Guan (Migration)

[2018] AATA 2978

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 affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA, 375A, 376
Migration Regulations 1994, Schedule 2, rr 1.03, 1.05A, cls 445.211, 445.222

CASES
Al Naqi v MIAC [2007] FMCA 874
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 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

2. 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.

3. 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.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 June 2017.

5. 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, at which time the applicant again appeared before the Tribunal to give evidence and present arguments. On 18 May 2018, the Tribunal also received evidence in person from Ms Yu and again from Mr Parker. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The Tribunal had before it the file of the Department of Home Affairs (the Department) in relation to the applicant’s visa application and the Tribunal file.

7. At the conclusion of the 18 May 2018 hearing, the Tribunal allowed the applicant until 1 June 2018 to provide any further submissions or evidence upon which she sought to rely. On 1 June 2018, the Tribunal received a statutory declaration of the applicant dated 28 May 2018, which has been taken into account by the Tribunal.

8. The applicant was represented in relation to the review.

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

   ISSUES

10. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass – Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

11. Clause 445.211 relevantly provides that at the time the application is made, the applicant must be a dependent child of a visa-holding parent. At the time of decision, cl.445.222 requires the visa applicant to continue to be the dependent child of the visa-holding parent.

12. ‘Dependent child’ is defined in r.1.03 of the Regulations as follows:

    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.

13. ‘Dependent’ is defined in r.1.05A of the Regulations as follows:

    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.

14. 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].

15. Notably, ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’Al Naqi v MIAC [2007] FMCA 874.

16. Further, Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months.

17. 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

18. 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.

19. 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.

20. 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.

21. Ms Yu’s evidence to the Tribunal included as follows:

    (a)  In November 2016, and for the 12 months prior to that, the applicant was living in Yantai City with Ms Yu’s brother and sister-in-law. The applicant was studying English and preparing for an IELTS test at this time. She then came to Australia in November 2016.

    (b)  At this time, Ms Yu was paying for the applicant’s accommodation, food and expenses. When she went back to China, she would give her daughter money to cover those needs. On one occasion when she was home, she also gave cash to her brother and on another occasion to her sister-in-law. She gave RMB3,000 the first time and RMB2,000 the second time. She also transferred money to the applicant. She cannot remember if she gave the applicant cash. If she did, it was only a small amount. She transferred money to her daughter.

    (c)  To her knowledge, the applicant did not at any time work for money or for any income in China. When queried as to whether the applicant had ever advertised her services to work as an actor to earn money, she replied that the applicant did not.

    (d)  Since November 2017, the applicant has been studying at home. The applicant has not done any paid work in Australia. Sometimes she has done unpaid work, helping Ms Yu with her job. The applicant did not help Ms Yu at the Spice Hotel but has helped her at Skytower. That has only been two or three times for about 20 minutes. She helped her with bags of dirty laundry.

    (e)  The applicant has had no other source of support for accommodation, food and clothing while she has been in Australia other than from Ms Yu or from Mr Parker, Ms Yu’s husband.

1. At the second hearing, the Tribunal put information to the applicant, pursuant to s.359AA of the Act, that there was information from the Department that the sponsorship of the visa application had been withdrawn and that there was no sponsorship in force. In response, and after an adjournment granted to the applicant to consider the information, the applicant invited the Tribunal to contact Mr Parker by telephone to obtain evidence from him in relationship to the sponsorship. Mr Parker then gave evidence to the Tribunal that he had withdrawn his sponsorship but that he was considering reinstating the sponsorship. At the applicant’s request, the Tribunal adjourned the second hearing as the applicant stated that she had not previously been aware of that issue. The Tribunal agreed to the adjournment requested and the matter was relisted for hearing on 18 May 2018.

2. At the commencement of the third hearing, Mr Parker advised the Tribunal that he had reinstated his sponsorship of the applicant’s visa application.

3. Mr Parker’s further evidence to the Tribunal at the third hearing included:

   (a)  The applicant has been living in Australia since 2016. She had previously holidayed in Australia for about three months.

