Huang (Migration)

[2020] AATA 5406

Huang (Migration) [2020] AATA 5406 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ju Xun Huang

VISA APPLICANTS:  Ms Yanping Huang
Mr Haopeng Rong

CASE NUMBER:  1906160

DIBP REFERENCE(S):  OSF2010/071810

MEMBER:Justin Owen

DATE:22 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 22 December 2020 at 2:48pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – member of family unit – second applicant adult son of first applicant – dependent child or near relative – dependant for substantial period before decision – son traumatised by father’s sudden death – depression and claimed incapacity for study or work – credibility – mother’s and son’s contradictory evidence on incapacity and finances – significant period of voluntary work and some study – little evidence of financial support or assessment and treatment of mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03(b)(ii), 1.05A(1), 1.12(1)(b), 1.15(1)(c), (2)(b)(i) Schedule 2, cls 115.211, 115.221, 115.321

CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

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 28 February 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 23 April 2010. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.115.321.

3. The delegate refused to grant the visas on the basis that cl.115.321 was not met because she was not satisfied the secondary applicant, Mr Haopeng Rong, was a ‘member of the family unit’ (as defined at Regulation 1.12) of the primary visa applicant, Ms Yanping Huang, at the time of decision. The delegate refused to grant the primary visa applicant Ms Yanping Huang the visa on the basis that cl.115.221 was not met because she found the primary visa applicant had a near relative – being the secondary applicant – who was not usually resident in Australia and not an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of decision.   

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The Tribunal notes that a s.376 certificate dated 19 March 2019 was placed by the delegate on the Tribunal file OSF2010/071810 certifying that disclosure of folios 160 to 183 would be contrary to the public interest because it contained information about the family member’s applications and movements. The Tribunal did not consider the information purportedly covered by the certificate relevant to the review and exercised its discretion to release the s.376 certificate and the folios purportedly covered by the certificate to the review applicant on 11 December 2020, prior to the Tribunal hearing. Whilst the Tribunal considered the certificate to be valid, the Tribunal did not consider the information – family movement records - relevant to the review.  The Tribunal considered these records were not relevant to the Tribunal’s consideration, which was whether the secondary applicant was a member of the family unit and dependent of the primary visa applicant at the time of decision; and whether the primary visa applicant had a ‘near relative’ who was not an Australian citizen, Australian permanent citizen or eligible New Zealand citizen at the time of decision.    

6. The review applicant appeared before the Tribunal by telephone on 16 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant, Ms Yangping Huang. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the primary visa applicant is the remaining relative of Mr Ju Xun Huang, who the primary visa applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).  The secondary applicant claimed to be ‘dependent’ upon the primary visa applicant and subsequently not a ‘member of the family unit’ of the primary visa applicant as defined at r.1.12 and a ‘near relative’ of the primary visa applicant. 

9. Regulation 1.15(1) requires that a visa applicant has no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

10. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

11. The issues before the Tribunal are, is the secondary applicant, who is the 31-year old son of the primary visa applicant living in PR China, a ‘dependent’ of the primary visa applicant at the time of decision and for a ‘substantial period’ previous to this time.  If the secondary applicant is found not to be a ‘dependent’ as defined at regulation 1.05A of the primary visa applicant, then he will not be considered a ‘member of the family unit’ of the primary visa applicant as defined at regulation 1.12.   If he is found not to be a ‘member of the family unit’ of the primary visa applicant, then he will not satisfy cl.115.321.

12. If the secondary applicant is not found to be a ‘dependent’ or a ‘dependent child’ of the primary applicant as defined at regulation 1.03, and instead found to be a ‘near relative’ of the primary visa applicant, the primary visa applicant will subsequently not meet reg.1.15(1)(c) that requires that at the time of decision, an applicant must continue to have no near relatives, other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

    REASONS

    Secondary applicant Mr Haopeng Rong  

    115.32 Criteria to be satisfied at time of decision

13. Clause 115.321 requires that the visa applicant continues to be a member of the family unit of a person who is the holder of a Subclass 115 visa.

14. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in Regulation 1.12, which reads (in part):

    Reg 1.12 Member of the family unit

    1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub regulation called the family head) if the person is:

    (a) a spouse or de facto partner of the family head; or

    (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    [(d) omitted by SR 2004, 390 with effect from 02/04/2005]

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i) does not have a spouse or de facto partner; and

    (ii) is usually resident in the family head's household; and

    (iii) is dependent on the family head.

15. ‘Dependent child’ is defined at Regulation 1.03 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.

16. The definition of ‘Dependent’ relevant to this application is found at is defined at Regulation 1.05A (1):

    1.05A (1) Subject to sub regulation (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.

17. The Tribunal accepts that there is a mother/son relationship between the primary visa applicant and the secondary applicant Mr Haopeng Rong. 

18. At the hearing the review applicant, who is the uncle of the secondary applicant and brother of the primary visa applicant, stated that the secondary applicant apart from his mother (the primary visa applicant) has family members in the nature of uncles and aunts from his late father’s side residing in PR China.  The Tribunal accepts that they would not meet the definition of members of the family unit under reg.1.12.

19. The review applicant stated that the secondary applicant is now 31 years of age with no spouse or de facto.  He stated that he lives with the primary visa applicant and has done so since June 2007. 

20. The review applicant stated that the secondary applicant had never worked.  He stated that the secondary applicant was traumatised in 2007 by the death of his father.  The review applicant in some detail addressed the matter of the death of the secondary applicant’s father.  He stated the secondary applicant’s father was a driving instructor and there were plans for the secondary applicant to succeed his father in the business when he was older. In June 2007 the secondary applicant’s father had a physical altercation with his uncle.  The secondary applicant’s father subsequently had a stroke or heart attack and died at the scene.  The review applicant stated that the secondary applicant, witnessing the death of his father, then changed overnight, becoming a recluse and being unable to sleep.  He stated the secondary applicant lost motivation and would not talk to his family.  The review applicant stated the secondary applicant tried to commence study in 2010 through hotel management but was still too traumatised to study and complete his courses.  The review applicant stated that the family had attempted to talk to the secondary applicant many times and told him to see a psychologist.  He claimed the stigma, particularly in PR China, of seeing a psychologist precluded the secondary applicant from doing so.  He claimed the advice the primary visa applicant had received from a psychologist was that he undertake some voluntary work and employment to keep him occupied. 

21. The Tribunal notes the Court records the review applicant supplied it pertaining to the death of the secondary applicant’s father in June 2007 of a heart attack after being attacked by another family member.  The review applicant stated that the secondary applicant witnessed the attack and subsequent accidental death of his father.  The Tribunal accepts the evidence that the secondary applicant’s father deceased on 28 June 2007 as outlined in the documents submitted by the review applicant from the People’s Court of Yuexiu District, Guangzhou City, Guangdong Province and dated 17 August 2008. 

22. The Tribunal noted the information contained in the delegate’s decision record the review applicant had previously supplied, that the secondary applicant had in fact declared he worked as a Manager between 2013 and 2017.  The review applicant responded that he had worked on a voluntary basis between 2013 and 2017 where he had received no salary.  The Tribunal notes the correspondence previously provided to the delegate making a similar pronouncement.  The Tribunal found it unusual that the secondary applicant would work for a significant period – four years – without payment.  The review applicant stated that the voluntary work was a form of treatment for the secondary applicant’s depression that had manifested after the death of his father.  The review applicant stated that the owner of the factory where the secondary applicant had worked as a volunteer between 2013 and 2017 could empathise with the secondary applicant as he had suffered similar loss. 

23. The review applicant stated that the secondary applicant was entirely reliant on the primary visa applicant, his mother, for financial support to meet his needs for food, clothing and shelter.  He stated that the documents he had supplied the Tribunal were evidence of this.  The review applicant said he provided no support to the secondary applicant and neither did any other family members or friends. 

