tribunal accepts had been made to him from the review applicant. It accepts based on this information that the visa applicant received money from the visa applicant that was sufficient for him to use for the purposes of paying for meals. In the absence of information that indicates otherwise, it accepts as logical that the visa applicant would have been able to use this money to pay for clothing as well.

   [1] LivingCost.org is billed as a crowdsourcing database, with the cost of living calculated as a consumer basket for a moderate lifestyle in developed countries.

   [2] >

   In terms of accommodation, the delegate considered the review applicant’s claim that the visa applicant was able to live with his mother in a rental property with the help of monthly compensation payments of 2,000 CNY that were given by the authorities due to the demolition of the review applicant’s house. This claim, however, was ultimately rejected as the review applicant had provided no evidence that he had transferred ownership of the property to the visa applicant’s mother.

6. Before the hearing, the review applicant submitted a document translated as “Rural housing land use permit” issued on 26 April 1993. The permit purported to show that the householder was “Cui Wensheng”, although his name was put in after a previous name was crossed out. However, the “amendment” was purportedly stamped with the seal of the Xigang Village Committee. The review and visa applicants both gave consistent testimony at hearing as to the details of this property, including that it was demolished to make way for other development. Based on this consistent testimony and the document provided in support, the Tribunal accepts that the review and visa applicants lived at an address in relation to which the review applicant had a permit. It accepts that this property was demolished and accepts as highly plausible that the review applicant received payments in compensation for its demolition.

7. Having considered this information in front of it and the findings made, the Tribunal accepts that the visa applicant lived with his mother at a property that was paid for by compensation payments. It accepts that these compensation payments were for the demolition of the house in relation to which the review applicant had a permit. It accepts that this accommodation was effectively provided for by the review applicant through his prior entitlement to the earlier demolished property.

8. A last concern for the delegate in his decision was how the review applicant would be capable of providing the monetary support to the visa applicant given his claim to be earning only enough money to be able to pay the rent. The review applicant’s response hinged on his claim to have sold his taxi licence in 2014 for a sizeable sum – 785,000 CNY (equivalent to $147,304 at that time).[3]

   [3] Ibid.

9. The Tribunal has seen evidence in the form of a contract between the review applicant and a third party called Zhaoyun Zhong dated 20 January 2014 for the transfer of a taxi licence. Although no sum for the transfer of the licence was included in the contract, the review applicant included a translation of a bank statement from his bank account showing two money transfers being made from Zhaoyun Zhong to the review applicant – one for 700,000 CNY on 21 January 2014 and the other for 85,000 CNY on 27 January 2014.

10. Based on this evidence, the Tribunal accepts that the review applicant sold his right to operate a taxi to a third person in 2014 and received a sum of 785,000CNY, it accepts as plausible that he had sufficient reserves to be able to make the payments to the visa applicant even though his salary at the time of interview was modest.

11. Having considered the findings it has made above in totality, the Tribunal finds that the visa applicant was substantially reliant on the review applicant for financial support to meet his basic needs for food, clothing and shelter during the 12-month period between 14 June 2017 and 14 June 2018. He therefore satisfies r.1.05A(1)(a)(i). Moreover, the Tribunal is satisfied that the visa applicant’s reliance on the review applicant is greater than his reliance on any other person or source of support for financial support to meet his basic needs for food, clothing and shelter. He therefore satisfies r.1.05A(1)(a)(ii).

12. As the visa applicant satisfies both of the cumulative requirements under r.1.05A(1), he satisfies that subregulation in its entirety and meets r.1.05A.

13. Because the visa applicant was dependent on the review applicant who was at the time of application an Australian permanent resident, cl.101.211(1)(a) is met at that time.

14. The requirements of cl.101.211 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). Again, as above, the Tribunal accepts that a “substantial period” should be taken to mean a period of one year immediately prior to the time of decision – meaning in this case the subject period should be from 13 December 2022 to 13 December 2023.

15. In a letter dated 3 December 2023, the review applicant relevantly stated as follows:

    Currently, Can Cui is studying in the Netherlands, and his monthly living expenses, including clothing, food, accommodation, etc., are about 700 EUR, approximately 1,200 AUD. The tuition fee (which includes a refundable deposit of 11,250 EUR, equivalent to approximately 17,674 AUD) is directly transferred to the school by me (Attachment E02). The remaining living expenses are transferred to Can Cui's account through the bank (Attachment E01 and E03). Living expenses here are relatively low, especially with affordable rent. This is attributed to two factors: firstly, Can Cui is in a small city with a naturally lower cost of living, and secondly, the Dutch government provides a subsidy covering half of the rent for studios that cost below 800 EUR per month. Additionally, Can Cui often prepares meals himself as he has studied cooking in New East, and his clothing expenses are minimal. Other expenses include train fares, mobile phone bills, etc.

