Li (Migration)

[2020] AATA 5207

Li (Migration) [2020] AATA 5207 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Chunying Li

VISA APPLICANT:  Mr Cihuan Chai

CASE NUMBER:  1824688

DIBP REFERENCE(S):  BCC2017/608095

MEMBER:David Crawshay

DATE:23 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 23 November 2020 at 1:34pme

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – member of family unit – adult child secondary applicant to father’s partner visa application – dependency – reliance for financial support because of incapacity – mental health – depression and anxiety interrupted studies – living with sister and brother-in-law, with some financial support from father – irregular psychological consultations – evidence of financial support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cls 309.311, 309.321

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 23 July 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is Mr Cihuan Chai, 26, who is a citizen of the People’s Republic of China.

3. The visa applicant lodged the visa application on 14 February 2017 on the basis of being a secondary visa applicant of the primary visa applicant, Mr Shaoquan Chai, his father. The primary visa applicant applied for a Partner (Provisional) visa on the basis of relationship with his sponsor, Ms Chunying Li. Ms Li is the review applicant in the present matter. She is an Australian permanent resident.

4. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly for this matter, this includes the criteria under cl.309.311 and cl.309.321 which are criteria to be satisfied at the time of application and decision respectively.

5. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.321(a) because it was found that he was not a member of the family unit of the primary visa applicant at the time of decision. The delegate found that the visa applicant did not meet the definition of “dependent” under r.1.05A(1)(b) as he had turned 23 at the time of the decision but had not provided evidence that he was incapacitated for work due to the total or partial loss of his bodily or mental functions. The review applicant provided the Tribunal with a copy of the decision record.

6. The review applicant appeared before the Tribunal on 21 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from the primary visa applicant. The hearing was conducted by teleconference as requested by the review applicant. The Tribunal accepted the review applicant’s request to have the matter heard by this means (and not by Microsoft Teams video).

7. The hearing was conducted with the assistance of a translator of the Mandarin and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent.

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

   PRE-HEARING MATERIAL

10. In noting the delegate’s findings that no evidence was submitted showing the visa applicant was incapacitated for work due to the total or partial loss of his bodily or mental functions, on 21 August 2020 the Tribunal wrote to the review applicant under s.359(2) of the Act. The letter relevantly stated as follows:

    Request for information

    The Tribunal requests you to provide evidence that the visa applicant is wholly or substantially reliant on you for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions.

11. The purpose of the letter was to elicit any information showing that the visa applicant was suffering from incapacitation of the type identified in r.1.05A(1)(b) of the Regulations. A due date of 9 September 2020 was set for providing this information, which was extended by the Tribunal to 14 September 2020 on request from the review applicant.

12. On 14 September 2020, the review applicant submitted a number of documents from a hospital in Tianjin, comprising health records and diagnostic certificates from visits in November 2017, May 2018, December 2018, September 2019 and July 2020. The review applicant also provided a certificate of attainment from the Xingzhi College of Xi’an University of Finance and Economics dated 30 September 2019.

    EVIDENCE AT HEARING

13. The Tribunal heard firstly from the review applicant. It asked her what she had to say about whether the visa applicant satisfies the criteria at the time of decision, and she replied that the visa applicant has depression and had stopped attending study. The Tribunal asked when she found out about this. The review applicant said that it was probably around the end of 2018 when she heard from the visa applicant’s sister (she did not hear it from the visa applicant). She said that the visa applicant began seeing the doctor in 2017, but they did not find out the details of the diagnosis until 2018. She said that he is currently living at home receiving treatment.

14. The Tribunal asked when the depression began occurring, and the review applicant replied that she thought it was around the middle of 2017, before saying that she thought it was March or April 2017. The Tribunal asked her what she thought brought on the depression. She said that she did not know but she presumed it was the divorce of his parents. She said that she was worried to ask about the reason, so she does not know the true answer. The Tribunal asked her how long the visa applicant’s parents have been separated, and she replied that they have been separated for more-than-10 years but did not divorce until six or seven years ago. The Tribunal asked her why, in these circumstances, would the visa applicant have developed depression. She replied that when the visa applicant’s parents were divorced he was very young and was too immature to appreciate, and it was only when he got older that he felt the impact.

