Liu (Migration)
[2021] AATA 3407
•23 August 2021
Liu (Migration) [2021] AATA 3407 (23 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jian Liu
CASE NUMBER: 1825802
HOME AFFAIRS REFERENCE(S): CLF2014/41298
CLF2018/13346
CLF2018/356649MEMBER:David Crawshay
DATE:23 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criterion for a 836 (Carer) visa:
· cl.836.321 of Schedule 2 to the Regulations.
Statement made on 23 August 2021 at 11:53am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of the family unit – wholly or substantially reliant – periods of casual employment – greater reliance on the primary visa applicant than on any other person – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.05, 1.12; Schedule 2, cl 836.321CASES
Huynh v MIMA [2006] FCAFC 122
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 March 2014 as a secondary applicant based on the relationship between him and the primary visa applicant, Ms Zhiying Chen. The primary visa applicant was found to be the carer of the sponsor, Ms Jianying Chen. The delegate refused to grant the visa on 23 August 2018 on the basis that the applicant did not satisfy the requirements of cl.836.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 836.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant at the time of decision.
The applicant appeared before the Tribunal on 18 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant and the sponsor.
The 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the delegate found that the applicant was the member of the family unit of the primary visa applicant at the time of application, the issue in this review is whether he is a member of the family unit her at the time of decision and satisfies cl 836.321.
Section 5(1) of the Act provides that “member of the family unit” of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides “member of the family unit” has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.
Regulation 1.12(1), as it appeared at the time of application, provides that a person is a member of the family unit of another person (the family head) if the person is:
·the spouse or de facto partner of the family head;
·a dependent child of the family head or of their spouse or de facto partner;
·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or
·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.
In this instance, the applicant is claiming to be the son of the primary visa applicant, and it is not in contention that he is her son. The question is whether he is the “dependent child” of the primary visa applicant.
“Dependent child” is defined in r.1.03 of the Regulations, which requires that the child or step-child must not be engaged, married or in a de facto relationship, and have not turned 18 or if they have turned 18 the child must be “dependent” within the meaning of r.1.05A, or be incapacitated for work due to loss of bodily or mental functions. The applicant had turned 18 at the time of decision and therefore is unable to meet r.1.03(a) of the definition of “dependent child”.
Regarding the relationship status of the applicant, there is no evidence that he has ever been engaged, married or in a de facto relationship. In pre-hearing submissions, it was claimed that he had been single, something he repeated to the Tribunal at hearing. The Tribunal discussed with the applicant several transactions that it considered may have indicated the presence of a partner, such as two purchases at an athletic clothing store and purchases made in Daylesford. As to the former, he told the Tribunal that one purchase was a gift card for a friend’s birthday and the other was a pair of shorts for his wear; as to the latter, he told the Tribunal that he went to Daylesford with friends.
The Tribunal has considered the applicant’s explanation for these purchases, which it admits are not frequent, and accepts that they are not indicative of him having a partner. Based on this and in the absence of other evidence to the contrary, it is satisfied that he has never been engaged, married or in a de facto relationship. He therefore satisfies the requirement contained in the chapeau to the definition of “dependent child” in r.1.03.
There is no evidence that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. Therefore, he does not meet r.1.03(b)(ii) of the definition of “dependent child” and must meet r.1.03(b)(i) of that definition.
As the applicant had turned 18 at the time of decision, he must be found to be dependent on the family head or their spouse or de facto partner as required under r.1.05A, the Tribunal must be satisfied that they are “wholly or substantially” reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support.
In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is reliant for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
When considering whether the applicant is dependent on the family head or their spouse or de facto partner as required under r.1.05A, the child or step-child is considered dependent if they are wholly or substantially reliant on the other person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions. “Incapacitated for work” means the applicant must be at least substantially incapacitated for paid work. For the reasons given above, the Tribunal finds that the applicant is not incapacitated in this way and r.1.05A(1)(b) does not apply.
Before hearing, the applicant submitted a number of documents to the Tribunal through his agent. These documents included:
·submissions from the applicant’s agent dated 11 August 2021;
·statements from the applicant’s savings account ending in x4236 and transaction account ending in x6333 which span the period from 1 July 2020 to 30 June 2021;
·the applicant’s PAYG payment summary for FY2020/21 dated 9 August 2021 for work performed at an engineering firm;
·five monthly payslips showing work performed at the engineering firm in January, February, March, April and June 2021;
·a nine-month tenancy agreement for a property in the Melbourne CBD dated 1 March 2021; and
·four utility bills (combined electricity and water) for March, April, May and June 2021.
The submissions stated that during the period from 1 July 2021 to 30 June 2021, a period the agent characterised as a “substantial period” prior to the decision being made, the major source of income were incoming payments from the primary visa applicant, with the applicant only occasionally receiving employment income. The submissions stated that the applicant’s transactions were predominantly for grocery, rental, utility and occasional “takeout” payments. They stated that these transactions were “perfectly reasonable”.
The submissions stated that the applicant is single and lives alone in the CBD of Melbourne. They stated that he lives a relatively frugal and modest life, not having a car and relying on public transport. They stated that he has occasional social outings with friends.
The statements for the account ending in x4236 demonstrate that it was essentially used as a holding account, with several transfers being made between this account and the account ending in x6333. Apart from interest payments, there is no other activity.