24. The Tribunal enquired as to where the primary visa applicant received the finances to support the secondary applicant.  The review applicant stated that the primary visa applicant was retired from the workforce but received pension payments, had savings and had assets from her late husband.  The primary visa applicant concurred with this. 

25. The review applicant submitted a range of evidence concerning the secondary applicant’s studies.  The review applicant claims the secondary applicant has been a student since March 2019 studying a major in Business Management at the Broadcasting and TV University of Guangzhou City.  Certification documents were supplied.  The review applicant claims that the course is full-time and that the supplied invoices for the course were paid for by the primary visa applicant. 

26. Certificates of attainment from Yuan Pei Foreign Languages were also supplied to the Tribunal.  The review applicant stated that these were English language courses the secondary applicant successfully completed in the evening.  The review applicant stated these courses were paid for by the primary visa applicant and had been undertaken between 2013 and 2016 and 2018 and 2019. 

27. The Tribunal has considered the evidence submitted before it from the review applicant, the primary visa applicant and the various written documentation provided to both the Tribunal and the delegate previously.      

28. At the hearing the Tribunal, noting the ‘dependent’ definition can also be met under r.1.05A(1)(b) when 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’, asked both the review applicant and the primary visa applicant whether the secondary applicant had any mental, psychological or physical disabilities or impairments that preclude him from working.  Both the review applicant and visa applicant claimed this was the case. 

29. The review applicant stated that the secondary applicant had no incapacities due to any loss of physical functions or any physical disabilities.  He claimed however that the mental trauma the secondary applicant had faced as a result of the death of his father in 2007 had essentially incapacitated him and stopped him from being able to be in employment.  The primary visa applicant concurred with this and made similar claims in her own oral testimony.    

30. The Tribunal notes the claim that the secondary applicant is incapacitated for work due to total or partial loss of bodily or mental functions contradicts the delegate’s decision record the review applicant supplied the Tribunal.  In the decision record, the delegate notes that the secondary applicant ‘declared in response to the Dependency Questionnaire that he is not incapacitated for work due to total or partial loss of bodily or mental functions’.  The Tribunal has reviewed the Dependency Questionnaire (D1, Folio. 230) which was signed by the secondary applicant and confirms the information in the delegate’s decision. 

31. The Tribunal at the hearing enquired of the review applicant and primary visa applicant as to any corroborative evidence since 2007 to support the claims of the secondary applicant’s incapacitation for work due to his mental state.  No corroborative evidence was provided.  The review applicant said that the family had consulted a psychologist, but the secondary applicant had refused to see him, stating the secondary applicant was concerned how he would be perceived if receiving treatment.  The review applicant confirmed the secondary applicant was not receiving any professional treatment or assistance.  He claimed the primary visa applicant had enquired into how best to look after the secondary applicant. Post-hearing the review applicant provided two letters – Diagnostic Health Records from June 2018 - from a traditional Chinese medicine practitioner.  The document outlined some traditional Chinese medicine treatment being provided to the secondary applicant as the result of dizziness, sweats and palpitations.  Whilst the Tribunal accepts the secondary applicant may have visited a Chinese traditional medicine practitioner in 2018, it is not satisfied that this constitutes evidence of either the secondary applicant’s ongoing mental state, his incapacitation for work or of a diagnosis and treatment of his mental and psychological health.    

32. On the very limited evidence before it, the Tribunal does not accept the claims that the secondary applicant is dependent on the primary visa applicant due to the secondary applicant being incapacitated for work due to the total or partial loss of his bodily or mental functions.  The Tribunal appreciates there remains a degree of stigma in regard to mental illness in contemporary society and accepts this stigma may be more prominent in PR China.  Nevertheless, the Tribunal is not satisfied, on the evidence before it, that the secondary applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions.  Given the claim before the Tribunal is that the secondary applicant has been incapacitated for work  due to his mental health now for over 13 years, the Tribunal finds it simply unfathomable that the secondary applicant has not undergone any mental health assessment or treatment during this time.  The Tribunal finds it unfathomable that there is not a single piece of corroborative specialist medical evidence pertaining to the secondary applicant’s mental health before it.  There is no evidence of any diagnosis of any psychological illness or mental health condition.  There is no corroborative evidence of any treatment received or undertaken by the secondary applicant beyond two vague and non-specific letters from June 2018 from a traditional Chinese medicine practitioner which the Tribunal gives little weight.  This correspondence makes no mention of the secondary applicant’s alleged incapacity for work due to his psychological and mental health.  There is no satisfactory corroborative evidence before the Tribunal as to the secondary applicant’s psychological state and why he is incapacitated for work due to the total or partial loss of his mental functions. 

