Kaewsawang (Migration)

[2022] AATA 105

Kaewsawang (Migration) [2022] AATA 105 (7 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kittituch Kaewsawang

REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)

CASE NUMBER:  2008224

HOME AFFAIRS REFERENCE(S):          CLF2019/11374

MEMBER:SM Justin Owen

DATE:7 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2022 at 4:47pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian permanent resident – substantial period – applicant employed – accommodation provided by the sponsor’s former partner – greater reliance upon the applicant’s own finances than upon the sponsor – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.216, 802.221, 802.226; rr 1.03, 1.05

CASES

Al Naqi v MIAC [2007] FMCA 874
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
Vo v Minister for Home Affairs [2019] FCAFC 108

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 April 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 24-year old Thai national that applied for the visa on 7 March 2019. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cls. 802.216 and 802.226A), the criteria to be met in this case include cl. 802.212.

4. The delegate refused to grant the visa on the basis that cl. 802.212 was not met because the delegate was not satisfied that the applicant had been wholly or substantially reliant on the sponsor, his mother Ms Pattanit Kammamoon, for financial support to meet his basic needs for food, clothing and shelter for a substantial period immediately before the time of application; and subsequently did not meet the definition of ‘dependent’ as per reg. 1.05A(1)(a).  The delegate also noted that the applicant had not provided any evidence of incapacity, and therefore did not meet reg. 1.05A(1)(b).  As the applicant did not meet the definition of dependent, as per reg. 1.05A, and subsequently did not meet the definition of ‘dependent child’ in reg. 1.03, the delegate found they were not satisfied the applicant met cl. 802.212.

5. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 videoconference.  The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.

6. The applicant attended the Canberra Registry and appeared before the Tribunal by videoconference on 21 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and sponsor Ms Pattanit Kammamoon. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the visa applicant is a dependent child of an Australian citizen; the holder of a permanent visa; or an eligible New Zealand citizen. 

   Dependent child criteria

10. The criterion in cl. 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl. 802.221(1) or (2)(a).

    Dependent child

11. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl. 802.212(1)(a). ‘Dependent child’ is defined in reg. 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

12. 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].

13. At the time of application, the applicant was 21 years of age.  He was sponsored by his mother, an Australian permanent resident.  The Tribunal has subsequently considered whether he meets the definition of a ‘dependent child’ as defined in reg. 1.03 of the Regulations for the purposes of cl. 802.212(1)(a). The definition of ‘dependent’ as it applies to this application is set out in reg. 1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their sponsor, if at the relevant time the applicant was wholly or substantially reliant on their sponsor for financial support to meet their basic needs for food, clothing and shelter; and their reliance on their sponsor was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their sponsor is due to the total or partial loss of their bodily or mental functions: reg. 1.05A(1).

14. There is no claim before the Tribunal that the applicant is wholly or substantially reliant on the sponsor for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions (reg 1.05A(1)(b)).  At the hearing the applicant responded in the negative as to whether he had any mental or physical incapacities that precluded him from working.  The sponsor concurred. He is currently in gainful employment and has been previously for a significant period, including during the period prior to lodging his application.  The applicant therefore does not meet the definition of dependent as per reg. 1.05A(1)(b) and the definition of ‘dependent child’ under reg. 1.03(b)(ii).  Accordingly, cl. 802.212(1)(b) is not met at the time of application, and does not continue to be met at the time of decision.

15. Accordingly, the applicant must meet reg. 1.05A(1)(a). 

16. The applicant has claimed to the Tribunal that he was dependent upon his mother, the sponsor, for financial support to meet his basic needs for food, clothing and shelter; and his reliance on his sponsor was greater than his reliance on any other person or source of support for a significant period of time, from well prior to his lodgement of a Child visa application in March 2019 up until the present day.  He has presented a wide array of his own as well as the sponsor’s bank statements outlining the support he received, as well as his own personal financial transactions and earnings, from May 2018 up until the present day.

17. Regulation 1.05A(1)(a)(i) requires that the applicant demonstrate that at the time the application was lodged, and for a ‘substantial period immediately before’ the application, they were dependent on their sponsor.  For the purposes of this application, reference to a ‘substantial period’ in reg. 1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg. 1.05A does not carry any implication of the notion of necessity or lack of choice reg. 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

18. The Tribunal is mindful that Departmental guidelines (PAM3) interpret a 'reasonable period' in this context as being three years, or a lesser period if otherwise satisfied that the applicant has received ongoing support from the Australian relative. However, the Department’s policy interprets ‘substantial period’ as being a period of ‘at least 12 months’. 

