Larkins (Migration)

[2021] AATA 1170

Larkins (Migration) [2021] AATA 1170 (15 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Wanna Li Larkins

VISA APPLICANTS:  Miss Qianru Li
Mr Zhaohui Li

CASE NUMBER:  1918004

DIBP REFERENCE(S):  OSF2010/072196

MEMBER:Justin Owen

DATE:15 February 2021

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 15 February 2021 at 1:50pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –115(Remaining Relative visa)– secondary applicant is over 18 years of age – not meeting the definition of ‘dependent’ at r.1.05A – secondary applicant is not a ‘member of the family unit’ of the primary visa applicant at the time of decision – visa applicant has a ‘near relative’–decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 376

Migration Regulations 1994, rr 1.03, 1.12, 1.15, Schedule 1, Schedule 2, cls 115.211, 115.221, 115.321

CASES
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 13 May 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 22 June 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, Miss Qianru Li, was a ‘member of the family unit’ (as defined at Regulation 1.12) of the primary visa applicant, Mr Zhaohui Li, at the time of decision. The delegate refused to grant the primary visa applicant Mr Zhaohui Li, 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 review applicant Mrs Wanna Li Larkins appeared before the Tribunal on 20 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sister of both the review applicant and the primary visa applicant Ms Wan Hong Li.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. At the hearing the Tribunal noted that a s.376 certificate dated 12 July 2019 was placed by the delegate on the Tribunal file OSF2010/072196 certifying that disclosure of folios 69 and 70 would be contrary to the public interest because it may disclose, or enable a person to ascertain, the existence or identity of, a confidential source of information and disclose lawful methods for preventing, detecting or investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. At the hearing the Tribunal noted that it 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. 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 noted that it would be giving the folios no adverse weight in its deliberations.  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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the primary visa applicant is the remaining relative of Mrs Wanna Li Larkins, 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.

8. In this case Mrs Wanna Li Larkins is the primary visa applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes.  Mrs Li Larkins is the ‘review applicant’ in this review. 

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 26-year old daughter 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 she is found not to be a ‘member of the family unit’ of the primary visa applicant, then she 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 Ms Qianru Li  

    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 father/daughter relationship between the primary visa applicant and the secondary applicant Ms Qianru Li. 

18. At the hearing the review applicant stated that the primary visa applicant (her brother) and the secondary applicant (her niece) did not have any other family members in PR China.  The review applicant stated that the rest of the family resided in Australia.  She said that the primary visa applicant and the secondary applicant were living together.

19. The review applicant stated that the primary visa applicant works as a planner and operates his own successful business.  She stated the secondary applicant was not working, despite having studied how to be a travel guide and completed her university studies.  The review applicant stated the secondary applicant had finished studies at university in mid-2016 but had failed to obtain the licence that would allow her to work as a travel guide. The review applicant stated that the secondary applicant despite this had not taken up her father’s offer to come to the office and learn about working.  The review applicant stated that the secondary applicant had instead travelled offshore, funded by her father the primary visa applicant, before starting courses to learn how to speak English in 2018.  The review applicant stated that the secondary applicant, who is now 26-years of age, had refused to work and was living off her father.  The review applicant stated that work for young people was not easy to find. She stated that the secondary applicant however was also not interested in working in PR China. 

20. The review applicant stated that the secondary applicant is not married, nor does she have a de facto or other partner.  The review applicant explained that the secondary applicant was wanting to come to Australia and intimated, because of this fact, the review applicant had not entered into any relationships. 

21. The review applicant stated that the secondary applicant is not receiving any financial assistance or allowance from government or any other organisation.  The Tribunal asked the review applicant if the secondary applicant received any income from any other source.  The review applicant stated that the secondary applicant’s mother might provide her financial assistance but generally it was only the primary visa applicant providing such support.  The review applicant later in the hearing said the secondary applicant’s mother provided her with no support.  The review applicant claimed that the primary visa applicant had been provided with sole custody for the secondary applicant after the divorce and there was no shared parenting.  The Tribunal notes the certification of a Divorce Certificate dated 21 November 2000 to this effect (D1, Folio. 36)   The review applicant stated that nevertheless the secondary applicant did maintain contact with her mother.