1. The Tribunal notes the claims and correspondence submitted pertaining to the secondary applicant working for four years as a manager on a voluntary basis at the Tixing Glass Craft Factory between 2013 and 2017.  There is no claim of any subsequent employment.  The Tribunal notes the documentation the applicant submitted from the Factory (D1, Folio. 207) makes mention of the voluntary work undertaken and the lack of any pay.  The Tribunal questions the veracity of the document, noting the review applicant’s testimony that the factory owner was already well known to the family.  The Tribunal is not satisfied the claims made in the document as to the voluntary work undertaken and the lack of any financial recompense are accurate and the Tribunal considers they have been specifically included for the purposes of this application.  The Tribunal found the review applicant’s testimony vague and evasive and, whilst accepting the secondary applicant may have worked at the factory, is not satisfied he was working there as an unpaid volunteer for four years and as part of treatment for his mental and psychological health. 

2. The Tribunal furthermore notes the evidence, as outlined in the delegate’s decision record, that the secondary applicant in the Dependency Questionnaire he filled out and provided to the Department, plainly stated that he was not incapacitated for work due to total or partial loss of his mental functions.  Such a claim is entirely contrary to the review applicant’s oral testimony at the Tribunal’s hearing that he has been incapacitated for work since 2007 due to his mental and psychological health.  The Tribunal is concerned by such a basic contradiction and considers such a claim by the review applicant – clearly contradicted by the secondary applicant’s own evidence as outlined in the decision record – speaks to the credibility of the review applicant’s evidence before the Tribunal. 

3. Finally, the Tribunal notes that the secondary applicant has been able, the review applicant claims, to successfully undertake a range of studies in language and business despite the psychological and mental health conditions over 13 years that have entirely precluded him, it is claimed, from seeking employment.  The Tribunal questioned the review applicant and primary visa applicant as to how he was able to undertake these courses whilst still psychologically traumatised and incapacitated from undertaking any employment. The review applicant stated that the secondary applicant had visited Australia twice where he saw his family and witnessed the environment.  The review applicant claims this gave the secondary applicant new energy and the purpose of his studies was to relieve stress.  The review applicant claims the advice for the secondary applicant to undertake studies came from a doctor.  The Tribunal notes again the lack of any satisfactory corroborative evidence as to either the secondary applicant’s mental health or the professional advice to undertake studies and gives the claim no positive weight.  The Tribunal finds the claims that the secondary applicant has been able to undertake academic studies for multiple years but is unable to undertake any paid employment since 2007 not plausible in the circumstances of this particular case.  The Tribunal accepts the death of the secondary applicant’s father and the circumstances of his death were stressful and unhappy events for the secondary applicant.  On the basis of the evidence and testimony before it, the Tribunal does not however accept that these events precipitated a situation where the secondary applicant’s mental and psychological health have incapacitated him for work due to the total or partial loss of his mental functions.                

4. On the evidence before it, the Tribunal is not satisfied that the secondary applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions and subsequently does not meet the definition of a ‘dependent child’ under  r.1.03(b)(ii).  The Tribunal further finds that the secondary applicant does not meet the requirements of sub regulation 1.05A(1)(b) within the definition of ‘dependent’ at regulation 1.05A. 