15. The Tribunal asked if the review applicant had noticed the depression when she was there in 2017 or had the primary visa applicant also noticed during his two visits in 2017 and 2018. She said that, at that time, her first observation was that the visa applicant was very quiet and did not like to talk. She said that her presumption was that the reason for his unhappiness was because of her as she was his step-mother and he needed more time to accept her but then she learnt that he had depression.

16. The review applicant was asked where the visa applicant attended university and she said in Xi’an. She said that he came to visit in Tianjin in January 2017 during the winter holiday when she and the primary visa applicant were there. She said that he currently lives with his sister in Tianjin. She was asked whether he ever stays with his mother, to which she replied that he probably does not from her observations.

17. The review applicant said that the visa applicant is looked after by his sister and brother-in-law. She said that the sister cooks and does laundry for him. She was asked what happened if something needed to be paid for, and she replied that when she and the visa applicant were in China the visa applicant left him CNY100,000 which was given in cash. She said that she and the primary visa applicant had been providing ongoing financial support. When asked for evidence of this, she pointed to the CNY100,000 payment, rent that accrues from a property owned by the primary visa applicant and transfers of money. She said that they had been remitting money to him since they were married through online transfers.

18. The review applicant was asked where the visa applicant was living when he began his study in 2014, and she replied that he was living at university or with his sister. She said that he was given financial support by his father. The Tribunal asked her if it was fair to say that the visa applicant was not incapacitated for work at this time and she said that that was correct.

19. The Tribunal put it to the review applicant that plenty of people live and work with depression and asked her what made the visa applicant’s depression a special case. She replied that he is very quiet, does not like to talk, does not like to go out and has lost his appetite. She said that the primary visa applicant had told her that the visa applicant used to be a talkative person.

20. The primary visa applicant was interviewed next. It asked him what condition the visa applicant suffered from, and he replied anxiety. He said that the visa applicant was very quiet, did not like to go out and locked himself in his room. He said that the visa applicant is currently living with his sister and she looks after him by cooking and doing laundry and domestic duties.

21. The primary visa applicant said that he assists the visa applicant financially and psychologically. He said that he would give the visa applicant money so he does not struggle financially – he would wire money for his tuition fees and for pocket money to meet his basic needs. He said that the visa applicant’s mother does not look after him at all; he said that she does not have a source of income.

22. The Tribunal asked the primary visa applicant if there was any evidence of financial support from him to the visa applicant. He said that he had a receipt from a bank to prove the money transfers. The primary visa applicant said that he provided evidence of transfers to the Department. The primary visa applicant said that he left CNY100,000 in cash with the visa applicant when he left to go to Australia in 2018.

23. The Tribunal asked the primary visa applicant when the visa applicant showed symptoms of anxiety. He said that he did not know when he started to show the symptoms, but when the primary visa applicant was in China in 2017 and 2018 he noticed that the visa applicant became very quiet and did not like to go out. He said that he thought it was because he was young, but when he returned to Australia the visa applicant’s sister told him that the visa applicant had issues and the symptoms had worsened since the primary visa applicant went to Australia.

24. The primary visa applicant was asked when the visa applicant finished his studies and he replied that he stopped studying after the primary visa applicant travelled to Australia in August 2018, refused to go back and never completed his studies. He said that the visa applicant went back once but no more than that. The primary visa applicant was asked if the visa applicant did not normally act in the way that he had and he said that during the time he was in China in 2017 he guessed that the visa applicant’s symptoms had been alleviated but they worsened in 2018 after the primary visa applicant left to go to Australia. At this point, the Tribunal put to the primary visa applicant that the visa applicant presented at hospital with symptoms during the time when the primary visa applicant was over there in 2017 and 2018. He replied that the visa applicant’s sister took the visa applicant to hospital without his knowing because she did not want him to worry.