22. The review applicant’s sister Ms Wan Hong Li provided the Tribunal hearing with testimony that was consistent with the review applicant’s own oral evidence.    

23. The Tribunal notes that in the Dependency Questionnaire the secondary applicant submitted to the delegate, she stated that she was provided RMB 2,000 each month for living expenses for food, clothing and shelter.  She stated that she hadn’t been able to find a suitable job and the primary visa applicant had financially supported her continuously. 

24. The Tribunal noted that in the secondary applicant’s Dependency Questionnaire – as stated in the decision record the review applicant provided – that the secondary applicant was not incapacitated for work due to the total or partial loss of her bodily or mental functions.  The Tribunal raised the matter with the review applicant.  No evidence was submitted to suggest any change to this situation. 

25. The Tribunal discussed the financial support purportedly provided by the primary visa applicant to the secondary applicant for food, clothing and shelter.  The Tribunal noted from the decision record that between January and June 2018 the primary visa applicant transferred a total amount of 4,000 yuan to the secondary applicant.  The secondary applicant claimed in her Form 47A that the primary visa applicant had provided 500 yuan per week for her basic needs since December 1994 but no corroborating evidence was supplied to the delegate to confirm this claim. 

26. On 6 July 2019 the review applicant wrote to the Tribunal agreeing that 4,000 yuan over six months on some bank statements would not meet the delegate’s definition of continued financial dependency.  The review applicant supplied WeChat records that she stated illustrated an additional 16,000 yuan provided by the primary visa applicant to the secondary applicant during 2018-2019 calendar year.  She stated that there were also multiple cash contributions made by the primary visa applicant to the secondary applicant that were not recorded but part of the everyday aspects of life living under the same roof. 

27. At the hearing the Tribunal noted the evidence the review applicant had provided as part of the review process and pointed out to the review applicant the time of decision criteria.  The Tribunal noted that no evidence of the secondary applicant’s financial dependence on the primary visa applicant for food, clothing and shelter had been submitted to the Tribunal for this period.  The Tribunal noted that there was no evidence of funds beyond the 2018-2019 calendar year.  The Tribunal notes that it is required to be satisfied of funds at the time of decision and for a ‘substantial period’ prior: a period which Departmental policy states is usually taken to be at least 12 months.  The Tribunal invited the review applicant subsequently to submit any such evidence post-hearing.  The Tribunal noted at the hearing that neither the primary visa applicant nor secondary applicant had taken the opportunity to appear before the Tribunal hearing as witnesses.  The Tribunal considered the evidence submitted pertaining to the time of decision criteria to be very scarce and unable to satisfy it of the secondary applicant’s dependence on the primary review applicant.  The Tribunal invited the review applicant therefore to provide any written statements from the two parties pertaining to the matter under review which included the secondary applicant’s claimed wholly or substantial reliance on the primary visa applicant for financial support to meet their basic needs for food, clothing and shelter.        

28. On 28 January 2021 the review applicant provided additional documents, including personal statements from the primary visa applicant and the secondary applicant.  Both statements were brief with the primary visa applicant stating that he lived with the secondary applicant and paid all her school and living expenses.  He stated he was single; desired to reunite with his sister the review applicant and his family; and talked about the length of the case which hoes back to 2009. The secondary applicant stated that since graduating in 2016 she had not found a job and was still looking for one.  She claims to still be reliant and financially dependent on the primary visa applicant for all her living expenses and claims they are looked after by him in full.  She states that after being informed by the primary visa applicant a decade ago that she could live in Australia with her family that she paid close attention to her English classes and paid for additional tuition classes.  She claims to be living with the primary visa applicant who teaches her design and technology to broaden her skill set.  She expressed a desire to reunite with her family in Australia. The Tribunal has considered the statements and considers them to provide little insight into the secondary applicant’s claimed dependence on the primary visa applicant.  The Tribunal considers the statements to be lacking in any detail concerning the claimed dependence of the secondary applicant on the primary visa applicant beyond generalities.  Given the secondary applicant has claimed essentially total dependence on the primary visa applicant for the entire period since her visa application was lodged over a decade ago, the Tribunal finds the evidence submitted both vague and lacking in specificity. 