5. The Tribunal has also considered whether the secondary applicant meets the definition of a ‘dependent’ of the primary visa applicant under r.1.05A(1)(a).  To meet the definition of ‘dependent’ at regulation 1.05A, as per sub regulation 1.05A(1)(a)(i), the secondary applicant must demonstrate that, at time of decision, he is and has been for a substantial period immediately before that time, wholly or substantially reliant on his mother the primary visa applicant (or his mother’s spouse or de facto partner) for financial support to meet his basic needs for food, clothing and shelter. Under Departmental policy, a ‘substantial period’ is usually taken to be at least 12 months.

6. If found to be wholly or substantially financially reliant on his mother (or his mother’s spouse or de facto partner), he must also demonstrate that his reliance on these people is greater than his reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter (as per sub regulation 1.05A(1)(a)(ii)).

7. The Tribunal accepts the claim that the secondary applicant is not married and has no spouse or de facto partner at the time of application. 

8. The Tribunal notes the Dependency Questionnaire where, as outlined in the decision record the review applicant provided, the secondary applicant stated that the primary visa applicant pays for his basic needs for shelter, food and clothing while he is not working. The secondary applicant claimed he had been dependant on the primary visa applicant since 2007 and the death of his father.  The secondary applicant had stated that ‘no exact payments are given to me’ and stated he and the primary visa applicant ‘pay the basic needs of shelter, food and clothing together’. 

9. At the hearing, the review applicant stated that the secondary applicant remains living with the primary visa applicant and dependent upon her.  The review applicant stated that the secondary applicant receives no support from himself or any other family members. 

10. The Tribunal asked the review applicant what evidence was there of the support he claimed the primary visa applicant provided to the secondary applicant.  He referred to the documents that had been recently sent to the Tribunal. 

11. The Tribunal notes the evidence that has been provided of a bank transaction statement of the primary visa applicant for the period 1 January 2017 to 8 March 2017; and a bank transaction statement in the name of the secondary applicant for the same period illustrating the payment of around 50,000 Yuan (currently around AUD$10,000) from the primary visa applicant to the secondary applicant.  The Tribunal gives the evidence little positive weight.  The Tribunal notes that this transaction is more than three and a half years since the time of decision.  The transaction furthermore is not evidence that the secondary applicant is wholly or substantially reliant on the primary visa applicant for food, clothing and shelter nor is it evidence that these monies have been utilised by the secondary applicant for either food, clothing or shelter.  The review applicant and the primary visa applicant have each claimed at the Tribunal’s hearing that the primary visa applicant is providing all the financial support the secondary applicant requires for every element of his life.  The paucity of evidence before the Tribunal as to what that support is, how it is manifested and how the monies are spent by the secondary applicant leads the Tribunal to question the veracity of the claim. The Tribunal notes it already has doubts as to the credibility of the testimony of the review applicant in relation to his claims concerning the secondary applicant’s alleged incapacitation. 

12. The Tribunal notes the review applicant has also provided WeChat Transaction records that the review applicant claims are funds transfers from the primary visa applicant to the secondary applicant.  These three records are for 1,000 Yuan (about AUD$200) on 28 April 2018; 500 Yuan (about AUD$100) on 24 September 2019 and a further 500 Yuan (about AUD$100) also on 24 September 2019.   The Tribunal asked the review applicant if he had any other evidence of the primary visa applicant’s support of the secondary applicant.  He thought there might be a few other documents, but he stated it was too expensive to get them translated.  He did not provide any further insight into these alleged documents.  The primary visa applicant in her own oral testimony said she did not give the secondary applicant money on a ‘regular basis’.  She stated that she gave him money when he asked.  She said it was via transfer – as had been submitted to the Tribunal via the records that were sent in – and sometimes cash.  Given these claims and more generally, the Tribunal at the end of the hearing invited the review applicant to provide a statement from the secondary applicant post-hearing.  Whilst evidence was provided pertaining to the secondary applicant’s utilisation of herbal remedies for his wellbeing in June 2018, nothing further has been provided concerning any financial support.   