19. The Tribunal notes that this is one interpretation of the term ‘substantial period’ but also notes the decision of the Full Court in Huang v MIMIA [2007] FMCA 720 at [47] and its interpretation of a ‘substantial period’ of being not more substantial than a ‘reasonable period’.

20. The Tribunal notes the challenges in reconciling these different interpretations, including the finding in Huang v MIMIA that the term ‘substantial period’ in reg. 1.05A be read down to mean a period not more substantial than a ‘reasonable period’, which the Court noted need not be lengthy.

21. In light of the differing interpretations and contradictions in approach, and noting the approach in Huang, the Tribunal considers that in the present case, that 12 months prior to the application is a substantial period that is reasonable in the circumstances. 

22. The Tribunal subsequently has considered whether the applicant was dependent upon his mother, the sponsor, for financial support to meet his basic needs for food, clothing and shelter; and whether he was wholly or substantially reliant upon the sponsor for financial support more than any other person, or source of support, from the period 7 March 2018 until his lodgement of his Child visa application on 7 March 2019.  At the hearing the applicant confirmed that his weekly expenses were around $350 per week during the period March 2018 to March 2019.  The applicant had previously made this same assessment as part of his application to the Department. 

23. The Tribunal notes the applicant and the sponsor at the hearing both stated that the applicant was essentially wholly reliant and dependant on the sponsor for his basic needs for food, clothing and shelter for the period of 7 March 2018 to 7 March 2019.  The Tribunal notes however the evidence before the Tribunal of the substantial and regular income the applicant was receiving during the substantial period – being 12 months – prior to the lodgement by the applicant of his Child visa application. 

24. The applicant at the hearing stated that in February 2018 he commenced working for a Thai restaurant in Canberra, Kinn Thai.  He claims to have worked approximately 20 hours per week.  The applicant has provided the Tribunal with bank statements for the bulk of the 12-month period prior to the lodgement of his visa application.  The applicant’s Commonwealth Bank statements between May 2018 and 4 March 2019 suggest he received over $19,000 in salary from his employer, Kinn Thai restaurant.  He was paid on a fortnightly basis.  In oral testimony he confirmed he had commenced work at the restaurant in February 2018.  Whilst no bank statements for the period between March and late May 2018 were supplied to the Tribunal, the Tribunal notes the applicant stated at the hearing that, on average, he was paid between $400 and $450 per fortnight whilst employed by Kinn Thai during this period.  Based on the applicant’s own assessment, and his own bank statements, the Tribunal is satisfied the applicant conservatively received over $20,000 in after tax payments from his employer in the 12 months prior to lodging his Child visa application in March 2019.         

25. The applicant in response to the Tribunal’s questions claimed he utilised these funds from his employment during this period for cryptocurrency trading, whilst his basic needs for food, clothing and shelter were financed by the sponsor, who operates a massage parlour in Canberra.  No evidence was provided of such cryptocurrency trading to the Tribunal. 

26. The Tribunal notes that regular ‘cash deposits’ were also made to the applicant’s bank account during this period: up to $18,000 across the 12 months in amounts of between $10 and thousands of dollars.  The applicant explained to the Tribunal these payments were mainly from his own gaming accounts, with funds transferred out of the accounts into his bank account.  The Tribunal notes that in the delegate’s decision the applicant provided, claims had previously been made that some of these cash deposits were payments made by the sponsor to the applicant.  There is no satisfactory evidence before the Tribunal to demonstrate that that was the case, and the Tribunal notes the claim was not repeated in submissions to the Tribunal or at the Tribunal’s hearing.  The Tribunal is satisfied that these cash deposits were transfers by the applicant of monies out of his gamling accounts to his bank account as he has stated.    

27. The Tribunal notes that the applicant has therefore received well over $37,000 into his bank account between May 2018 and the time of lodging his visa application in March 2019 from both his employment and from his gaming accounts.  Despite such significant income, he claims that his basic needs for food, clothing and shelter were looked after by the sponsor.   