25. The Tribunal questioned the primary visa applicant on the claimed money transfers prior to 2017. He told the Tribunal that they began in 2014 when the visa applicant was required to pay tuition fees. He said that he would transfer money to the visa applicant’s Bank of China account. He said that he would transfer an amount of AUD3,000-a-year. When asked to confirm if the payments were for AUD3,000-a-year, the primary visa applicant said that the payments could be AUD5,000-a-year if the visa applicant needed more. He said that the visa applicant had no other sources of income between 2014 and 2017. The Tribunal put to the primary visa applicant that it would be implausible for a lump-sum payment of that amount to be his only source of income. He replied that the time he made the transfers was not fixed.

26. The Tribunal asked the primary visa applicant whether the visa applicant received money or other support from his sister, and he replied no. The Tribunal asked where the visa applicant was living at this stage when not at university, and he replied with his sister who would provide accommodation meals and laundry. The Tribunal put to the primary visa applicant that this was support. He replied that he had told the visa applicant’s sister that he would compensate her for the cost incurred by giving her CNY5,000 every year cash-in-hand. The Tribunal asked how he could give her cash-in-hand, and he said that the money would be included in the CNY100,00 and he asked his daughter to use money from that sum. The Tribunal put to the primary visa applicant that he had said that the CNY100,000 was given in 2018. He agreed and said that the rent of the property had been CNY26,000 annually and the money would be left to the visa applicant’s sister to be used to help the visa applicant.

27. The Tribunal put its concern to the primary visa applicant that while he said he gives the visa applicant’s sister money every year he had not given her money every year. He replied that it was his understanding that the visa applicant’s sister could use the money for her costs. The Tribunal put to the primary visa applicant that he had not given money to the visa applicant’s sister prior to 2018, and he agreed. He said that he returned to Australia in 2018 and gave her the money prior to this departure.

28. The Tribunal put to the primary visa applicant that plenty of people live and work with conditions such as anxiety and asked him what made the visa applicant’s anxiety a special case. He replied that the visa applicant does not like to go out and meet people, and he locks himself in a room. He was asked why the visa applicant could not work just because of those things and he repeated that the visa applicant does not like to go out and meet people. The Tribunal put to the primary visa applicant that there are plenty of jobs where you do not need to meet people and he replied that the visa applicant does not like to go out, eat or talk to people. He said that the visa applicant does not like to go to work. When questioned on whether the visa applicant has or had a job, given that the primary visa applicant had said (through the interpreter) that the primary visa applicant “does not like to go to work”, he said that the visa applicant has never had a job.

29. The Tribunal lastly interviewed the visa applicant. It asked him what he was doing at the moment. He said that normally he would stay at home. He said that he lives at his sister’s house. It asked him what a day-in-the-life looks like and he replied that there is nothing that he wants to do in particular and he just stays at home. The Tribunal asked when the visa applicant stopped studying and formally going to university and he replied in 2019. The Tribunal asked if the visa applicant was passing his subjects before he stopped studying and he said that he passed some of the subjects but others he failed.

30. The Tribunal asked if the visa applicant has results from his university and he replied that he did not keep them because he dropped out. It put to the visa applicant that he had a certificate of attainment from the university, but he said that he did not keep the results.

31. The visa applicant was asked if his sister had been looking after him and he replied that she had been doing cooking and laundry and paying for daily expenses. The Tribunal asked whether she had provided accommodation and he replied that she had. He said that this was the arrangement when the visa applicant was not at university in Xi’an. The Tribunal asked the visa applicant where he would receive money from, and he replied that it came from his sister and her money had come from the primary visa applicant and the review applicant.

32. The Tribunal asked the visa applicant whether he thought he was incapacitated for work and he replied that he just does not want to go to work. When asked what this meant, he said that he just wanted to stay at home and did not have the mood. It asked him when he began seeing someone about this issue, and he said he thought it was 2017. He said that he saw a psychologist for his condition about once-or-twice-a-year. He said that his condition was a bit better now and that there were times when he was quite functional. He said that when it come on it would last for a week to a month every time. The Tribunal asked whether he was seeing the psychologist regularly now, and he replied that he would attend once-or-twice-a-year. The Tribunal put to him that this was not regular and that he would want to see the psychologist regularly to do something about it. He replied yes. The Tribunal asked why he was not seeing the psychologist regularly and he replied that he was missing the primary visa applicant.