13. As the Tribunal explained at the hearing, to meet the definition of ‘dependent’ at regulation 1.05A, it must be demonstrated that at the time of decision, and for a substantial period immediately before that time, the secondary applicant was wholly or substantially reliant on his mother, the primary visa applicant, for financial support to meet his basic needs for food, clothing and shelter.  The Tribunal notes that there is no corroborative evidence of such support at the time of decision or in the 12 months previous.  The last corroborative evidence submitted are two payments for the equivalent of AUD$500 each in September 2019, some 15 months ago.  Prior to that, the only evidence is the AUD$200 payment over two and a half years ago (April 2018) and before that the large sum transferred in March 2017.  The Tribunal has considerable doubts, in the absence of any corroborative information, as to whether these monies were ever utilised by the secondary applicant for either food, clothing or shelter.  Even if it were to be the case, the Tribunal notes that none of the corroborative evidence of the secondary applicant’s whole or substantial reliance on the primary visa applicant for financial support to meet his basic needs for food, clothing or shelter is from the time of decision.   

14. The Tribunal notes the oral claims of the primary visa applicant that she provides some support in cash and she provides it on a needs basis when the secondary applicant asks.  The Tribunal also notes the secondary applicant’s Dependency Questionnaire claim, as outlined in the delegate’s decision record the review applicant supplied, that he and the primary visa applicant pay their basic needs for shelter, food and clothing together and no exact payments are provided to him.  Whilst the Tribunal accepts it may be plausible that some payments are provided to the secondary applicant in cash, the Tribunal nevertheless notes that there is no corroborative evidence whatsoever of any payments since September 2019 and nothing before the Tribunal in relation to how these monies are spent.  In the absence of such evidence, the Tribunal is not satisfied that the secondary applicant is wholly or substantially reliant on the primary visa applicant to meet his basic needs as per sub regulation 1.05A(1)(a). 

15. The Tribunal notes the claim the secondary applicant has not worked in any paid capacity since 2007.  The review applicant and primary visa applicant both stated at the hearing the secondary applicant had not held any paid job since 2007 and the untimely death of his father.  The review applicant submitted a ‘Certificate of Joining Social Security Insurance in Guangzhou City’ dated 4 December 2020 that states there is no record of the secondary applicant receiving a basic pension or receiving basic superannuation in the city of Guangzhou.  The review applicant stated that employers must pay money into a superannuation fund.  The Tribunal accepts PR China has a pension system where employers and workers make contributions to their future retirement incomes.  The Tribunal does not however accept that this document constitutes conclusive evidence that the secondary applicant is wholly or substantially reliant upon the primary visa applicant for food, clothing and shelter at the time of application and for a substantial period immediately before that time, or that his reliance on the primary visa applicant is not greater than any reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.   The Tribunal quite simply is not satisfied on the evidence before it that the secondary applicant, now aged 31 years of age, has not been since 2007 and is not currently engaged in gainful employment.  The Tribunal, noting the secondary applicant successfully undertook and completed night studies between 2013 and 2016 and then 2018 and 2019, and noting the absence of any corroborative medical evidence whatsoever pertaining to his claimed psychological health challenges that allegedly preclude him from working, does not accept that the secondary applicant is not now or has not been at least some time recently in paid employment.  As previously stated, the Tribunal has reservations in relation to the credibility of the evidence of the review applicant who claimed the secondary applicant was incapacitated for work despite the clear and unequivocal assurance by the secondary applicant in his Dependency Questionnaire that he was not in fact incapacitated for work. The Tribunal is not satisfied on the evidence before it that the secondary applicant has not been in any paid employment since 2007.  The Tribunal is not satisfied on the evidence before it that the secondary applicant is at the time of decision, and for a substantial period immediately before that time, wholly or substantially reliant on the primary visa applicant for financial support to meet their basic needs for food, clothing and shelter.  Furthermore, the Tribunal is not satisfied that the secondary applicant’s claimed reliance on his mother, the primary visa applicant, is greater than his reliance on any other person or source of income, for financial support to meet his basic needs for food, clothing and shelter.            