28. In relation to his basic need for shelter, at the hearing the applicant stated that during this period he had resided with his mother the sponsor and sister.  He stated that for the majority of the 12 months between March 2018 and March 2019 they had resided at the residence of his mother’s then partner.  He stated that his mother’s partner paid the rent for the property.  The applicant stated that he, his sister and the sponsor had moved into their own property in late 2018.  He stated the sponsor was responsible for paying the rent on their new residence from late 2018, a statement confirmed by the sponsor’s bank statements from this period and reflected in the sponsor’s own oral testimony.

29. Based on the evidence before it, the applicant was not directly reliant on the sponsor for shelter for the majority of the 12 months prior to the lodgement of his visa application in March 2019: shelter was being provided to him by his mother’s then partner.  The Tribunal acknowledges Al Naqi v MIAC,  where the Court commented that ‘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’.  There is however no evidence of a spousal relationship between the sponsor and her former partner before the Tribunal during this 12-month period.  The Tribunal notes the sponsor’s Form 40CH Sponsorship for a child to migrate to Australia signed in February 2019 the sponsor answered ‘No’ to the question as to whether they were currently in a partner (married or de facto) relationship.  The Tribunal is not prepared to accept in such circumstances that any accommodation purportedly provided by the sponsor’s former partner should be assessed as support provided by the sponsor.  The evidence suggests the applicant only became reliant upon his mother for shelter – with her paying the rent - in late 2018.  Whilst the Tribunal accepts the sponsor paid all the rent for the property where the applicant resided from late 2018 up until the lodgement of his visa application on 7 March 2019, meaning that the sponsor has certainly made a contribution to the applicant’s basic needs for shelter, the Tribunal does not consider this support for his shelter to be indicative of a substantial dependence on the sponsor for a substantial period prior to the lodgement of his Child visa application.  On all the evidence before it, the Tribunal is not satisfied that the applicant was either wholly or substantially dependent upon his mother the sponsor to meet his basic needs for shelter for a substantial period – which the Tribunal has interpreted as 12 months – prior to the lodgement of his visa application. 

30. In relation to his clothing, the applicant conceded at the hearing that he purchases some of his clothes.  He stated that his mother during the period had purchased him a winter jacket.  In the sponsor’s bank and credit card statements before the Tribunal, the sponsor claims a number of clothing purchases listed were purchases she was making for the applicant.  There are no receipts provided to the Tribunal for purchases to support such a claim, and the Tribunal does not accept that these multiple purchases at stores like Coles and other retail outlets were clothing purchases for the applicant.  Whilst the Tribunal accepts the applicant may have been provided with the occasional clothing gift from his mother, the Tribunal is not satisfied that the applicant was either wholly or substantially reliant on the sponsor for his clothing costs for a substantial period – that is 12 months – prior to the lodgement of his Child visa application in March 2019.  The Tribunal considers the applicant’s basic needs for clothing for a substantial period prior to the lodgement of the visa application were met by the applicant himself. 

31. Financial statements from the sponsor have been supplied for this same period where the applicant and sponsor have claimed that numerous payments to providers like Coles were for ‘general living expenses’, namely food for the applicant.  At the hearing the applicant claimed that the sponsor looked after food expenses, whilst conceding that he looked after his own costs for food on some occasions.  There is no satisfactory evidence before the Tribunal to support the claim that the sponsor’s expenses incurred at a range of grocery and food stores during this period were purchases for the applicant, and he was wholly or substantially reliant on the sponsor for these expenses.  As the applicant discussed, he was working in a restaurant for almost the entire 12-month period and was earning a significant regular salary.  The Tribunal considers the evidence suggests the applicant’s basic needs for food for a substantial period prior to the lodgement of his visa application were met by the applicant.  The Tribunal is not satisfied the applicant was either wholly or substantially reliant on the sponsor for his basic needs for food during this period.     

32. Whilst the Tribunal accepts that the sponsor did provide the applicant with some financial support in a substantial period prior to the lodgement of the applicant’s visa application: through the provision occasionally of food at their home, accommodation via paying all the rent in the months prior to the lodgement of the visa applicant, or the occasional piece of clothing, the Tribunal does not accept either that the applicant was wholly or substantially reliant upon the sponsor to meet his basic needs for food, clothing and shelter.

33. The Tribunal finds that the applicant was not at the time of application and for a substantial or ‘reasonable’ period of time immediately prior to that time, wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter: reg. 1.05A(1)(a)(i). 