    POST-HEARING MATERIAL

33. On 5 October 2020, the Tribunal sent a combined s.359A/s.359(2) to the review applicant in the following terms (so far as is relevant):

    Section 359A

    Part A

    The particulars of the information are as follows:

    ·At the hearing on 21 September 2020, the primary visa applicant (Mr Shouquan Chai) was asked by the Tribunal about financial support to the visa applicant (Mr Cihuan Chai) from 2014, how often this support was given and how much support was given. In response, the primary visa applicant told the Tribunal that he would send $3,000 once-a-year.

    ·When asked how else the visa applicant would support himself, the primary visa applicant said that there was no other source of support.

    ·When questioned about whether $3,000 would be enough for the visa applicant to live on, the primary visa applicant said that sometimes he would give $5,000 if the visa applicant needed more.

    ·When suggested by the Tribunal that it would be implausible that the visa applicant’s only source of income would be a lump-sum payment in advance, the primary visa applicant said that the payments were once-a-year but the month when the payments were made was not fixed.

    ·The primary visa applicant said elsewhere that he did not begin transferring money to his daughter, whom he said was providing accommodation and meals to the visa applicant, until 2018.

    This information is relevant to the review because it suggests that the primary visa applicant’s claim of supporting the visa applicant by giving him lump-sum payments once-a-year of around $3,000-to-$5,000 is implausible, and that the visa applicant was reliant on his sister for financial support until at least 2018 and she was not compensated for this support until at least 2018 (if at all).

    If the Tribunal relies on this information in making its decision, it may cause the Tribunal to not be satisfied that the primary visa applicant was reliant on his father for financial support in the manner provided for by r.1.05A(1) of the Migration Regulations at the time of application. (See attached for the relevant extract of that regulation.)

    This would be the reason, or a part of the reason, for affirming the decision that is under review.

    Part B

    The particulars of the information are as follows:

    ·The primary visa applicant told the Tribunal that he would give his daughter 5,000RMB cash-in-hand every year to compensate for the costs incurred with having the visa applicant.

    ·When asked how this money was given, the primary visa applicant said that the money was included in the 100,000RMB that he left with the visa applicant in 2018.

    ·Elsewhere, the primary visa applicant told the Tribunal that he began “transferring” money to his daughter to compensate for the visa applicant’s costs in 2018.

    This information appears to be internally inconsistent, with the primary visa applicant variously claiming to give the money to his daughter cash-in-hand, out of a lump-sum payment to the visa applicant, or via money transfers.

    This information is relevant to the review because it suggests that the primary visa applicant’s claim to provide payments to compensate his daughter for looking after the visa applicant may have been fabricated and there was no financial arrangement entered into by the primary visa applicant and his daughter.

    If the Tribunal relies on this information in making its decision, it may cause the Tribunal to not be satisfied that the primary visa applicant was reliant on his father for financial support in the manner provided for by r.1.05(1)(b) of the Migration Regulations at the time of decision. (See attached for the relevant extract of that regulation.)

    Section 359(2)

    You are invited to provide the following information:

    ·evidence of financial support given to the visa applicant by the primary visa applicant and by you, from a date approximately one year before the time of application until today. The time of application was 14 February 2017.

    ·the visa applicant’s study results for the course undertaken by him at Xing Zhi College and results for any other study undertaken after the completion of his secondary schooling.

