Lyu (Migration)

[2020] AATA 6110

Lyu (Migration) [2020] AATA 6110 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms SongQing Lyu

VISA APPLICANT:  Mr LiXian Bai

CASE NUMBER:  1824625

HOME AFFAIRS REFERENCE(S):          OSF2017/019091

MEMBER:Roger Maguire

DATE:30 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 30 July 2020 at 3:48pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – wholly or substantially reliant on the sponsor for financial support – dependent child of the sponsor – visa applicant over 18 years – full-time study – family dispute at time of interview – visa applicant’s temporary and casual work – gap in sending money – studies ceased – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.213, 101.221; rr 1.03, 1.05

CASES

Huynh v MIMA [2006] FCAFC 122
Sylvia Opoku-Ware v Minister for Immigration and Border Protection and Migration Review Tribunal [2015] FCCA 1638

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 Home Affairs on 28 June 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 June 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101. 211 which in this instance, relevantly, requires the applicant to be a dependent child of the holder of a permanent visa and have not turned 25 years of age. The requirement that the child have not turned 25 does not apply to an applicant who at the time of making the application was incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The criteria also include cl. 101.213 which requires where the applicant has turned 18, that the applicant is not engaged to be married, and does not have a spouse or de facto partner, and has never had a spouse or defective partner, and is not engaged in full-time work. There is a further requirement provided in cl. 101.213 (1) (c) that the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The requirement is that the applicant is still studying at the time of the decision in respect of the visa. Were it otherwise, a visa applicant could also marry a partner, move in with them and cease studying immediately after lodging a visa application, yet still be entitled to the visa: Sylvia Opoku-Ware v Minister for Immigration and Border Protection and Migration Review Tribunal [2015] FCCA 1638 at [78-79]. Regulation 1.05A(1)(a) requires that in order to establish that the applicant is a dependent of the sponsor at a particular time, the applicant must have been for a substantial period immediately before that time, wholly or substantially reliant on the sponsor for financial support to meet the applicant basic needs for food, clothing and shelter, and that the applicant’s reliance on the sponsor is greater than any reliance by the applicant on any other person, or source of support, for financial support to meet the applicant basic needs for food, clothing and shelter. Alternatively, r.1.05A(1)(b) provides that the applicant might be found to be wholly or substantially reliant on the sponsor for financial support because the applicant is incapacitated for work due to the total or partial loss of the applicant bodily or mental functions.

4. The delegate refused to grant the visa on the basis that cl.101.211(1) was not met because the delegate was not satisfied that the applicant had been wholly and substantially reliant on the sponsor for financial support to meet his basic needs.

5. The review applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Bai Lixian. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements of cl. 101.211 and 101.213 at the time of application, and if so whether the applicant meets the requirements of cl. 101.211 and 101.213 at the date of this decision.

   Evidence before the Tribunal

9. The Tribunal has had regard for the Department of Home Affairs file as well documents provided by the primary review applicant as follows:

   -A statement signed by the review applicant dated 10 June 2019;

   -A statement signed by the review applicant dated 24 July 2020;

   -A statement signed by the visa applicant dated 14 June 2019;

   -A statement signed by the visa applicant dated  17 July 2020;

   -A statement signed by Zhixin Lyu, father of the review applicant, dated 14 June 2019;

   -A statement signed by Zhixin Lyu, father of the review applicant, dated 17 July 2020;

   -Submissions of the authorised representative dated 17 June 2019;

   -A copy of a Financial Account Transaction History (original accompanied by English translation) for the period 1 January 2014 to 30 June 2014;

   -A copy of a Bank Statement (Translated and Original) for the period 7 March 2014 – 31 December 2017;

   -Bank statements of the review applicant;

   -Bank statements for the visa applicant;

   -Receipts for Foreign Money Exchange;

   -Notice of Assessments for review applicant (2018 and 2019);

   -A copy of a letter from Guangdong Gaozhou Agriculture School dated 17 June 2019 (accompanied by English translation);

   -A copy of a letter from Guangdong Gaozhou Agriculture School dated 16 July 2020 (accompanied by English translation);

   -Academic Transcripts (Original and Translated) from Guangdong Gaozhou Agriculture School;

   -Letter of Employment from Gaozhou People's Hospital dated 3 July 2020; and

   -Redundancy Letter to the review applicant dated 27 March 2020.

   Dependent child criteria

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

    Dependent child

11. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

12. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

13. The sponsor told the Tribunal that everything submitted to the Tribunal on her behalf was true and correct as at the date of the hearing.