34. The Tribunal notes that to meet the requirements for the grant of this visa, the applicant’s reliance on the sponsor must also be greater than his reliance on any other person, or source of income, to meet his basic needs for food clothing and shelter: reg 1.05A(a)(ii).

35. The Tribunal finds on the evidence above that the applicant’s reliance on the sponsor, his mother, was not greater than his reliance on any other person or source of support.  The Tribunal notes that defining dependence does not involve a numerical assessment, whereby at least half the support required by the dependent person is provided by the other person, nor does it involve a concept of predominance: Vo v Minister for Home Affairs [2019] FCAFC 108 at [15]–[16]. Nevertheless, the financial information and testimony that the applicant has provided in relation to his income, and his claimed dependency for a substantial period prior to the lodgement of his Child visa application is instructive. The Tribunal notes the applicant stated at the hearing that his living costs during that period amounted to about $350 per week. This same estimate was also provided in his written submissions to the delegate. The applicant’s own bank statements between May 2018 and the time of lodgement of his visa application in March 2019 however suggest he was paid after tax $19,157.75. Even divided across 52 weeks that amount is $368.41 per week, an amount that does not take into account his salary received between March and late May 2018. His own estimate at hearing was that he was earning in fact on average between $400 and $450 per week. This significantly exceeds his estimated total living costs during this period of $350 per week. Having taken into account the applicant and sponsor’s oral testimony and the substantial bank statements submitted, the Tribunal considers the evidence strongly indicates that the applicant had, for a substantial period of time prior to the lodgement of his application, a greater reliance upon his own finances or other sources of support rather than upon the sponsor. Even if the Tribunal were to accept his (and the sponsor’s) submission that all of his living costs – amounting to approximately $350 per week – were provided by the sponsor, his reliance on his own salary and income would still be greater than his reliance on the sponsor. The applicant therefore does not meet reg. 1.05A(1)(a)(ii).

1. The Tribunal furthermore notes that the ‘cash deposits’ made to the applicant’s account during this period were in fact, according to the applicant’s testimony, principally deposits being made by him from his various gaming accounts rather than financial contributions from the sponsor for his basic needs for food, clothing and shelter.  The Tribunal is not satisfied on the evidence before it that, for a substantial period prior to the lodgement of his application, the applicant’s reliance on the sponsor was greater than his reliance on his own income generated principally by his ongoing employment at the Kinn Thai restaurant. 

2. The Tribunal appreciates the sponsor’s disappointment with the requirements of the Regulations.  Evidence from more recent times such as 2021 suggests she makes occasional cash transfers to the applicant.  The sponsor on the evidence is currently paying the rental costs and cost of utilities for the home she shares with the applicant and her duaghter.   Evidence has been submitted to illustrate that the sponsor has made, and continues to make, a substantial contribution to the applicant’s expenses via her financing of the applicant’s significant and ongoing educational costs. The Tribunal accepts that the sponsor supported the applicant with his education costs during the 12 months leading up to his visa application, including a transfer of $2,000 for tuition fees on 6 August 2018.  Whilst education costs may be a substantial financial impost and contribution by the sponsor, they do not constitute funds and support for the applicant’s basic needs for food, clothing and shelter as demanded by the relevant Regulations. 

3. Having considered all the evidence, the Tribunal finds that the applicant’s reliance on the sponsor, for a ‘substantial period’ prior to the lodgement of his Child visa application, was not greater than his reliance on any other person or source of support: in his case, himself and his own income.  The Tribunal furthermore finds that the applicant was not at the time of application and for a substantial or ‘reasonable’ period of time immediately prior to that time, wholly or substantially reliant on his mother the sponsor for financial support to meet his basic needs for food, clothing and shelter: reg. 1.05A(1)(a)(i). 

4. Therefore the applicant does not meet the definition of dependent, as per reg. 1.05A, and subsequently does not meet the definition of ‘dependent child’ in reg. 1.03.

5. Accordingly, cl. 802.212(1)(a) is not met at the time of application.

6. For the reasons above, the criteria in cl. 802.212 are not met.

7. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

   Justin Owen
   Senior Member

   
   

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   1.03     Definitions

   …

   dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child’s bodily or mental functions.

   …

   step-child, in relation to a parent, means:

   (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

   (b)a person who is not the child of the parent but:

   (i)       who is the child of the parent’s former spouse or former de facto partner; and

   (ii)      who has not turned 18; and

   (iii)     in relation to whom the parent has:

   (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

   (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

   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.

   …