FU (Migration)

[2017] AATA 2102

FU (Migration) [2017] AATA 2102 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yidong Fu

VISA APPLICANT:  Ms Chuxin Yu

CASE NUMBER:  1617994

DIBP REFERENCE(S):  2016076435

MEMBER:Moira Brophy

DATE:27 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 October 2017 at 2:33pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Wholly or substantially dependent  – Substantial support from uncle in China – Mother’s written agreement to repay the uncle – Plan to sell property for repayments – Military service – Basic needs met by the military

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2 cls 101.211, 101.221, rr 1.03, 105A

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 Immigration on 17 October 2016 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 to the Department of Immigration for the visa on 6 January 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 and cl. 101.221 which require the applicant to be a ‘dependent’ child as defined in regulation 1.03.

4. The delegate refused to grant the visa on 17 October 2016 on the basis that cl.101.211 and cl.101.221 were not met because the delegate was not satisfied the visa applicant was wholly or substantially dependent on the review applicant for her basic needs of food, clothing and shelter.

5. The review applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner Mr John David Henderson. 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 her registered migration agent.

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

   BACKGROUND

8. The visa applicant was born in China in 1991 and is a citizen of China. She is currently 26 years old. At the time of application she was residing in Baoding City with her grandmother. On the application the visa applicant stated that she had been a full-time student since she completed her military service and was currently studying at Baoding Shijii Meidai Technical School in Baoding City. She commenced study there on 1 March 2015 and the estimated completion date for the course was 30 June 2016. The visa applicant wrote on the application that her mother was providing her with 625 RMB per week and that she used this money to purchase clothes, transportation, phone, and other necessities such as cosmetics, books and study needs.

9. The review applicant was born in China in 1962 and is currently 55 years old. The review applicant is the visa applicant’s mother. She was divorced from Yu Qian, the father of the visa applicant on 20 June 2003. The review applicant married Aleksander Gulevski, an Australian citizen and on 21 February 2013 she was granted a Temporary Partner visa (Subclass 309) and on 10 September 2014 she was granted a Permanent Partner visa (Subclass 100).  At that time she advised her daughter was non-migrating independent child. The review applicant and Mr Gulevski divorced and at the time of application she was not partnered. On 14 October 2017 the review applicant and Mr John David Henderson were married.  At the time of application the review applicant declared that she was receiving Centrelink income support payments.

10. The visa applicant was interviewed by telephone by a delegate of the department on 4 August 2016. The visa applicant stated that she had been living with her grandmother at a unit owned by her uncle since she was discharged from the Army in 2014.  At the time of interview she said she is required to pay rent of 600RMB per month to her uncle but according to an agreement her mother has with her uncle she has not actually made any payments as yet. The visa applicant said she received another 3500RMB per month in cash from her uncle and she uses these monies for her daily needs such as food and clothing.

11. In the Decision Record, a copy of which the review applicant provided to the Tribunal, the delegate stated that he was not satisfied that the visa applicant was wholly or substantially reliant on the financial support of the review applicant for the basis costs of food, shelter and clothing, and therefore was not a dependent child at the time of application or at the time of decision.

12. Prior to the hearing the review applicant’s migration agent provided additional documents to the Tribunal including but not limited to the following: a personal statement  of Yidong Fu, Statutory declaration of John David Henderson, Certificate of home ownership, Notice of intended marriage, current study certificate of Chuxin Yu, Student ID card of Chuxin Yu.

    TRIBUNAL HEARING

    Review applicant’s evidence

13. The review applicant confirmed that she divorced her first husband in 2003 and the visa applicant is her only child. The review applicant was given sole custody of her daughter after the divorce. The review applicant first came to Australia in 2013 on a Partner visa and she was granted a permanent partner visa in 2014. Her then husband had not been inclined to provide financial support to her daughter but she has now met and married a man who wishes to provide financial support to her daughter and to have her live with them.