1. On 26 October 2020, having been granted an extension to the due date for the combined letter, the review applicant submitted a number of documents to the Tribunal including an undated letter. The letter relevantly provided as follows:

   My husband (Shouquan CHAI) and I would like to provide the following explanations in regard to your letter date on 5 October 2020:

   1.     From 2014 till now, our son, Cihuan CHAI’s living maintenances fees are provided by my husband and I (after our marriage.)

   a.My husband sent A$5,000.00 to our son on 31 August 2014. (Attached is the money transfer certificate)

   b.We sent twice between February and October 2015 with total of A$6,000.00; (Attached is the transfer certificate.)

   c.We sent A$3,000.00 in November 2016; (Attached is the transfer certificate.)

   d.In 2017, my husband left Australia to wait for his 309 visa, and during this time, he lived with his son and continued his obligation of providing support to his son.

   e.In 2018, my husband’s 309 visa was approved, he left 100,000 Chinese Yuan to his daughter in cash to be used as our son’s living expenses for 2-3 years, and my husband has a property in China which is rented out with annual rental income of 21000-25000 Chinese Yuan. This amount of income is also kept by my husband’s daughter on our behalf, and some of them is used for our son’s daily expenses and medical treatment if needed.

   f.After our son graduated from High School, he went to Zhixing College, but due to his health problems, he couldn’t finish his study. We provide you with all relevant documents from his college, including his Certificate of Attainment which had been presented to the Immigration Department before.

   g.My husband Shaoquan CHAI doesn’t have higher level of education and he is poor in expressing himself, plus his health is not well in the last two years and he was nervous, so his answer to the questions about his son’s maintenance fees were not clear. We apologise for any confusions caused to your Case Officer. I hope our statement as stated above and supporting documents can show you more clearly that we have been supporting Cihuan CHAI.

2. The balance of the documents comprised the following:

   ·a rental property agreement over a property in Tianjin for a three-year period from 11 July 2016 to 10 July 2019 with the primary visa applicant as lessor;

   ·a rental property agreement over the same property in Tianjin for a three-year period from 10 July 2019 to 9 July 2022 with the primary visa applicant as lessor;

   ·acknowledgements from the Bank of China regarding the following remittances made by the primary visa applicant to the visa applicant:

   o   AUD5,000 on 31 August 2014;

   o   AUD3,000 on 8 February 2015;

   o   AUD3,000 on 11 October 2015;

   o   AUD3,000 on 13 November 2016;

   ·untranslated documents (some of which appear to be receipts) dated 2014, 2016, 2017, 2018 and 2019

   ·a document titled “Certificate of Educational Background for Student at School” from Xing Zhi College of Xi’an University of Finance and Economics dated 20 April 2018 in relation to the visa applicant;

   ·a document titled “Decision on Disposal of Student Status Registration Change of 29 Students including Zhao Chenyu” from Xing Zhi College of Xi’an University of Finance and Economics dated 29 September 2016 (this document appears to have been submitted twice);

   ·various certificates of assessment from Xing Zhi College of Xi’an University of Finance and Economics in relation to the visa applicant:

   o   “Notification of New Students’ Enrolment”, dated 10 August 2014;

   o   “Student Assessment Form 2014-2015;

   o   “Student Assessment Form 2016-2017;

   o   “Student Assessment Form 2017-2018; and

   ·a document titled “Student Registration Online Verification Report" from the Chinese Department of Education, dated 13 October 2020;

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the visa applicant was a member of the family unit of the primary visa applicant under cl.309.311 at the time of application. Although the Tribunal notes that the delegate’s decision focussed solely on whether the visa applicant was a member of the family unit of the primary visa applicant under cl.309.321 at the time of decision, it put the review applicant on notice at the hearing and by the contents of the s.359A/s.359(2) letter post-hearing that it would be considering the time of application considerations. It is satisfied that she had a meaningful opportunity to present evidence and arguments in relation to cl.309.311 at the hearing and through her response to the Tribunal’s s.359A/s.359(2) letter.

   Is the visa applicant a member of the family unit?

4. Under cl.309.311, the visa applicant must be a member of the family unit of a person who satisfies the primary criteria in Subdivision 309.21. Under cl.309.321(a), the visa applicant must continue to be a member of the family unit of a person who satisfies the primary criteria of a subclass 309 visa (cl.309.321(b) does not apply). Mr Shaoquan Chai, the visa applicant’s father, has satisfied the primary criteria as the husband of the review applicant.