   (b)  Since arriving in Australia, the applicant has been studying and working. She studied English for about six months.

   (c)  The applicant first worked at South Brisbane and is now working at Skytower. She is working for the same employer but has moved to a different hotel.

   (d)  To start with, the applicant may have only worked two days per week, however, the applicant has worked at least five days per week for the past eight months. She works as a housekeeper from at least 9.00 am to 3.00 pm. She currently works as a supervisor. She does her own work but also checks on other people’s work. The applicant also at one stage was working in a kitchen making dumplings but that was not for much money.

   (e)  His wife, Ms Yu, also works in the same job. The applicant does not just work by helping her mother out. The applicant works as a supervisor at Skytower. She works full-time, at least 30 hours a week.

   (f)    He does not know how the applicant is paid but she is definitely paid. She has had about two weeks holidays in the time she has been working, which is consistent with the usual holidays of a full-time worker.

4. The Tribunal discussed with the applicant and her representative that the Department had issued s.375A and s.376 certificates in relation to certain information on the Department’s file, including one s.375A certificate and three s.376 certificates. The Tribunal provided the applicant and her representative with a copy of each of the certificates, advised that the Tribunal considered all certificates valid, and invited the applicant or her representative to make submissions on the validity of the certificates if they wished. No submissions were sought to be made in relation to the validity of the certificates, either at hearing, or in the time allowed after hearing for submissions or evidence in relation to any matter.

5. The Tribunal advised the applicant at hearing that in relation to the s.375A certificate, the Tribunal was prohibited from disclosing the information the subject of a s.375A certificate to the applicant but, in relation to any such information relevant to the issues before the Tribunal, the Tribunal would tell the applicant the gist or particulars of the information so that she could comment on or respond to the information if she wished.

6. The Tribunal advised the applicant at hearing that in relation to the s.376 certificates, the Tribunal had the discretion as to whether or not to release the information to which the certificate relates. In relation to any information relevant to the issues before the Tribunal, which is subject to a s.376 certificate, the Tribunal would exercise its discretion to advise the applicant of the information, so that the applicant could comment on or respond to the information if she wished.

7. The Tribunal therefore put the following information to the applicant, pursuant to s.359AA of the Act:

   (a)  Information provided to the Department that the applicant had been working continuously since she had arrived in Australia, working at least five days a week since April 2017, including at a restaurant, at Spice Apartments at South Brisbane and as a cleaning supervisor at Skytower.

   (b)  Mr Parker’s oral evidence at hearing, which was consistent with and almost identical to the information provided to the Department, indicated that since arriving in Australia in November 2016, the applicant had worked making dumplings at a restaurant, at Spice Apartments at Bouquet Street, South Brisbane and as a cleaning supervisor at Skytower for about the last eight months, five days per week, for at least six hours per day, except for two weeks holiday.

8. The applicant confirmed that she understood the information stated by the Tribunal. The Tribunal then discussed with the applicant why the two lots of information were relevant to the issues before the Tribunal. The Tribunal stated that If it accepted that information, it means that the Tribunal would not be able to reach a conclusion that the applicant is wholly or substantially dependent on her mother at the time of decision to meet her needs of food, shelter and clothing given that if she is working for a significant numbers of hours, and therefore making a significant income, she would first be reliant on the income she makes to meet these needs, before she would be reliant upon anyone else. The Tribunal stated if it was therefore not satisfied that the applicant is now dependent upon her mother, the visa would have to be refused. The Tribunal indicated that the second reason that the information is relevant is that it may cause the Tribunal to question the applicant’s credibility, to question her evidence to the Tribunal, and what reliance the Tribunal can put on her evidence. These concerns might extend to any of the applicant’s evidence to the Tribunal because the information is directly inconsistent or different to the applicant’s evidence that she has not worked since arriving in Australia in November 2016 except for 10 or so minutes when she helped her mother on one or two occasions. The Tribunal noted that this information is also inconsistent with the applicant’s mother’s evidence that the applicant has not worked except on two or three occasions when she worked for 20 or so minutes helping her. The applicant confirmed that she understood why the information was relevant to the issues before the Tribunal.

