Guan (Migration) [2018] AATA 2978 (3 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Yadi Guan
CASE NUMBER: 1712179
DIBP REFERENCE(S): CLF2016/88857
MEMBER:Susan Trotter
DATE:3 July 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa.
Statement made on 03 July 2018 at 9:08am
CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 – Dependent Child – Employed for approximately 30 hours per week in Australia for at least eight months since arrival – Significant means to income from employment – Reliance on sponsor in preceding 12 months not greater than reliance upon herself – Decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 359AA, 375A, 376
Migration Regulations 1994, Schedule 2, rr 1.03, 1.05A, cls 445.211, 445.222CASES
Al Naqi v MIAC [2007] FMCA 874
Huynh v MIMA [2006] FCAFC 122STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) on 24 May 2017 to refuse to grant the applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).
[1] Now the Minister for Home Affairs
The applicant is a (now) 24-year-old citizen of the People’s Republic of China. Her mother, Ms Lin Yu, also a citizen of the People’s Republic of China, is the holder of a Subclass 820 (Partner (Temporary) (Class UK)) visa granted on 4 November 2016 on the basis of Ms Yu’s relationship with her husband, Mr Paul Parker, an Australian citizen.
The applicant applied for the visa on 17 November 2016, with Mr Parker as the sponsor of the visa application. The delegate refused to grant the visa on the basis that, amongst other things, the delegate was not satisfied that the applicant was a dependent child of Ms Yu, as at the date of the visa application, as required. In particular, the delegate was not satisfied that the applicant had provided any evidence of financial support her mother had provided for her basic needs of food, clothing and shelter during the 12 months prior to the application being lodged. Further, the delegate considered that it could not be ruled out that the applicant received financial support from another source such as from her father or from employment income.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 June 2017.
The applicant appeared before the Tribunal on 21 March 2018 to give evidence and present arguments. The Tribunal resumed for a second hearing on 9 May 2018 at which time the applicant again appeared before the Tribunal to give evidence and present arguments. On 9 May 2018, the Tribunal also received oral evidence on affirmation from Mr Parker, by telephone. The Tribunal resumed for a third hearing on 18 May 2018,…
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CaseChat Overview and Summary
The Tribunal was required to determine if the applicant was a dependent child of a visa-holding parent at the time of her visa application and if she continued to be a dependent child at the time of the decision. This involved assessing the applicant's financial support, her educational pursuits, and her employment status, both in China and Australia, against the requirements of the relevant migration regulations.
The applicant's submissions and evidence indicated a complex history of financial support from her mother and stepfather, including payments for tuition, daily expenses, and travel. She claimed to have been studying full-time and not employed since birth, with her mother being her primary financial provider. However, the Tribunal noted discrepancies and inconsistencies in her statements, particularly regarding her financial independence and employment activities. The applicant's evidence suggested she had not worked in China and had not sought work in Australia, but the Tribunal found that her reliance on her mother and stepfather was not as absolute as initially presented, and that she had the means to support herself through employment.
Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 445 visa, finding that she did not satisfy the necessary criteria for being a dependent child.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It follows that the issue to be determined by the Tribunal is whether the applicant was a dependent child of a visa-holding parent at the time of the visa application and whether the applicant continues to be a dependent child of a visa-holding parent at the time of decision.CONSIDERATION The applicant’s visa application and associated forms submitted to the Department included statements that:(a) she had been unemployed since birth and that “I am currently studying”.(b) Mr Parker was her main source of financial support for money, food, tuition, rental assistance etc and that her mother, Ms Yu, also provides money to support her. It was submitted that the applicant satisfies the requirements of r.1.05A both at the time of the visa application and at the time of decision, in that she is a full-time student and financially dependent on her mother for food, clothing and shelter. It was also submitted that since arriving in Australia, the applicant has been trying to improve her English, has not worked in Australia, and is trying to enrol in a Diploma of Child Services but is still seeking to meet the English requirement. The applicant’s evidence to the Tribunal, at the hearings and in a statement dated 27 February 2018, included as follows:(a) She was born in Zibo in the Shangdong province of China. She attended primary, junior and high school in Zibo and in 2012 went to university in Beijing. It is approximately three and a half hours travel by bullet train between Zibo and Beijing.