29. The Tribunal notes a number of untranslated financial statements were included with the statements on 28 January 2021 by the review applicant that the review applicant identified as payments made by the primary visa applicant to the secondary applicant for 500 yuan; 2,000 yuan; 3,000 yuan; 1,000 yuan; and 1,000 yuan via bank transfer.  Copies of what have been identified by the review applicant as WeChat transfers from the primary visa applicant to the secondary applicant were also provided of 1,500 yuan on 24 January 2021; 860 yuan on 14 December 2020; 1,000 yuan on 19 October 2019; and 2,000 yuan on 29 September 2019.  The Tribunal notes an English translation was not provided with the statements.  The Tribunal notes the primary review applicant was on notice through the Tribunal’s pre-hearing procedures that documents provided should be accompanied by an English translation both at the acknowledgement of receipt of the review application, and subsequently in the invitation to appear at the Tribunal hearing.  Nevertheless, for the purposes of this review, the Tribunal accepts the claim that these nine payments were made from the primary visa applicant to the secondary applicant during the 2019-2021 period.   

30. The Tribunal has considered the evidence submitted before it from the review applicant, the review applicant’s sister and the various written documentation provided to both the Tribunal and the delegate previously, including the post-Tribunal hearing submissions and statements from the primary visa applicant and the secondary applicant. 

1. The Tribunal has 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, she is and has been for a substantial period immediately before that time, wholly or substantially reliant on her father, the primary visa applicant (or her father’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: the Tribunal notes that Departmental policy is not binding on the Tribunal. The Tribunal has nevertheless had regard to Departmental policy in considering ‘ a substantial period’ whilst also considering the individual circumstances of the case under review including the secondary applicant’s claim that she has been wholly reliant on the primary visa applicant for her whole life and has never entered the workforce. The Tribunal has considered in such circumstances that a ‘substantial period’ is at least a 12- month period.

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

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

4. The Tribunal notes the Dependency Questionnaire dated 7 March 2019 where, as outlined in the decision record the review applicant provided, the secondary applicant stated that the primary visa applicant pays for her basic needs for shelter, food and clothing. The secondary applicant claimed she had been dependant on the primary visa applicant since she was born.  The secondary applicant in the Questionnaire claims the primary visa applicant provides her with 2,000 RMB each month for living expenses including food, clothing and shelter.  

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

6. The Tribunal notes the evidence discussed earlier in this decision record pertaining to the financial support purportedly provided by the primary visa applicant to the secondary applicant. The review applicant has provided evidence the review applicant claims is 12,360 RMB provided by the primary visa applicant to the secondary applicant in the 16 months between September 2019 and January 2021 through both bank transfer and WeChat.  The review applicant in her oral testimony claimed that further amounts were provided to the secondary applicant by the primary visa applicant in cash on an ‘as needs’ basis, especially given the claim of the primary visa applicant and secondary applicant to reside together.  