14. The review applicant told the Tribunal her daughter had been recruited into the army from 2007.

15. The agreement with her brother was a family arrangement but it was protected by a written agreement. In the agreement dated 7 April 2013 the brother agrees to provide living expenses for the visa applicant after her mother goes to live in Australia. This arrangement was on the basis it was to be regarded as a loan and it was to be repaid in ten years’ time.

16. The review applicant said her daughter lives with her mother in a property owned by her brother. He mother was 82 years old and in good health. She is in receipt of a pension. The Tribunal asked the review applicant about the reference to her brother providing money each week to her daughter. She said her daughter goes to her brother’s place to get the money from him. That had been the arrangement since she came to Australia in April 2013.Her brother keeps a record of the monies owed and her daughter has to sign for receipt of those monies each time she collects.  It would not make sense for her brother to send the money to Australia and for her to then send it back to China. The review applicant said that she has sent money to her daughter on a few occasions but since she had not worked since she came to Australia that was not easy.

17. When asked how much she currently owed to her brother the review applicant said she had not worked that out. She did not keep a record. She relied on her brother to do that. When asked what work her brother did she said he was a truck driver. He lived with his wife, their son and daughter in law.

18. The visa applicant is a full time student. She attends classes Monday to Friday from 8 am to 4.30 pm.The review applicant told the Tribunal her daughter has to attend classes every day. She is studying at a beauty therapy college and she has been studying there since March 2015.

19. The review applicant told the Tribunal that the property she owned in China was valued at around 600,000 RMB (A$150,000) and that it was her intention to sell the property and repay the monies to her brother when her daughter was granted a visa. When asked by the Tribunal why the sale was contingent upon her daughter being granted a visa the review applicant said it had not occurred to her to sell the property otherwise.

20. The Tribunal put to the review applicant that parts of her evidence were not consistent with evidence she had previously given. It was put to the review applicant that at the time of application she had claimed that she was in fact supporting her daughter. The review applicant said she considered that to still be the case since she was supporting her daughter in that she would repay her brother the monies when the visa was granted.

21. It was put to the review applicant that prior to her application to the Tribunal there had not been any mention of her selling a property she owned to repay the monies rather it was an agreement she was to repay the monies in ten years. The review applicant was not able to answer why that was the case. She said it had not occurred to her previously she could sell the property to repay the monies. When asked whether she intended to sell the property to repay the monies if the visa was not granted she said she had not considered what she would do to repay the monies if the visa was not granted.

22. The Tribunal enquired as to whether the unit was rented and the review applicant said it was not rented as it was not in a good location so she did not consider it would be worth the associated risks to rent for a small return. It was put to the review applicant that the rent from the property would have produced an income for her daughter and thus reduced her indebtedness to her brother the review applicant said that had not previously occurred to her. The review applicant said she had purchased the property in 2007. The Tribunal enquired as to why the property had not been sold in preference to having her brother provide financial support to her daughter the review applicant said it had not occurred to her that she could have already sold the property.

    Evidence of Mr John David Henderson

23. Mr Henderson told the Tribunal he and the review applicant had recently married. He said he had not net her daughter. He understood her daughter’s needs were met under an agreement she had with her brother.

24. Mr Henderson said he had not had children of his own so was very much looking forward to meeting the daughter of the review applicant and of having her to come and live with them. As a self-funded retiree he considered he was in a position to financially support both the review applicant and her daughter.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in this case is whether the visa applicant was wholly or substantially reliant on the review applicant for his basic needs of food, clothing and shelter at the time of application and continues to be wholly or substantially reliant on the review applicant at the time of this decision.

26. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing by the review applicant and visa applicant. The Tribunal has also taken into account the information received after the hearing.

27. At the hearing the Tribunal put the review applicant on notice of information contained in the file which it considered to be inconsistent with evidence she gave at time of hearing in accordance with s.359AA of the Act, inviting her to comment on or respond to the information.

28. The Tribunal does not consider that the review applicant’s response to the information put to her in accordance with s.359AA of the Act adequately addressed the matters raised. It has placed some weight on the information provided by the review applicant previously as well as the discrepancies outlined above.