16. Elsewhere in that statement was a table that relevantly provided as follows:

Study in Netherlands	Period E 09/2022 to Now Attachment E01, E02, E03	Date	Amount	Channel	Date Cui Can received	Amount	Transfer to
		No receipt	$4,500.00	2022.11.29	€2,794.00	Can Cui’s ICBC
		No receipt	$2,500.00	2023.3.12	€1,500.00	Can Cui’s ICBC
		2023.4.6	$1,000.00	Westpac	2023.4.12	$1,000.00	Can Cui’s ICBC
		Total to Cui Can	$8,000.00
		Date	Amount (AUD)	Channel	Amount (EUR)	Notes
		2022.6.15	$32,917.52	Westpac	€20,952	Language fee to Netherland €9702 Refundable deposit to Netherland €11250 ($17674)
		2023.6.5	$34,456.60	Westpac	€20,457	Bachelor tuition fee for first year
		Total to school	$67,375.32	€41,409
		Grand total	$75,374.32

1. The Tribunal has been able to verify from Westpac “payment summaries” that the two study payments totalling €20,952 in 2022 and €20,457 in 2023 were made by an account that corresponds to the account held by the review applicant, and accepts that those payments were made by the review applicant. It has also been able to verify from statements from the visa applicant’s Dutch bank account that the refundable deposits were returned to the visa applicant’s Dutch account. As the refundable deposits comprise part of the total tuition fee that was paid by the review applicant, it logically follows that the money deposited into the visa applicant’s Dutch account should be considered money that was given by the review applicant, despite its ultimately being deposited by the educational institution. The Tribunal therefore accepts that the sums of €11,238 on 12 October 2022 and €7,000 on 22 September 2023 should be regarded as money that was paid to the visa applicant by the review applicant. It accepts that although the €11,238 payment falls outside the subject period, some of it would have been used for the visa applicant’s expenses during the subject period.

2. The review applicant submitted a written statement dated 12 December 2023 from the visa applicant that sought to provide an explanation for other transactions in the Dutch account. This included that he was paid €3,661.35 in wages for a job in which he worked part-time from April-to-July 2023. These payments are included in the Dutch account.

3. The visa applicant’s written statement also sought to explain a number of transfers of money into the account, including rent and insurance subsidies from the Dutch Government and refunded deposits from former landlords. The Tribunal accepts that these transfers were made for the reasons given.

4. The salary payments comprise a sum which is around one-third of the €11,238 refund he received in October 2022. The subsidies for rent and insurance comprise €4,333 over the course of 2023 – again, this sum is a fraction of the refund received in October 2022. Even if these two sums are combined, the resulting combined sum is still well shy of the refund received in October 2022. If we consider that the visa applicant has, within that time, also received a €7,000 refund in September 2023, then it becomes clear in the eyes of the Tribunal that he receives substantially more from the review applicant (through the refunds) than he does from any other person or source of support – including wages or government subsidies.

5. Lastly, the Tribunal accepts that the visa applicant uses the money from the refund to pay for rent, food and clothing. In coming to this finding, it accepts the claims made about the visa applicant living a frugal life and cooking for himself.

6. Based on the above findings, the Tribunal accepts that the visa applicant is substantially reliant on the review applicant for financial support to meet his basic needs of food, clothing and shelter and has been for a substantial period immediately prior to the time of this decision. He therefore meets r.1.05A(1)(a)(i). Furthermore, it accepts that the visa applicant’s reliance on the review applicant is greater than his reliance on any other person or source of support to meet the basic needs. He therefore meets r.1.05A(1)(a)(ii).

1. As the visa applicant satisfies both of the cumulative requirements under r.1.05A(1), he satisfies that subregulation in its entirety and meets r.1.05A.

2. Because the visa applicant is dependent on the review applicant who is at the time of decision an Australian citizen, he continues to meet cl.101.211(1)(a) for the purposes of cl.101.221(2)(a).

   Is the visa applicant the child of the review applicant?

3. At the time of application, the visa applicant 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).

4. The Tribunal has sighted a copy of a birth certificate in respect of the visa applicant which lists his father as being the review applicant (refer Tribunal Document ID Number 11863434). It accepts this evidence and accepts that the visa applicant was the child of the review applicant at the time of application Accordingly, cl.101.211(1)(c) is met at that time.

5. The visa applicant has satisfied the cumulative requirements of cl.101.211. He therefore meets that clause in its entirety.

6. As the result of findings made above that the visa applicant continues to meet the requirement of cll.101.211(1)(a) and (c). He does not continue to meet cl.101.211(1)(b) because he has turned 25 at the time of decision. Specific provision is made for this circumstance in cl.101.221(2)(a)(ii), and as such he satisfies that criterion and therefore cl.101.221(2)(a).

7. The Tribunal has not made any findings on whether the visa applicant satisfies cl.101.213 or cl.101.221(2)(b) relating to study and will leave this task to the Department upon remittal.

   DECISION

8. 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 of Schedule 2 to the Regulations; and

   ·cl.101.221(2)(a) of Schedule 2 to the Regulations.

   David Crawshay
   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 or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.

   …