The statements for the account ending in x6333 show that the applicant has received a total of $18,550 during that time from payments from the primary visa applicant, comprising 11 payments of between $1,400 and $2,000 which are relatively evenly spaced out over this period. The statements show that he received $1,140 from an engineering firm during this time. The PAYG statement and payslips from his employer confirm these payments (albeit that his wage for June 2021 was not paid during the period, reflecting that he is paid in arrears). Other payments include $1,842 that appears to be the return of his rental bond, $1,979 from the ATO that appears to be a tax return, and $47.38 from iiNet that appears to be a refund on an earlier payment.
In terms of payments made from the applicant’s accounts, the statements show that around $14,700 was paid in rent and bond. The tenancy agreement submitted pre-hearing confirms the monthly rental for March 2021 onwards. Added to this was around $560 for utilities and other payments such as for a pre-paid mobile and internet. The utility bills substantiate the payments made from the applicant’s account, at least in relation to utility payments from March 2021 onwards.
Having considered the payments in and from the applicant’s accounts, the Tribunal finds that he is left with around $8,300 over the period from 1 July 2020 to 30 June 2021, or around $160 per week or $23 per day. Other transactions from that period include numerous made at supermarkets, grocery stores, restaurants and some entertainment venues.
At hearing, the Tribunal asked the applicant if he still operated two other accounts that he had been using previously – one was a visa card account ending in x5981, the other a savings account ending in x6128 – over the period from July 2020 until recently. Regarding the visa account, he replied that he had been paying off its debt every month. After consulting his internet banking, he said that the debt was currently $232. As to the savings account, he said that he did not operate that account anymore and had not used it since 2017 or 2018. The Tribunal asked him if he had any jobs over that period other than the drafting job for which he was paid a salary into his transaction account, and he replied that he did not.
The Tribunal asked the applicant to provide evidence post-hearing that showed the transactions made from the accounts ending in x5981 and x6128 from 1 July 2020 until recently or, if any of the accounts was closed down before that date, evidence of such closure. It also asked him to submit statements from his other two accounts ending in x4236 and x6333 for the period from 1 July 2021 until recently.
Over the course of the next week, the applicant submitted statements from all accounts such that it had information relating to the period from 1 July 2020 until 18 August 2021.
The Tribunal has considered the documents submitted post-hearing. The statement in relation to the account ending in x6333 shows two wage payments totalling $600 for the month of July as against three transfers of money from the primary visa applicant totalling $3,750. Rental and utility payments continued to be made by the applicant in the amounts claimed by him.
The statement in relation to the account ending in x4236 shows that it continued to be used as a holding account, with the only activity being transfers being made to and from the account ending in x6333 as well as interest payments.
The statement in respect of the account ending in x5981 shows transfers being made into the account but no transfers out. Through cross-referencing these transfers, it is clear that they were made from the applicant’s account ending in x6333.
Finally, the statement relating to the account ending in x6128 shows three dividend payments and three cheque deposits. In all, these deposits and interest payments total $2,206.36 over the period. No withdrawals or transfers were made. The accompanying email stated that this account has been operated by the primary visa applicant in order to buy shares as she was unable to open an account in 2007. The Tribunal has not assessed the veracity of this claim as it is unnecessary to do so – as it stands, the amount of money that was derived from this account is not enough to affect the Tribunal’s conclusion below in relation to the level of reliance the applicant has on the primary visa applicant.
Based on this evidence, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant only uses the account ending in x6333 for purchases and that he receives the vast majority of his income through that account. In this way, it accepts that the bank statements presented are an accurate reflection of his income and outgoings.
Having made this finding, it is clear that the applicant has received substantially more money from the primary visa applicant than from all other sources, either individual or combined, during the period from 1 July 2020 to 18 August 2021. These other sources include the engineering firm for which he occasional works and several other sources who have contributed only modest amounts. The Tribunal accepts that the money from the primary visa applicant is used to pay rent, for utilities such as water, electricity, internet and for his mobile telephone. It accepts that the balance of this money is used to pay for groceries, department store purchases and other entertainment costs, some of which would logically include food. It finds it plausible that the applicant could subsist on this money for food and clothing without having to draw on other funds given his modest lifestyle and the effects of the COVID-19 pandemic on his social life.
The Tribunal has considered the evidence in front of it. Having considered this evidence and made the above findings, it accepts that the applicant has been substantially reliant on the primary visa applicant for financial support at the time of this decision and for a substantial period immediately before this decision and that the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter. The Tribunal also accepts that the applicant’s reliance on the primary visa applicant is greater than their reliance on any other person or source of support, including wages from his job.
Therefore, the Tribunal finds that the applicant meets r.1.05(1)(a) and is the dependent child of the primary visa applicant. Because he is the dependent child of the primary visa applicant, he is a member of the family unit of her under r.1.12(1)(b).
As the applicant continues to be a member of the family unit of the primary visa applicant at the time of this decision, he meets cl.836.321.
DECISION
The Tribunal remits the application for a Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a 836 (Carer) visa:
·cl.836.321 of Schedule 2 to the Regulations.
David Crawshay
Member1.12 Member of the family unit
(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 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.
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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