9. When queried as to whether she wished to comment on or respond to the information, the applicant said that she did not wish to comment or respond. She said that as she has a little working experience it shows that she has the ability to work and she won’t be a burden on the family or the country. The Tribunal therefore asked the applicant if that means she has been working since she arrived in Australia, contrary to what she had earlier told the Tribunal. The applicant responded that she just helped her mother. The Tribunal noted that the information raised with the applicant suggests that she has been doing work herself independently of her mother, and had actually been working as a supervisor of other people, and put to the applicant that that is more than just helping her mother. The Tribunal stated that is very different to the applicant just helping her mother one or two times. The Tribunal asked the applicant if she wished to comment or respond further. The applicant responded ‘no’.

10. The Tribunal also put the following information to the applicant, pursuant to s.359AA of the Act:

    (a)  Information that when the applicant was in China, she was either working as, or advertising her services as, an actress for paid work, on the basis that her name appeared on a website in China offering her services as an actress with a negotiable salary. The Tribunal indicated that that information suggests that the applicant may have been looking for paid work in China. The Tribunal indicated that the reason why that information is relevant is that, firstly, it is information that is contrary to the applicant’s evidence that she had not done that in China, which could cause the Tribunal to question the applicant’s credibility or what weight or reliance it could place upon her evidence, either about that particular issue or her evidence generally. Secondly, that information is of relevance because it might cause the Tribunal to question whether the applicant did in fact work and have a source of income in China, which might by itself, or together with other evidence, contribute to a conclusion that the applicant was not dependent upon her mother at the time of the visa application as required for grant of the visa. If the Tribunal reached that conclusion, it would have to affirm the decision to refuse to grant the visa on the basis that it was not satisfied that the criteria had been met at the time of the visa application.

11. The applicant confirmed that she understood the information and the relevance of the information to the issues before the Tribunal. When queried as to whether she wished to comment on or respond to the information, the applicant sought additional time to respond. The Tribunal agreed to an adjournment of the hearing. Upon resumption of the hearing, upon request, the Tribunal allowed until 1 June 2018 for the applicant to provide further submissions and evidence to the Tribunal if she wished. The Tribunal advised that such further submissions and evidence, if any, could be in relation to the s.375A and s.376 certificates (including their validity), in relation to the matters put to the applicant pursuant to s.359AA or in relation to any other matters.

12. On 1 June 2018, the Tribunal received a statutory declaration of the applicant dated 28 May 2018, which has also been taken into account by the Tribunal. That statutory declaration states as follows:

    1.I am the review applicant with the AAT Case No: 1712179.

    2.I prepare this statutory declaration to comment on some conflicting information provided to the immigration department.

    3.I deny the allegations that I was working as an actress while I was studying in Beijing Institute of Performing Arts School.

    4.I was a full time student majoring in Acting while I was at Beijing Institute of Performing Arts School from September 2012 to October 2015, when I suspended my study in that school.

    5.I have never done any paid acting or other work in China.

    6.While I was studying in Beijing, I participated in an acting training program organised by the school as part of our study. I also attended some job interviews but I have never been offered a paid position.

    7.I helped some of my friends to post their advertisements in a social media called “WeChat” to solicit work for them on 04/12/2015.

    8.As to the allegations that I have worked since my arrival at Australia, I say that since May 2017, I have helped my mum to do the house keeping in the Spice Apartment and the Sky Tower in Brisbane when I was not studying. In late April and early May 2017, I was asked by my friend to help her to make dumplings in the Dumpling Kingdom restaurant in Winter Garden, Brisbane.

    9.I am sorry that I did not tell the whole truth during the hearing.

    10.In answer to the oral evidence given my stepfather during the hearing, I say that I did not work as a supervisor neither in the Spice Apartment nor in the Sky Tower.

    11.My stepfather was very nice to me at the beginning but a few weeks after my arrival, he discovered that I was very close to my mum. He was very jealous.