   At the time of application

5. At the time of application on 14 February 2017, the visa applicant was 22 years old. According to the definition of member of the family unit under r.1.12, the visa applicant must be found to have been dependent on the primary visa applicant or on the review applicant under r.1.05A.

6. Regulation 1.05A relevantly provides as follows:

   (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.

   (2)   …

7. The Tribunal has considered the evidence on the Department and Tribunal files. It has had particular regard to evidence received from the review applicant in response to its s.359A/ s.359(2) letter of 5 October 2020, as well as the testimony given by the parties and by the primary visa applicant at hearing.

8. Based on this evidence, the Tribunal makes the following findings. It finds that the visa applicant was not incapacitated for work due to the total or partial loss of his bodily or mental functions at the time of application. The Tribunal notes that no evidence was advanced to suggest that he was incapacitated in this way at that time. The review applicant stated her belief that the visa applicant began suffering from depression in around March or April 2017. Furthermore, the evidence shows that the visa applicant was still enrolled at university and was satisfactorily completing his subjects at this time. While this fact alone may not sustain a finding that the visa applicant was not incapacitated, it lends weight to such a finding when read with other evidence such as that given by the review applicant.

9. The Tribunal is not satisfied that the visa applicant meets r.1.05A(1)(b) at the time of application.

10. That being the case, the Tribunal now turns to consider if the visa applicant was dependent on the primary visa applicant or on the review applicant at the time of application pursuant to r.1.05A(1)(a). In doing so, it notes the evidence provided regarding the provision of financial assistance to the visa applicant. Based on supporting evidence, the Tribunal accepts that the primary visa applicant and/or the review applicant had been transferring money to the visa applicant since at least 2014 when the primary visa applicant transferred AUD5,000. It accepts that the visa applicant received further payments in the order of AUD3,000 each time in February 2015, November 2015 and November 2016.

11. The Tribunal has considered the evidence of the primary visa applicant and the review applicant that the visa applicant was receiving money either directly or through his sister from income from rental payments for the Tianjin property owned by the primary visa applicant. It accepts that the primary visa applicant was entitled to receive income from rental payments for the property from at least July 2016 when the first three-year lease began. However, and in the absence of evidence that the Tribunal believes is reasonable to provide, it is not satisfied that this income flows through to the visa applicant either directly or through his sister.

12. The Tribunal has considered the evidence of the parties and of the primary visa applicant that the primary visa applicant had left CNY100,000 with either the visa applicant or the visa applicant’s sister before travelling to Australia in 2018 to use the money for his benefit. While the Tribunal has no evidence of this transfer taking place it accepts for present purposes that it was given and acknowledges that it is a sizeable sum of money – amounting to around AUD20,000 at around August 2018 which was when the primary visa applicant travelled to Australia.

13. However, the Tribunal questions to what extent this money can be said to be “compensation” for expenses incurred by the visa applicant’s sister in the preceding years as claimed – including at the time of application and for a substantial period immediately before then. The date of application was February 2017, some 18 months prior to the payment being made. If we are to consider that the visa applicant needs to be reliant on the primary visa applicant and/or the review applicant for a substantial period immediately before the date of application, then that period extends out to being around two-and-a-half years prior to the payment being made. While the Tribunal accepts that this money may have been used for expenses incurred by the visa application after the payment had been made, it is not satisfied that this payment can be characterised as being financial support that was given to the visa applicant at the time of application or during a substantial period immediately before the time of application owing to the fact that it was given so long after that period.

14. The Tribunal finds it implausible that the visa applicant would be able to pay for all of his basic needs of food, clothing and shelter out of the money given by the primary visa applicant and/or the review applicant, being AUD5,000 in 2014, AUD6,000 in 2015 and AUD3,000 in 2016. This is especially so because there is no evidence in front of the Tribunal to show that the primary visa applicant and/or the review applicant made separate payments for the visa applicant’s tuition fees and his accommodation while on campus in Xi’an and the Tribunal believes it is reasonable to conclude that these expenses were paid out of those transfers or by other means or a combination of both. Although the Tribunal notes that accommodation costs are considered basic needs under r.1.05A, Department policy states that tuition fees are not.[1]

    [1] Policy – Migration Act > Act-defined terms instructions > s5G – Relationships and family members – Dependent family members > 36. Basic needs.