29. The review applicant’s oral evidence at the hearing was vague and tentative and at times it was inconsistent with the information provided to the Department and the Tribunal. For example, on the application the visa applicant wrote that the review applicant was supporting her by giving him 625 RMB per week for living expenses. However, it was subsequently claimed that the visa applicant’s living expenses were being met by her maternal uncle on the basis that he would be compensated according to a tendered agreement in ten years’ time or when the review applicant sold a property she owned in China.

30. The Tribunal places little weight on the Agreement between the review applicant and her brother dated 7 April 2013. The Agreement was not witnessed. There were no monthly figures cited in the Agreement and no details as to how much the loan was to be for, how the loan was to be repaid other than it was to be repaid in ten years. The receipts referred to in the evidence of the review applicant were not before the Tribunal. The Tribunal considers the lack of specificity in the Agreement to be a persuasive indicator of it being created for the proceedings rather than a genuine agreement between the parties.

    Dependent child criteria

31. 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. 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).

32. 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].

33. The Tribunal finds that the visa applicant was over the age of 18 years at the time of application and is over the age of 25 years at the time of this decision. The Tribunal finds that the visa applicant was not incapacitated at the time of application or at the time of this decision. The Tribunal is satisfied that the visa applicant is not engaged to be married and has never been married or in a de facto relationship.

34. Therefore the only issue for the Tribunal to consider is whether the visa applicant meets the definition of ‘dependent’, in r.1.05A that is, whether she was wholly or substantially reliant on the review applicant for her basic needs of food, clothing and shelter at the time of application and continues to be wholly or substantially reliant on her for her basic needs of food, clothing and shelter.

35. There was consistent evidence provided that the visa applicant’s uncle (the review applicant’s brother) has been providing food, accommodation and clothing to the visa applicant since the review applicant migrated to Australia in April 2013. The review applicant stated that her brother provided financial support to the visa applicant on the basis that he would be compensated once her property in China was sold or in ten years from the date of the agreement. As noted above, a translated copy of the loan agreement dated 7 April 2013 was provided to the Department. The document was translated and a certified copy of that translation was provided. Other documents submitted in support of the application include proof of ownership of the property in China by the review applicant.

36. The Tribunal’s concerns about the evidence presented in this case are set out above. It notes that the loan agreement was made at a time when the visa applicant was still in the Army and was being paid in that capacity. Her basic needs were being met by the state. In that context the agreement was for a level of support that could not be quantified. There was no evidence of the agreement being renegotiated once the situation changed in that after discharge the visa applicant became of full time student dependent on her family for her basic needs. Although the agreement signed provided for the repayment of the monies in ten years’ time no evidence has been submitted to explain why the payment is delayed until then or to explain why the property was not used as security for the loan at that time or indeed why the property has not been sold to settle the debt sooner rather than allowing it to accumulate. The Tribunal is not satisfied on the evidence that in April 2013 there was a genuine agreement  in the terms as set out in the document provided to the Tribunal.

37. The Tribunal is not satisfied on the basis of the evidence before it that at the time of application or at the time of this decision the visa applicant was, or continues to be, wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter. The Tribunal accepts the review applicant’s evidence that she has provided some financial assistance to her daughter but that support has been modest and intermittent. It has not been sufficient for the tribunal to make a finding the visa applicant was wholly or substantially reliant on the review applicant as is required by r.1.05A(1)(a)(i). The Tribunal finds that the visa applicant has been financially supported by her maternal uncle since 2013. Consequently, the Tribunal is not satisfied, based on the evidence before it, that the visa applicant’s reliance on the review applicant was greater than any reliance by her on any other person or source of support, for financial support, to meet her basic needs for food, clothing and shelter as is required by r.1.05A(1)(a)(ii).

38. The Tribunal therefore finds that the visa applicant is not a dependent child of the review applicant at the time of application or at the time of decision.

39. Accordingly, cl.101.211(1)(a) is not met at the time of application, and does not continue to be met at the time of decision.

40. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a) are not met.

41. 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

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

    Moira Brophy
    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.

    …