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

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).
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).
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.
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…

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.

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Details

AGLC: Cui (Migration) [2023] AATA 4258
Case: [2023] AATA 4258
Decision Date: 13 December 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a visa applicant who had turned 18 at the time of application. The review applicant sought to establish that the visa applicant was a dependent child. The Tribunal was required to determine whether the visa applicant met the criteria for being a dependent child of the review applicant at the time of application, and subsequently, whether the visa applicant continued to be a dependent child at the time of the decision.

The central legal issues before the Tribunal were the interpretation and application of the definitions of "dependent child" and "dependent" under the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the visa applicant, having turned 18, was substantially reliant on the review applicant for financial support to meet basic needs, and whether this reliance was greater than any reliance on other sources of support. The Tribunal also needed to consider the criterion relating to the visa applicant studying in a third country, which had not been fully determined.

The Tribunal reasoned that for a person aged 18 or over to be considered a dependent child, they must be substantially reliant on the parent for financial support for basic needs, and this reliance must be greater than reliance on any other source. The Tribunal found that the visa applicant, despite having some income and government subsidies, was substantially reliant on the review applicant for basic needs, and this reliance was greater than any other support. The Tribunal noted that substantial money transfers from the review applicant supported this finding. However, the Tribunal did not make findings on other requirements, such as the visa applicant's study status.

Consequently, the Tribunal remitted the application to the Department for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl.101.211 and cl.101.221(2)(a) of Schedule 2 to the Regulations, leaving the determination of other criteria to the Department.

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 matter should be remitted to the Department for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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? 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. 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]. 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] Subregulation (2) relates to protection, refugee and humanitarian visas and is not applicable here. 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.

Decision

Reasons for decision

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 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 CrawshayMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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.…

Ratio Decidendi

Legal Principle Established

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