15. The Tribunal reasonably believes that the visa applicant received financial support from other sources. In this regard, it finds that the visa applicant’s sister was providing him with financial support in the form of accommodation, meals and other expenses at the time of application and for a substantial period immediately before then. This much was acknowledged by the parties and by the primary visa applicant (albeit that they claim she was compensated for these expenses) because the visa applicant spent part of the year living with her. The Tribunal finds that the visa applicant’s sister was financially supporting him when he was living at her house during university breaks (which appear to be twice yearly during Summer and Winter) from when he began his studies in September 2014 until at least the time of application. However, and based on the implausibility of the visa applicant being able to cover his basic needs by using the money transfers from the primary visa applicant and/or the review applicant, the Tribunal suspects that his sister was also providing financial support to him when he was staying on campus in Xi’an.

16. The Tribunal has considered the above evidence and balanced it against itself. Based on the evidence, it is not satisfied that the transfers that were given to the visa applicant by the primary visa applicant and/or the review applicant in 2014, 2015 and 2016 were sufficient to cover the basic needs of the visa applicant, either in whole or substantially, at the time of application and for a substantial period immediately before. Moreover, given the support that the visa applicant’s sister provided by way of accommodation, meals and other expenses, the Tribunal is not satisfied that the support given by the primary visa applicant and/or the review applicant was greater than the support given by other sources including the visa applicant’s sister at those times.

17. The Tribunal is therefore not satisfied that at the time of application and for a substantial period immediately before that time, he was wholly or substantially reliant on the primary visa applicant or the review applicant for financial support to meet his basic needs for food, clothing and shelter. It is not satisfied that the visa applicant’s reliance on the primary visa applicant or the review applicant was greater than any reliance by him on any other person or source of support, including his sister, for financial support to meet those basic needs at those times.

18. The Tribunal is not satisfied that the visa applicant meets r.1.05A(1)(a) at the time of application. Regulation 1.05A(2) does not apply.

19. For these reasons, the visa applicant was not dependent for the purposes of r.1.05A and was therefore not a member of the family unit of the primary visa applicant at the time of application.

20. The Tribunal finds that he does not satisfy cl.309.311, which is a requirement for the grant of the visa.

    At the time of decision

21. As the Tribunal has found that the visa applicant does not meet cl.309.311, which is a criterion to be satisfied at the time of application, it is unnecessary to consider if he meets the cognate requirement under cl.309.321 at the time of decision which again requires him to be found to be a member of the family unit of the primary visa applicant.

22. The Tribunal notes that, as the visa applicant has turned 23 at the time of the decision, the visa applicant would have needed to be found to be dependent under r.1.05A(1)(b) in order to be found to be a member of the family unit of the primary visa applicant: r.1.12(2)(b)(iii). This in turn would have required the Tribunal to find that the visa applicant was wholly or substantially reliant on the primary visa applicant or the review applicant for financial support because the visa applicant was incapacitated for work due to the total or partial loss of his bodily or mental functions.

23. The Tribunal acknowledges the evidence submitted by the parties and by the primary visa applicant, as well as the testimony given by all three at hearing. It accepts that this evidence, which was not in front of the delegate at the time of making their decision, may indicate that the visa applicant has been suffering from depression and/or anxiety since around mid-2017. It does not make a finding on whether this depression and/or anxiety were such that the visa applicant was incapacitated for work. Similarly, it does not make a finding on whether the visa applicant was wholly or substantially reliant on the primary visa applicant or on the review applicant because he was incapacitated for work. As above, the fact of the Tribunal finding that the visa applicant has not satisfied cl.309.311 makes it unnecessary to do so.

24. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    David Crawshay
    Member