7. The Tribunal notes the claim that these monies are evidence of the secondary applicant’s dependence on the primary visa applicant.  The Tribunal accepts that the secondary applicant is not married or in a spousal relationship and is prepared to accept that she is residing with the primary visa applicant.  The Tribunal does not however, on the evidence before it, consider the evidence that has been submitted of multiple transfers of monies from the primary visa applicant to the secondary applicant is evidence that, at the time of decision and for a substantial period earlier, the secondary applicant is wholly or substantially reliant on the primary visa applicant for food, clothing and shelter.  The Tribunal at the hearing specifically pointed out to the review applicant the requirement that the monies must be utilised by the secondary applicant to meet her basic needs for food, clothing and shelter. There is no corroborative evidence however before the Tribunal as to how these monies have been utilised.  There is no corroborative evidence before the Tribunal as to how the secondary applicant utilised these funds for food or for clothing at any time, including at the time of decision and for a substantial period previously.   The Tribunal does not consider general and somewhat generic statements that the primary visa applicant has been providing the secondary applicant with funds to be satisfactory evidence that the secondary applicant is utilising such funds to meet her basic needs for food and clothing.  The Tribunal does not consider these statements – both from the parties and in relation to the financial statements submitted - represent evidence that satisfies it that these monies have been utilised by the secondary applicant for either food, clothing or shelter.  No receipts or other corroborative evidence have been provided to the Tribunal as to how the secondary applicant has utilised these funds to meet her basic needs for food, clothing and shelter, despite the Tribunal at the hearing clearly annunciating the requirements to meet ‘dependency’ under the Regulations.  The Tribunal is being asked to essentially rely upon the oral testimony of the review applicant and the review applicant’s sister as well as the limited supporting documentation that has been submitted by the secondary applicant and the primary visa applicant.  The Tribunal considered both the oral testimony as well as the supporting documentation to be high-level, vague and lacking in adequate detail to satisfy it that the monies that have been supplied by the primary visa applicant to the secondary applicant have been utilised by the secondary applicant to meet her basic needs for food, clothing and shelter at the time of decision and for a substantial period previously.  The Tribunal considers the evidence that is before it is insufficient to establish the dependency between the secondary applicant and the primary visa applicant as claimed.             

8. The review applicant and her sister 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 her life.  They have claimed that the secondary applicant, now 26 years of age, is able to work and seek employment but has not and has never done so, despite finishing her tertiary studies in 2016.  They have claimed that she is not studying, not working but simply reliant and totally dependent upon the primary visa applicant.  In her own written statement, the secondary applicant states that the primary visa applicant is teaching her design and technology to ‘broaden my skill set’ whilst she is ‘still reliant and financially dependent’ for all living expenses.  She states that since graduating from college in 2016 she has been trying to find work but has been unable to do so.   

9. The review applicant has submitted that the documentation she has provided of 9 separate financial transfers purportedly from the primary visa applicant to the secondary applicant – is evidence of the secondary applicant being wholly or substantially reliant on the primary visa applicant for financial support to meet her basic needs for food, clothing and shelter at the time of decision and for a substantial period earlier.  Her testimony, along with the written statements of the primary visa applicant and secondary applicant, is that at the time of decision the secondary applicant is wholly dependent upon her father.      

10. The Tribunal considers the paucity of the evidence that has been provided in relation to the claimed dependency – and the absence of any sort of detail as to how the claimed financial support is being utilised to meet the secondary applicant’s basic needs for shelter, food and clothing leads the Tribunal to question the veracity of the claim. The Tribunal notes that in the Dependency Questionnaire the secondary applicant claimed the primary visa applicant would give her RMB 2,000 per month ‘for my living expenses including food, clothing etc’ but no evidence to substantiate such utilisation of these monies for this purpose has ever been provided. The Tribunal notes it highlighted at its hearing r.1.05A from the Migration Regulations and the definition of ‘dependent’, that included the financial support from the primary visa applicant, as the source of support, was to specifically ‘meet the secondary applicant’s basic needs for food, clothing and shelter’.  The Tribunal is prepared to accept that the secondary applicant is residing with the primary visa applicant.  The Tribunal is prepared to accept that the primary visa applicant provides some financial support to the secondary applicant from time to time, as illustrated by the occasional payments that have been submitted both to the Tribunal and previously to the delegate.  The Tribunal also accepts the primary visa applicant may from time to time provide some cash to the secondary applicant.  The Tribunal does not however, on what it considers is the very limited evidence before it, accept that the secondary applicant’s basic needs for food and clothing are being met either wholly or substantially by the primary visa applicant.