(b) She does not have any siblings. She and her mother started to live separately from her father in 2007, however, it was not until about 2009 or 2010 that her parents’ divorce was finalised. She and her mother moved out of the family apartment and rented premises. When the divorce was finalised, her mother received the apartment in the settlement but as her father did not pay any child support, her mother sold the apartment and bought a smaller apartment and they moved straight from their rented premises to the smaller apartment her mother bought. She was about 16 years of age at this stage. (c) From 2009/2010 to September 2012, she and her mother lived in the smaller apartment while she, the applicant, was completing high school. During this period, she only saw her father on one occasion, when her mother attended the family court in 2009 or 2010 to obtain the divorce. The only times she has seen her father since then is on a few occasions when visiting her grandmother. Her grandmother and father live in the same neighbourhood.(d) To the best of her knowledge, a condition of her mother’s divorce from her father was that no child support was payable and all her mother received was the family apartment. She has asked her father for assistance with tuition fees on two occasions since then , however he has refused to assist.(e) To the best of her knowledge, there has been no contact between her mother and father since the divorce.(f) When she moved to Beijing, she moved into a dormitory, where she continued living until October 2015. Her mother remained living in the apartment in Zibo, which her mother still owns. When she was living at the dormitory in Beijing and her mother was living in Zibo, she visited her mother approximately once per month.(g) In approximately 2013 or thereabouts, her mother came to Australia and then moved to Australia permanently in 2014. She is not sure if her mother’s apartment in Zibo is now vacant or rented out.(h) She left university in October 2015 (she applied for a deferral) and went to Yantai City to live with her uncle, her mother’s brother, and her uncle’s wife to study English (IELTS). Yantai is in Shandong, the same province as Zibo. Her cousin was away in Beijing studying so she stayed in his room. She lived in Yantai with her uncle and aunt from October 2015 to November 2016 but during that time, she also spent two to three months visiting her mother in Brisbane for holidays.(i) There were no discussions with her uncle and aunt about paying rent/accommodation/food and no agreement about a specific amount to be paid for that. However, she knows that during that time, her mother returned to China a number of times and gave money to her uncle but she does not know the specific amount. Her mother visited a number of times between October 2015 and November 2016. Her mother visited in about July 2016. (j) During the period September 2012 to 2014, before her mother moved to Australia, all her tuition fees were paid by her mother. The dormitory fees were RMB3000 every year. The tuition fees and dormitory fees were paid upfront at the beginning of every school year, which is in September. Her mother also paid RMB1200 per month for daily expenses. When her mother was still living in China, her mother mostly just transferred money into her bank account. (k) Before her mother moved to Australia permanently in 2014, she visited her in Beijing and gave her a large amount of cash, which she deposited into her bank account straight away. Every time her mother came back to China, she gave her more cash so there were only a few bank transfers. Her mother visited her in China on four occasions after moving to Australia. She cannot remember the exact dates. On the first occasion, her mother stayed with her in Beijing for a week and then went to Zibo for a couple of months returning via Beijing to see her on the way back. On the last two occasions her mother visited, she was with her stepfather, Mr Parker. She cannot remember exactly when those trips were but each time they visited, they would stay with her for a week.(l) Her mother and Mr Parker were married in Beijing in 2013.(m) After her mother moved to Australia, she gave her more money when she saw her. When she received money from her mother, she would deposit it into her bank account with the Agricultural Bank of China.(n) She has bank accounts with the Agricultural Bank of China and the Bank of China and other bank accounts as well. The vast majority of the money she received from her mother would be deposited to either her account with the Agricultural Bank or her account with the Bank of China. By way of example, one deposit, in August 2013, a cash deposit of RMB18,000, was for tuition. That was at the beginning of the school year. There were further deposits throughout 2013 and 2014 and then in August 2014 there was a deposit of RMB13,000. The large cash deposits in August/September were for tuitions fees because that is the start of the school year in China.(o) The last deposit shown in the bank account statements is to the Bank of China bank account in February 2016. When her mother gave her money, she was usually depositing the money into either of the two bank accounts.(p) A statement prepared by her previous agent shows when she has had money either deposited into her account or transferred. Copies of overseas money transfers from Mr Parker −one in October 2015 and two in November 2015 – were provided. Those transfers would have been for daily expenses, although she remembers that on one occasion, money was transferred to her for an IELTS course.(q) The money transfer on 20 October 2015 for AUD2,400 from Mr Parker to her was for the IELTS course/test and for daily expenses.