Feng (Migration)

[2021] AATA 3600

Feng (Migration) [2021] AATA 3600 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yujie Feng

CASE NUMBER:  2100950

HOME AFFAIRS REFERENCE(S):          CLF2017/109261

MEMBER:Kira Raif

DATE: 31 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.212 of Schedule 2 to the Regulations

Statement made on 31 August 2021 at 2:16pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18 – applicant’s mother had provided the applicant with full financial support – applicant was a dependent child of the sponsor at the time of application – continues to meet the dependence requirement –– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 802.212, 802.214, 802.221

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 Home Affairs on 15 January 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in July 1993. She applied for the visa on 17 November 2017. The delegate refused to grant the visa on the basis that cl.802.212 was not met because the delegate was not satisfied the applicant was a dependent child of her mother, the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 31 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

6. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(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.

7. 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].

   Is the applicant a dependent child of the sponsor?

8. The applicant was born in 1993 and was over the age of 18 when the application for the visa was made. There is no evidence that the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. There is no evidence that the applicant is, or was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The issue before the Tribunal is whether the applicant is a dependent child of an Australian resident and she claims to be a dependent child of her mother.

9. The applicant provided to the Tribunal a copy of the primary decision record. it indicate that the applicant entered Australia in September 2017 holding a Visitor visa. The application for the Child visa was made in November 2017. That  application was refused in August 2018 as the delegate was not satisfied the applicant met the study requirement. The applicant sought review of that decision and in August 2020 the Tribunal (differently constituted) remitted the matter finding that the applicant met the study requirement. The previous Tribunal did not make any findings in relation to the applicant’s dependence.

10. When making the application for the Child visa, the applicant stated from 2014 to the time of the application, the sponsor provided her with $600 for food, clothing, accommodation and tuition while the sponsor lived in Australia and when she was in China, the living costs were about RMB 2500 a month. The applicant states that she lived in a property owned by her mother. The applicant included a number of bank records showing deposits made by her mother but no bank transactions evidencing transfers. The delegate noted that one of the bank accounts was opened on 29 September 2017. 

11. In October 2020 the delegate wrote to the applicant inviting her to provide further information about her dependence on the sponsor. The applicant was also invited to comment on the fact that when the sponsor applied for the Partner visa, it was stated that the applicant worked as a Document Operator Intern from April 2013 to February 2014 while the applicant failed to list that employment in her present Child application. In response, the applicant provided a number of financial documents, including evidence relating to the sale of a property, evidence of bank transfers, evidence that the applicant has been living at a property owned by her mother, bank transaction records and other materials. With respect to her employment, the applicant states that her internship was not a formal, full-time job and would not be employment contemplated by cl. 802.214. The applicant submits that she did not mention that internship on the form due to an oversight. The applicant provided a statement explaining the financial arrangements, noting essentially that she lived in a property owned by her mother and received money transfers from her mother and  since arriving in Australia she has lived with her mother who had given her money for the various expenses.

12. The delegate noted that the property sale certificate shows that the property in China was recorded in the applicant’s name. When the property was sold, the applicant had sufficient funds to cover her basic needs. The delegate also noted that the applicant presented evidence of financial transfers between 2014 and 2015 but not since 2015 and not in the 12 months before the application was made. The delegate was not satisfied the applicant was a dependent child at the time of the application.

13. The Tribunal considers the delegate’s reasoning with respect to the property problematic for two reasons. Firstly, the fact that the applicant may have acquired funds as a result of the sale of the property does not mean she could not have been financially dependent on her mother. The issue is not the applicant’s need for dependence but the actual dependence, which requires a finding of fact. (See Huynh v MIMA [2006] FCAFC 122 at [39], [44].) It is not sufficient to state that the applicant had the funds and therefore did not need to be dependent on her mother. It is the actual dependence that needs to be established here. Secondly, and importantly, even though the property was in the applicant’s name, it is not apparent that the applicant had contributed to the purchase of the property or otherwise to the cost of maintaining the property. The applicant’s evidence, which is supported by documentary evidence, is that the property was purchased by her mother and gifted to the applicant. She explained to the Tribunal that her mother bought the property with her own funds and that the applicant had not contributed in any way to the purchase of the property or to the mortgage repayments. There is nothing to indicate that the applicant had the financial means to contribute in any way to the purchase or the upkeep of the property. In such circumstances, it may be said that the property belonged to her mother who had fully funded the property, and not to the applicant, even though it was held in the name of the applicant.