16. Evidence was provided by the review applicant in relation to the secondary applicant’s studies.  A Student Card and certification documents were provided stating that the secondary applicant had been enrolled in a Business Management course at the Broadcasting and TV University of Guangzhou City since March 2019 and the course was for two years.  Copies of an invoice dated 26 March 2019 for 4,260 Yuan for tuition and textbooks for the Spring 2019 term in the Diploma in Business Management course were also provided.  The Tribunal accepts that the secondary applicant has been enrolled in the Diploma course but does not accept that this enrolment is evidence of the secondary applicant’s dependence on the primary visa applicant for financial support for food, clothing and shelter.  The Tribunal notes that the applicant’s enrolment in his Business Management course does not constitute a basic need for either food, clothing or shelter.  The review applicant furthermore stated that the primary visa applicant has been responsible for paying the secondary applicant’s education costs though there is no evidence before the Tribunal to confirm this.  The Tribunal notes that the invoice for payment for his Diploma in Business Management course makes no mention of the primary visa applicant.  Similarly, the receipt dated 1 February 2018 for 1,500 Yuan for training fees for the secondary applicant’s English language course states the amount was received from the secondary applicant.  The Tribunal notes when raising this with the review applicant and the primary visa applicant, both claimed that the primary visa applicant had paid all these education costs.  In the absence of any corroborative information supporting such an assertion, the Tribunal does not accept these claims.  

17. The Tribunal has considered the evidence submitted by the review applicant as well as the oral testimony of the review applicant and the primary visa applicant.  The Tribunal, noting the secondary applicant did not appear as a witness, invited the review applicant to provide a statement from the secondary applicant post-hearing.  No statement was received by the time of decision.

18. The Tribunal is not satisfied that the secondary applicant has demonstrated that he has been financially dependent on the primary visa applicant to meet his basic needs for food, clothing and shelter at the time of decision or for a substantial period of time preceding this.  The secondary applicant does not meet r.1.05A(1)(a)(i).

19. The Tribunal is not satisfied that the secondary applicant has demonstrated that his reliance on the secondary applicant is greater than any reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.  The secondary applicant does not meet r.1.05A(1)(a)(ii). 

20. The Tribunal subsequently does not consider the secondary applicant meets the definition of ‘dependent’ at r.1.05A. 

21. The secondary applicant is 31 years of age at the time of decision.  As he is over 18 years of age and has been found by the Tribunal not to meet the definition of ‘dependent’ at r.1.05A, the secondary applicant does not meet the definition of ‘dependent child’ at r.1.03.  As the Tribunal finds the secondary applicant does not meet the requirements for a ‘dependent child’ at sub regulation 1.03(b), he subsequently does not meet r.1.12(1)(b) and the definition of a ‘member of the family unit’ in the circumstances of this review.  As the secondary applicant does not meet r.1.12(1)(b), the Tribunal is not satisfied that the secondary applicant is a ‘member of the family unit’ of the primary visa applicant at the time of decision. 

22. As the Tribunal is not satisfied that the secondary applicant is a ‘member of the family unit’ as defined in r.1.12 of the primary visa applicant at the time of decision, the secondary applicant subsequently does not meet cl.115.321 in Schedule 2 to the Regulations which requires that he continues to be a member of the family unit of a person who is the holder of a Subclass 115 visa holder. 

23. For the reasons set out above, the Tribunal is not satisfied that the secondary applicant is a member of the family unit of the primary visa applicant at the time of decision for the purposes of cl.115.321.  Therefore cl.115.321 is not met by the secondary applicant.

24. For the reasons above, the secondary applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the secondary applicant meets the prescribed criteria for the visa sought.

25. There is no evidence before the Tribunal that at the time of application the secondary applicant claimed to be a carer of an Australian relative, as required by cl.116.211, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123A(3)(c) of Schedule 1 to the Regulations. The secondary applicant is therefore not entitled to the grant of a Subclass 116 (Carer) visa.

26. The evidence before the Tribunal indicates that the secondary applicant was born on 6 November 1989.  The Tribunal finds that the secondary applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the secondary applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the secondary applicant meets the definition of the term ‘aged dependent relative’ in r.1.03 for cl.114.211 of Schedule 2 to the Regulations.