11. The Tribunal notes the various claims in evidence that the secondary applicant is not and has never been in any form of employment.  The Tribunal, noting the secondary applicant’s education and her lack of any claimed medical concerns that could preclude her from employment, asked the review applicant why in fact the secondary applicant was unable to work.  The review applicant stated that the secondary applicant wasn’t interested.  The review applicant’s sister stated that she wasn’t working because she wanted to come to Australia whilst the secondary applicant claimed she couldn’t find employment since graduating in 2016.  The Tribunal notes the declaration of the primary visa applicant from 10 April 2019 where he stated the secondary applicant had not found a job as she failed to obtain a tour guide certificate since graduating from Guangdong Mechanical & Electrical Polytechnic in June 2016. 

12. The Tribunal has considered the claims, particularly that of the review applicant, and finds it is not satisfied with the veracity of the claim the secondary applicant is not and has not been in any form of paid employment.  The Tribunal notes the secondary applicant is 26 years of age.  She has undertaken post-secondary education.  She claims no disabilities or impediments that would preclude her from gainful employment.  The Tribunal does not accept the submissions that she has either been unwilling to seek employment (as put forward by the review applicant) or has been unable to find work since 2016 (as the secondary applicant has stated in her written statement). The Tribunal does not consider the claims of the review applicant in relation to the secondary applicant’s employment to be credible.  No satisfactory evidence – beyond claims the secondary applicant went travelling and then spent some time studying English - as to what the secondary applicant has actually done since completing her studies in 2016 in lieu of employment is before the Tribunal.  The Tribunal notes that whilst the review applicant has supplied records of the primary visa applicant’s bank account illustrating payments to the secondary applicant’s bank account, there is no evidence of the secondary visa applicant’s bank account and its own activity, despite the invitation of the Tribunal to provide further evidence relevant to the dependency issue post-hearing.  The Tribunal quite simply is not satisfied on the evidence before it that the secondary applicant, now aged 26 years of age, has never been engaged in gainful employment.  The Tribunal is not satisfied on the evidence before it that the secondary applicant is not in some form of paid employment either currently or has been in recent times.   

13. The Tribunal notes the evidence pertaining to the secondary applicant's mother, and the claim made that she provides no support to the review applicant.  The review applicant stated that the secondary applicant does in fact maintain some sort of relationship with her mother.  The Tribunal notes the legislation does not preclude the secondary applicant from receiving some support from another person or source of support, but their reliance on the other person or source of support must not be greater than their reliance on the other person.  The Tribunal makes no finding in relation to the secondary applicant’s mother and her support for the secondary applicant.

14. 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 her father, the primary visa applicant, for financial support to meet her basic needs for food, clothing and shelter.  There is no satisfactory evidence before the Tribunal as to how the secondary applicant is utilising the monies that have been claimed to meet her basic needs for food or clothing. The Tribunal is being asked to rely and accept the veracity of the oral claims of the review applicant, her sister plus a number of written statements as well as a number of financial transactions amounting to around AUD$2,500 over the past 16 months – as well as two brief written statements made by the primary visa applicant and secondary applicant post-hearing – that these monies represent the only monies received by the secondary applicant and she is, subsequently, wholly or substantially reliant on the primary visa applicant  for financial support to meet her basic needs for food, clothing and shelter.  In the absence of any satisfactory evidence as to how these monies are being utilised, the Tribunal gives the claims little positive weight.        