14. The applicant provided a number of documents to the Tribunal in July 2021. In her written  submission to the Tribunal the applicant outlined her background. The applicant stats that she was initially included in her mother Partner visa application but withdrew from that application and returned to China in April 2015 as her father became sick. Her father died in November 2016, which was devastating for the family. In September 2017 the applicant retuned to Australia to resume her study.

15. The applicant states that since arriving gin Australia, she has been living with her mother and stepfather and her mother made payments for rent and other expenses. With respect to her residence in China, the applicant states that her mother had inherited the ancestral home at Shandong Road, where the applicant lived. The applicant refers to the various documents showing her residence there. That property was owned by her mother. In August 2014 her mother purchased another property and the property ownership certificate confirms the ap’s mother as the sole owner. The applicant states that that her mother gifted that property to her and she was the legal owner of the property but the applicant notes that the gifting was not made in a form of a gift deed and the mother continued to assert control over the property and the proceeds of sale. The applicant submits that the nature of the gifting was not permanent or unconditional.

16. The applicant refers to the evidence of financial transfers during her residence in China and evidence of her expenses in Australia, bank record and evidence of various expenses.

17. In oral evidence, the applicant told the Tribunal that prior to coming to Australia, she lived at a family home which was owned by her mother as her father had never held any property. Prior to his death her father lived in the same property. The applicant stated that her mother had been sending money to her via WeChat since migrating to Australia in 2014 and she had the savings from the business in China that were used for that purpose. The applicant stated that she had never worked and never had her own income and the brief period of internship was not ‘real employment’ as it was done with a relative. The applicant states that while in China, she was too busy with her study to look for employment and in Australia she has not been given permission to work.

18. The Tribunal acknowledges that the evidence of money transfers between the applicant and her mother is somewhat limited and the applicant explains that the money was sent through WeChat and old WeChat records are not available. However, there is the documentary evidence of the transfers and there is nothing to contradict the applicant’s and her mother’s claims. Importantly, there is no evidence that the applicant had any other income, such as from employment or from her father or from any other source. That is, there is nothing to contradict the presented evidence that it was the applicant’s mother who had provided the applicant with full financial support since 2014. The issue of the property has been addressed above and although the Tribunal acknowledges that the property was in the applicant’s name, in the circumstances where the applicant had not made any contribution to the property, the Tribunal is of the view that it can be considered to be held by the applicant’s mother.

19. Overall, the Tribunal accepts that prior to her arrival in Australia, the applicant received financial support from her mother, and had no other source of support. The Tribunal is satisfied the support the applicant received from her mother was used to meet her basic needs for food, shelter and clothing. The Tribunal is satisfied the applicant’s reliance on her mother was greater than her reliance on any other source. The Tribunal is also satisfied that since her arrival in Australia in 2017, the applicant has been living with her mother and fully reliant on her mother for financial support to meet her basic needs.

20. The Tribunal finds that the applicant was a dependent child of the sponsor at the time of application, for the purpose of cl. 802.212(1)(a). She is not a step-child of the sponsor and cl. 802.212(1A) does not apply to her. The applicant was 24 years of age when the application was made and she meets cl. 802.212(b). The Tribunal finds that the applicant met cl. 802.212 when the application was made. The Tribunal is satisfied she continues to meet the dependence requirement (that is, she is a dependent child of the sponsor) at the time of this decision, for the purpose of cl. 802.221. The Tribunal makes no finding in relation to any other time of decision requirement.

    Conclusion

21. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.212 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member