    12.He did not tell me that he was not happy with my intimate relationship with my mum. He did talk to my mum about this.

    13.Later, I found out that he considered me as a burden to the family. So he wanted me to move out of their house.

    14.In order to allow me to continue to live in the house, my mum agreed to pay almost all of our living cost, including rent, water bill and internet and food.

    15.As a result, my mum had to work harder. Sometimes, she worked seven days a week.

    16.On 28/06/2017, my mum’s middle finger and ring finger were fractured while she was working.

    17.In order to support the family financially, she returned to work only after four days’ rest.

    18.I knew my mum had done whatever she could to support me and give me a good environment to complete my tertiary education.

    19.It is very hard for me to stand by and do nothing. I wanted to help out and relieve her burden.

    Was the applicant a dependent child of a visa-holding parent at the time of the visa-application and does the applicant continue to be a dependent child of a visa-holding parent at the time of decision?

13. The Tribunal discussed at length with the applicant at the first hearing that the requirement that she was a dependent child of a visa-holding parent, her mother in this case, at the time of the visa application is only one of the criteria required to be satisfied for the visa to be granted. The Tribunal also discussed with the applicant that there are other criteria that must be satisfied for the visa to be granted, including that the applicant is required to continue to be a dependent child of a visa-holding parent, her mother in this case, now at the time of decision. The Tribunal discussed with the applicant that while the delegate had refused the visa on the basis that they were not satisfied that she was the dependent child of her mother at the time of the visa application, the Tribunal was not confined to just considering that issue and if the Tribunal was not satisfied that she continues to be the dependent child of her mother now, the decision to refuse to grant the visa could be affirmed on that basis. The Tribunal also again, at the third hearing, discussed these matters with the applicant.

14. Further, at the second hearing, the Tribunal discussed with the applicant another criteria required to be satisfied, which is that the applicant needs to continue to be sponsored in relation to the visa application. However, given Mr Parker’s evidence at the third hearing, that matter was not in issue before the Tribunal.

15. As already noted, the Tribunal allowed the applicant until 1 June 2018 to provide further evidence or submissions and has taken into account the statutory declaration dated 28 May 2018 provided to the Tribunal by the applicant and the statements therein. Notably, the applicant states in the statutory declaration that she did not tell the whole truth at hearing. Further, she does not deny the evidence of Mr Parker to the Tribunal that she has been undertaking paid work at least 30 hours per week for at least the past eight months, and for about two days per week prior to arriving in Australia, which evidence of Mr Parker the Tribunal accepts. The Tribunal accepts that Ms Yu and/or Mr Parker may have been paying some of the applicant’s living costs since arriving in Australia. However, based upon the evidence before it, the Tribunal is satisfied and finds that the applicant has been employed for approximately 30 hours per week in Australia for at least eight months and for approximately two days per week prior to that time (since her arrival in Australia). It follows that the Tribunal concludes that the applicant has had significant means to support herself since that time from her income for employment. The Tribunal therefore finds that the applicant’s reliance on her mother and/or stepfather now, and in the preceding 12 months, has not been greater than her reliance upon herself to meet her basic needs of food, shelter and clothing. She therefore does not meet r.1.05A(1)(a) at the time of decision.

16. There is no evidence before the Tribunal that the applicant is incapacitated for work due to total or partial loss of her bodily or mental functions. To the contrary, the evidence is that she is more than capable of full-time work. She does not meet r.1.05A(1)(b).

17. If follows that at the time of decision, the applicant does not meet the definition of ‘dependent’ in r.1.05A and is therefore not a ‘dependent child’, in accordance with r.1.03. She therefore does not continue to be the dependent child of a visa-holding parent and therefore does not meet cl.445.222. The applicant therefore does not meet an essential criterion for grant of the Subclass 445 visa and it is therefore not necessary to consider any other issues.

18. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 445 visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Extended Eligibility (Temporary) (Class TK) visa.

    Susan Trotter
    Member