15. The Tribunal is not satisfied that the secondary applicant is either wholly or substantially reliant on the primary visa applicant on such limited evidence.  It is not the task of the Tribunal to make the review applicant’s case.  The scant evidence before the Tribunal is not, in the Tribunal’s view sufficient to establish the secondary applicant’s claimed dependency on the primary visa applicant. The Tribunal does not accept that 9 claimed money transfers over the last 16 months (plus other claimed non-recorded cash payments) is evidence to satisfy it of the secondary applicant’s dependency on the primary visa applicant for her basic needs for food, clothing and shelter.  The Tribunal considers the review applicant and the parties have had ample opportunity to put to the Tribunal evidence of the claimed dependency and how the secondary applicant is reliant upon the primary visa applicant either wholly or substantially for financial support to meet their basic needs for food, clothing and shelter.  The Tribunal, on the evidence before it, is not satisfied they have done so. 

16. The Tribunal is not satisfied that the secondary applicant has demonstrated that she has been financially dependent on the primary visa applicant to meet her 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).

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

18. 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 whether the secondary applicant had any mental, psychological or physical disabilities or impairments that preclude her from working. The review applicant stated that the secondary applicant could get very angry, whilst her sister in oral testimony stated that she did not have any mental, psychological or physical disabilities or impairments that preclude her from working. No medical evidence has been presented or claims made that the secondary applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal notes, as outlined in the decision record the review applicant provided, that in the secondary applicant’s dependency questionnaire she answered ‘No’ to the question pertaining to any incapacitation for work due to total or partial loss of bodily or mental functions.

19. 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 her bodily or mental functions and subsequently does not meet the definition of a ‘dependent child’ under r.1.03(b)(ii). The Tribunal 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.

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

21. The secondary applicant is 26 years of age at the time of decision. As she 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), she 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 she 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 14 December 1994.  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.

1. There is no evidence that the secondary applicant would meet the secondary criteria for a Subclass 116 (Carer) or a Subclass 114 (Aged Remaining Relative) visa.

   Primary visa applicant Mr Zhaohui Li

2. 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.

3. 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’.

4. 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)

5. The Tribunal accepts the evidence before it that the Australian relative in this case is the sister 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)

6. 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.

7. The Tribunal accepts on the evidence before it that the Australian relative, the review applicant, is usually resident in Australia.  She arrived in Australia in 2006 and is an Australian citizen.  She resides in Padstow with her daughter.  Other family members such as her sister and mother also reside locally.  The Tribunal accepts the review applicant’s settled or usual abode is in Australia.      

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

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

9. 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.

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. In her Form 47OF received by the Department on 22 June 2010, the primary visa applicant listed his family members.  He included his mother Ms Yucheng Li (born 13 November 1930); his father Mr Liping Feng (born 22 December 1937); his sister and review applicant Ms Wanna Li Larkins (born 24 September 1961); and his other sister and witness at the Tribunal Ms Wan Hong Li  (born 30 January 1964).  All were listed as residing in Australia. The Tribunal notes that the primary visa applicant’s father has since deceased.  The Tribunal accepts that the primary visa applicant’s mother, and two sisters are all near relatives that are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. 

12. The primary visa applicant also listed the secondary applicant, his daughter Ms Qianru Li (born 14 December 1994), as a member of his family unit.  She was included in the primary visa applicant’s application as a migrating member of her family unit.  At the time of decision, she is 26 years of age and remains a resident and citizen of PR China. 

13. The question before the Tribunal was whether the primary visa applicant’s daughter, the secondary applicant, being over 18 years of age is a ‘dependent’ of 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 daughter, 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 she is financially dependent on the primary visa applicant. 

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

15. Subsequently, as the primary visa applicant has a ‘near relative’ – his daughter, the secondary applicant – who is not usually resident in Australia, and not an Australian citizen, Australian permanent resident or eligible New Zealand citizen, he 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).

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

17. 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.

18. 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.

19. 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.

20. The evidence before the Tribunal indicates that the primary visa applicant was born on 30 December 1959.  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

21. 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).