Lin (Migration)

[2018] AATA 704

Lin (Migration) [2018] AATA 704 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lingguo Lin

VISA APPLICANT:  Mr Lingshu Lin

CASE NUMBER:  1606986

DIBP REFERENCE(S):  2013/062229

MEMBER:Kira Raif

DATE:13 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·cl.143.311 of Schedule 2 to the Regulations; and

·cl. 143.321 of Schedule 2 to the Regulations.

Statement made on 13 March 2018 at 11:30am

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Whether the applicant is a ‘dependent child’ – Applicant not working – Applicant relies on payments from parents to subsist

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.05A(1)(b), 1.12, Schedule 2, cls 143.311, 143.321

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 4 May 2016 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in January 1990. The visa applicant applied for the visa on 30 December 2013. The delegate refused to grant the visa on the basis that the applicant was not a dependent child, and a member of the family unit, of the primary visa applicants. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 13 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and his parents. 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 his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. Clause 143.311 requires the applicant who seeks to satisfy the secondary criteria to be a member of the family unit of a person who satisfies the primary criteria in subdivision 143.21 or of a person who has, relevantly, applied for a Class CA visa. At the time of decision, cl. 143.321 relevantly requires the applicant to continue to be a member of the family unit of the person who satisfies the primary criteria.

5. The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, it provides

   (1)      For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation 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 - LEGEND note]

   (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.

6. Dependency is defined in r. 1.05A(1)(b) which relevantly states:

   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.

   Is the visa applicant a member of the family unit of the primary visa applicants?

7. When making the application, the visa applicant claimed to be a child of the primary visa applicants. He is not seeking to meet the primary criteria for the grant of the Contributory Parent visa and the Tribunal is not satisfied on the evidence before it that the visa applicant meets the primary criteria for the visa grant.

8. As the visa applicant claims to be a child of the primary visa applicant, the Tribunal is not satisfied that he is a spouse of the primary visa applicant or a dependent child of a child. The visa applicant does not meet the definition of ‘member of the family unit’ in r. 1.12(1)(a) and (c). The Tribunal finds that subparagraphs (2) – (7) of r. 1.12 are not relevant in this case. The visa applicant must meet r. 1.12(2)(b) or (e) and in either case it is necessary to establish that the visa applicant is dependent on his parents.

9. According to the primary decision record, a copy of which the review applicant presented to the Tribunal, the visa applicant was born in January 1990. As the application for the visa was made in December 2016, the Tribunal finds that the visa applicant was over 18 years of age at the time the application was made.

10. There is no evidence before the Tribunal that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied the visa applicant is wholly or substantially reliant on the primary visa applicants for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions.

11. The visa applicant stated on the application form that he was a dependent child of his parents, who were the primary visa applicants. The visa applicant included in his application a number of statements and financial records. The delegate notes that the bank records do not evidence the source of income. The visa applicant subsequently provided a number of receipts and evidence that his parents made some deposits into his bank accounts. The delegate noted that the bank deposits were sporadic and occurred in 2013 – 2014 but there was no evidence of subsequent transfers.

12. The applicant provided a written submission to the Tribunal on 6 March 2018. The applicant states that since graduating from high school he had not been employed and he spends most of his time living with his parents, with the exception of the period between November 2010 and July 2012 when he lived in South Africa and from June 2016 when his parents migrated to Australia. The visa applicant claims his only reliance for financial support is on his parents and the applicant submitted a number of documents relating to his parents’ payment for various expenses.

13. In oral evidence the review applicant said his brother completed secondary schooling and has not done any other study before he started training as a chef around 2016. Since completing secondary schooling, visa applicant tried to find a job and also spent time at home. He also spent nearly two years in South Africa with a relative, from November 2010 to July 2012, helping run a store and learning about the business and he also helped out relatives with general jobs. The review applicant suggested that the visa applicant may have depression but there is no medical evidence to support that claim and the review applicant concedes there is no medical diagnosis. The Tribunal does not accept the visa applicant has any medical condition affecting his capacity to work.

14. The review applicant said the visa applicant had worked at factory for a brief period but the pay was low and the hours were very long, so he quit. While he was in South Africa, relatives provided the visa applicant with accommodation and food. The review applicant said that his brother brought some money with him but he did not need to spend anything.

15. The review applicant’s evidence is that since the parents travelled to Australia, they continue to pay rent and other expenses for the visa applicant. The review applicant provided to the Tribunal a number of bank statements and other payment details showing regular transfers, including transfers which they claim to be for rent. The evidence is that in recent weeks the visa applicant returned to the family home owned by his parents. The same evidence was provided by the visa applicant and the visa applicant’s parents.

16. The Tribunal has concerns about the parties’ evidence that the applicant – who is a 28 year old male – has never been gainfully employed and has been fully reliant on his parents. However, there is no probative evidence to contradict these claims.  There is documentary evidence of regular money transfers from the parents to the visa applicant. Their evidence is that before the parents travelled to Australia, the visa applicant lived with them in rented accommodation. The parties’ evidence is that the visa applicant has no income, has never worked with the exception of about a month shortly after graduating from high school and that he has been fully reliant on his parents.

17. Having considered the documentary evidence and the parties’ oral evidence, and in the absence of anything to contradict these claims, the Tribunal is prepared to accept, on balance, that the visa applicant has been wholly or substantially reliant on his parents for financial support for his basic needs for food, shelter and clothing and that his reliance on his parents is greater than his reliance on any other source. The Tribunal is satisfied that such reliance existed for at least 18 months before the application was made and continues to exist at present. While the Tribunal has formed the view that the visa applicant was not dependent on his parents during his residence in South Africa, the Tribunal is mindful that the applicant returned to China about 18 months before the application was made. The Tribunal notes that the policy refers to 12 months as a substantial period and finds that the period the visa applicant spent in South Africa was beyond the ‘substantial time’ required by the legislation.

18. On balance, the Tribunal is satisfied that at the time of the application and at the time of the decision, the visa applicant is, and has been a dependent child of his parents. The Tribunal finds he is a member of the family unit and meets cl. 143.311 and cl. 143.321.

    Conclusion

19. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 143 visa.

    DECISION

20. The Tribunal remits the application for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    · cl.143.311 of Schedule 2 to the Regulations; and

    · cl. 143.321 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member