    Primary visa applicant Ms Yanping Huang

1. To be granted a Subclass 115 visa the primary visa applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.115.211 and cl.115.221.

2. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the visa applicant and is ‘usually resident in Australia’.

3. The visa applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the visa applicant is an adopted child.

   The requirement to be a parent or sibling: r.1.15(1)(a)

4. The Tribunal accepts the evidence before it that the Australian relative in this case is the brother of the primary visa applicant, r.1.15(1)(a) is met.

   Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

5. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

6. The Tribunal accepts on the evidence before it that the Australian relative, the review applicant, is usually resident in Australia.  He arrived in Australia in 1989.  He lives in Padstow with his wife, children and parents.  The Tribunal accepts the review applicant’s settled or usual abode is in Australia.      

7. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met. 

   No near relatives: r.1.15(1)(c)

8. Regulation 1.15(1)(c) requires that the primary visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

9. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

10. In her Form 47OF received by the Department on 19 May 2010, the primary visa applicant listed her family members.  She included her mother Ms Lin Xi (born 20 November 1937); her father Mr Huang Chaogen (born 5 June 1930); her brother and review applicant Mr Huang Ju Xun(born 28 November 1963); her other brother Mr Huang Juxiong (born 3 July 1968).  All were listed as residing in Australia.    The Tribunal accepts that the primary visa applicant’s mother, father and two brothers are all near relatives that are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. 

11. The primary visa applicant also listed the secondary applicant, her son Mr Rong Haopeng (born 6 November 1989), as a member of her family unit.  He was included in the primary visa applicant’s application as a migrating member of her family unit.  At the time of decision, he is 31 years of age and remains a resident and citizen of PR China. 

12. The question before the Tribunal was whether the primary visa applicant’s son, the secondary applicant, being over 18 years of age was a ‘dependent’ on the primary visa applicant at the time of decision.  As discussed earlier in this decision record, the Tribunal is not satisfied that the primary visa applicant’s son, the secondary applicant, is ‘dependent’ on the primary visa applicant. The Tribunal has found that the secondary applicant does not meet the definition of a ‘member of the family unit’ of the primary visa applicant as it is not satisfied that he is financially dependent on the primary visa applicant. 

13. As the Tribunal has found the secondary applicant is over 18 years of age and ‘not a dependent child’ of the primary visa applicant, he meets the requirements of r.1.15(2)(b)(i) in regard to being considered a ‘near relative’ of the primary visa applicant. 

14. Subsequently, as the primary visa applicant has a ‘near relative’ – her son, the secondary applicant – who is not usually resident in Australia, and not an Australian citizen, Australian permanent resident or eligible New Zealand citizen, she cannot therefore at the time of decision meet the definition of a ‘remaining relative’ as defined in r.1.15 and specifically r.1.15(1)(c).

15. As the primary visa applicant cannot meet r.1.15(1)(c), she is subsequently unable to satisfy cl.115.221 that requires at the time of decision she continues to satisfy r.115.211 which states she is a ‘remaining relative’ of an Australian relative.

16. The Tribunal therefore finds that at the time of decision the primary visa applicant does not meet cl.115.221 in Schedule 2 to the Regulations. 

17. For the reasons above, the primary visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the primary visa applicant meets the prescribed criteria for the visa sought.

18. There is no evidence before the Tribunal that at the time of application the primary visa applicant claimed to be a carer of an Australian relative, as required by cl.116.211, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123A(3)(c) of Schedule 1 to the Regulations. The primary visa applicant is therefore not entitled to the grant of a Subclass 116 (Carer) visa.

19. The evidence before the Tribunal indicates that the primary visa applicant was born on 24 February 1966.  The Tribunal finds that the primary visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the primary visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the primary visa applicant meets the definition of the term ‘aged dependent relative’ in r.1.03 for cl.114.211 of Schedule 2 to the Regulations.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Justin Owen
    Senior Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).