(r) The money transfer on 24 November 2015 for AUD1,000 from Mr Parker to her was for her airfare to Australia.(s) The money transfer on 30 November 2015 for AUD1,500 from Mr Parker to her was for also towards her airfares to Australia.(t) When she was living with her aunt and her uncle, her mother only visited her once, in July 2016, and at this time, she directly gave her 5,000-6,000. She herself did not pay any money to her uncle but her understanding is that her mother gave her uncle some money to help with the costs of having her. She used the money she received from her mother to buy clothes and if her aunt and uncle were too busy to cook for her, she used that money to buy takeaway.(u) When she was living in Beijing, she was studying at the Beijing Institute of Performing Arts from September 2012 to October 2015. She was studying full-time throughout that time. She attended classes five days per week, Monday to Friday. Apart from classes, she also had to attend rehearsals. This was all part of the course. Her main area of focus was acting. She did not participate in anything outside the course.(v) During this period, she was not employed. She has not worked at any time. When queried whether she had sought work, answered advertisements or done any paid work in China, she responded no.(w) When queried as to whether she had ever advertised her services or answered advertisements for any type of work, she stated that she did some interviews when some companies came to her university trying to hire somebody. She may have responded to advertisements for such a company but she did not advertise her services as an actor or for any job seeking payment.(x) She most recently arrived in Australia in November 2016. When she arrived, she enrolled in a course studying English and started that course, a Certificate III in Spoken and Written English, in February 2017. She finished that course in November 2017.(y) When queried as to what she has been doing since she finished the English course, she said that she then intended to enrol in a childcare course at TAFE. However TAFE has asked her to provide a valid visa with an exact expiry date and she could not do that because she is currently only on a bridging visa.(z) She has been studying English at home since finishing her course in November 2017. She is currently living at the home of her mother and stepfather. She is being supported by her mother. Her mother covers her accommodation, food and clothing. Her mother transfers money to her and gives her a little bit of cash so she can do grocery shopping and pay for expenses. Her mother currently has two jobs as a housekeeper. One job is located in the city and the other is located at Southbank. Her places of work are Skytower Apartments and the Spice Hotel. Her stepfather is retired and is at home.(aa)During the period from October 2015 to October 2016, she was in Australia visiting for three months. She practised her English while she was here, including by talking to her stepfather. When queried whether she was missing classes in Yantai while she was in Australia, she stated that she did not miss much because it was consistent with/at the time of the Chinese New Year. When queried as to when the English school recommenced after the Chinese New Year, she said she could not remember because every school is different.(bb) The Tribunal queried whether there were any further deposits to the applicant’s bank account after 26 February 2016. She stated that her uncle sometimes, but rarely, transferred money to her, such as possibly the AUD300on 21 May 2016 as seen in her bank account statement.(cc) When queried as to a number of small deposits made to her bank account, she stated they were deposits of cash she made when she wanted to do online shopping.(dd) Since arriving in Australia in November 2016, her stepfather, and sometimes her mother, has been giving her AUD100 per week to cover any general/ extra expenses she might have.(ee) She has two bank accounts in Australia; a Suncorp bank account and an ANZ account. Her mother and stepfather both have Suncorp accounts so it is convenient for her to have a Suncorp account. Her mother deposits money to her account for food and other expenses such as her Gocard (transport), clothing, food, tuition fees etc. She also transfers money for the TAFE course she is hoping to do. (ff) She did not work at any time in Chian and did not work at any time in Australia. (gg) She finished her English course in approximately November 2017. She has been staying home practising and studying English since that time. She has not been doing anything other than that. She has been travelling around a few times. She has travelled to Sydney three or four times. She has travelled by herself. Her mother has provided the money or funds.(hh) She has not had any other source of money or funds, other than from her mother or stepfather since she arrived in Australia.(ii) She has not done any work of any nature since arriving in Australia. She has not done any paid work or any voluntary work or practice work or anything like that. She has not assisted anyone else with their work other than helping her mother a little bit when they have picked her mother up from work and her mother had not quite finished. On one or two occasions, she has helped her mother for a few minutes, maybe 10 or so minutes. She just helped her move some bags of dirty washing (sheets) out of a lift. This was at the Spice Hotel where she used to work. She has never helped her at the Skytower where she now works.(jj) When she arrived in Australia, she held a visitor visa. She is not allowed to work in Australia.