KANG (Migration)

[2018] AATA 3673

KANG (Migration) [2018] AATA 3673 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms QI KANG

VISA APPLICANT:  Mr MAN CHUNG LEUNG

CASE NUMBER:  1613999

HOME AFFAIRS REFERENCE(S):           OSF2015/040810

MEMBER:Kira Raif

DATE:1 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211of Schedule 2 to the Regulations

Statement made on 01 August 2018 at 1:37pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Dependent child of mother – Financial support – Money transfers below poverty line – Provided money during visits – Father’s low income – Greater reliance on visa applicant’s mother – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 August 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of China, born in December 1996. He applied for the visa on 29 June 2015. The delegate refused to grant the visa on the basis that cl.101.221 was not met because the delegate was not satisfied the visa applicant was a dependent child of his mother. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211 and cl. 101.221.

6. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

7. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations. 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.

8. 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].

   Dependent child criteria

9. There is no evidence to indicate that the visa applicant is incapacitated for work due to the total or partial loss or bodily or mental functions. The visa applicant was born in 1996 and was over the age of 18 at the time the application was made.

10. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was sponsored in his application by Ms Kang, who is his biological mother. The delegate noted that the visa applicant has been living separately from his mother since 2010.

11. The primary decision record indicates that the visa applicant was a student at Buddhist Tai Hung College. When his parents divorced in January 2010, the custody of the child was given to the visa applicant’s father and the visa applicant claimed to have been living with his father from 2008. The visa applicant claimed that his parents reached an agreement that his mother would pay for his living expenses as his father had financial difficulties and this arrangement started in January 2014, however the delegate noted that the visa applicant’s mother did not include him in her Partner visa application as a dependent child. The delegate noted that the visa applicant presented with the application evidence of money transfers of approximately $3820 since June 2014, which is an amount below the poverty line, and the delegate was not satisfied that the visa applicant was not receiving support from other sources. The delegate also noted there was no evidence that the father’s rent was paid by the sponsor while the child continued to reside with his father. While the delegate accepted that the mother provided financial support to the visa applicant, the delegate was not satisfied the visa applicant was wholly or substantially reliant on his mother for financial support for basic needs.

12. The applicant provided to the Tribunal a number of statutory declarations, stating that his mother has been providing financial support to him during his residence in Hong Kong and after he moved to New Zealand. The applicant provided various financial records to confirm the transfers. The applicant’s mother explained in her declaration that she did not include the applicant in her own visa application because the custody of the applicant was given to the father on the condition that the child would not leave the country before the age of 18 and also because they thought it would be best for the applicant to complete schooling in Hong Kong. The applicant’s mother also indicates in her declaration that she regularly sent money to her sister to be passed to the visa applicant and she always reimbursed the sister for the applicant’s expenses.

13. In oral evidence, the review applicant told the Tribunal that when she travelled to Australia in 2012, she left her savings of about AUD8000 with her sister and asked her sister to look after her son. After she came to Australia, her then husband provided financial support to her and her son. The review applicant said that her ex-husband, the visa applicant’s father, had no money and owed a lot of money to the bank so she sold her property to help him financially and also to look after her son. They agreed that the child would stay with the father to complete his studies in Hong Kong but she would support him financially. The review applicant said her sister gave her son HKD2000 a month and since she came to Australia, she also regularly sent money to her son. The review applicant’s evidence is that she had sent close to HKD30,000 to her son through the banks and also gave him AUD4000 cash when he came to Australia. She gave him about HKD10,000 when she visited Hong Kong in 2016. The review applicant confirmed there was no documentary evidence of these cash gifts and no bank statements to confirm withdrawals or deposits of these funds.

14. The Tribunal considers some of the review applicant’s and the visa applicant’s evidence problematic. For example, while there is evidence before the Tribunal of the monetary transfers between the review applicant and the visa applicant, there is little evidence about the father’s financial situation and capacity to provide financial support to the child. The review applicant provided to the Tribunal a statutory declaration from the visa applicant’s father but he was unavailable to give oral evidence to the Tribunal and the Tribunal was unable to test that evidence. There is also little paperwork concerning the father’s financial affairs at the time the application was made. The Tribunal also notes that there is no probative documentary evidence concerning some of the transfers to which the parties refer.

15. Despite these concerns, the Tribunal acknowledges that the review applicant and the visa applicant gave consistent evidence about the financial arrangements and there is before the Tribunal evidence of bank transfers.

16. The delegate formed the view that the money sent by the review applicant to her son was below the poverty line level in Hong Kong and formed the view that the visa applicant must have had other income. However, that is not sufficient to establish that the visa applicant had income from other sources. The review applicant’s evidence to the Tribunal is that she left a substantial amount of money with her sister before she travelled to Australia and that money was used to meet the visa applicant’s expenses. She also gave cash to her son on several occasions. The review applicant told the Tribunal her ex-husband lived in a public housing property in Hong Kong with minimal rent and the visa applicant told the Tribunal he contributed to the payments of the rent and mostly ate outside of home.

17. While the Tribunal considers the presented documentary evidence inadequate in some respects, the Tribunal accepts the parties’ oral evidence. The Tribunal accepts that before her departure from Hong Kong, the review applicant left about $8000 of her savings with her sister and that the sister regularly gave money to the visa applicant for his daily expenses. The Tribunal accepts that since arriving in Australia, the review applicant has been sending money to her son through the bank and the Tribunal also accepts that she gave money to the visa applicant when he visited Australia and when she visited Hong Kong. The Tribunal is prepared to accept that the father’s income was lower than the review applicant’s and that the child relied on the funds from the review applicant for his daily expenses, including food and clothing. The Tribunal also accepts that he contributed to the payment of rent. The Tribunal accepts that the visa applicant’s reliance on his mother was greater than his reliance on his father for basic needs.

18. Overall, The Tribunal is satisfied that at the time of the application the visa applicant was, and had been for a substantial period immediately before that time, wholly or substantially reliant on his mother for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is satisfied that the visa applicant’s reliance on his mother was, and continues to be, 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 is satisfied that the visa applicant is a dependent child of the sponsor, who is an Australian citizen. The visa applicant has not turned 25. The Tribunal finds that the visa applicant meets cl. 101.211 and that he continues to meet the dependency requirement at the time of this decision.

19. The Tribunal discussed with the review applicant the issue of her son’s study. The review applicant’s evidence is that after completing high school, the visa applicant undertook English study and a Foundation course in New Zealand and is now enrolled in a university. The review applicant claims all study was undertaken on a full-time basis. The Tribunal acknowledges that evidence but since the requirements of cl. 101.213 had not been considered by the delegate, the Tribunal makes no findings on the issue. 

    Conclusion

20. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

21. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member