14. The sponsor said that she had paid all the applicant’s living expenses up until the present.

15. The sponsor said that she told the delegate that she was alone in Australia and she did not need the applicant anymore, as they had argued shortly before the conversation with the delegate. She said she was quite impulsive when she spoke to the delegate and said that her son had been independent, when as a matter of fact the applicant had been relying on the sponsor. The sponsor said that they had argued because her son did not want her to come to Australia.

16. The sponsor said that the applicant and her son had been studying, and living with his grandparents. From 2012 to 2018 her son had been studying Agriculture and animation design. He finished studying in July 2018, and she has continued to support him since he finished studying. Since he finished studying he has not been doing anything aside from some odd jobs. He has had temporary jobs, for example delivery of materials from a warehouse to different departments of a hospital, as well as working at KFC, and the money is not enough for his expenses. He also did a job of internet management. He has been considering going to university but her mother’s health had been deteriorating during this time. This claim was not supported by any medical evidence before the Tribunal and the Tribunal gives this evidence little weight. The sponsor said that because of her mother’s death on 11 November 2018 she could not work in Australia while she was visiting and was not able to pay the tuition fees for her son and she stopped giving money to the applicant from 2018 to 2019, as her mother’s expenses were quite high and she was not able to afford his expenses in the University. She said that she did not give him money during 2018, or 2019. The sponsor said that she gave cash to the applicant during 2018, as she went back to China a few times. The sponsor said that she did not give him money in 2019, as she was busy with her work and did not send him money.

17. The sponsor said that in May 2020 she had sent the applicant nearly 16000 RMB in the last twelve months, which is between three and four thousand Australian dollars. This money is sent to her father as her son spends money carelessly.

18. The applicant told her that he had received an offer from a university in July 2019, but has not started the course owing to Covid-19.

19. The sponsor said that the visa applicant gave the delegate a false impression that he had been living independently.

20. The visa applicant gave evidence and said that he did not have anything further to say to the Tribunal beyond the material submitted.

21. He confirmed that everything submitted to the Australian Government and the Tribunal is true and correct as at the date of the hearing.

22. The applicant confirmed that his birthday is 17 August 1995, and that the sponsor is his biological mother.

23. The applicant said that he was wholly or substantially financially dependent on his mother.

24. The applicant said that he is not engaged to be married, and has never had a spouse or de facto partner. He finished his study course in July 2018.

25. Since that time he has done temporary work at KFC from July 2018 for five months, and the number of days varied, up to 3 or 4 days per week. After that he stayed home and read books and played games until October 2019 when he took a job as a temporary worker at the local hospital, where he is still working.

26. The applicant agreed that his mother did not send him money during 2018, and 2019, but sent him money in May 2020.

27. The applicant said that he was quite healthy and has no problems. He did not claim to be incapacitated for work by reason of bodily or mental functions.

28. The applicant said that he continues to live with his grandfather.

29. The sponsor expressed concerns that the Tribunal might have been given inconsistent evidence. The sponsor said that she took cash with her to China, but she had no evidence to support that.

30. The Tribunal has considered whether the applicant was a “dependent child” of the sponsor.

31. In order to find that the applicant was a dependent child of the sponsor for the purposes of r.1.05A, it is necessary for the Tribunal to consider whether, as at the date of the visa application, 7 June 2017, the applicant had been wholly or substantially dependent on the sponsor for financial support to meet the applicant’s basic needs for food, clothing and shelter (hereinafter referred to as “necessities”) for a substantial period immediately prior to the application, and that the applicant’s reliance on the sponsor was greater than his reliance on any other person or source of support to meet those needs.

32. There is limited evidence of the applicant’s financial reliance on the sponsor during the twelve months prior to the visa application. There is evidence of remittances by the sponsor to her father of sums of $1,000 in September 2016, and January 2017. There is very little verifiable evidence as to how this money was actually applied. There is no evidence before the Tribunal to show any significant change in the costs of the applicant’s necessities during the twelve months prior to the visa application, and the twelve months after. There is evidence of transfer of larger sums by the sponsor to her father in July and December 2017, and again in January 2018, but again, there is little verifiable evidence as to how this money was disbursed. If all of these sums were in fact applied to meet the applicant’s necessities, the Tribunal notes the sums sent in from July 2017 to January 2018 were more than three times the verifiable amount sent during the twelve months prior to the visa application. Assuming consistent cost of necessities, this raises a strong doubt in the Tribunal’s mind as to whether the applicant was in fact “wholly or substantially” dependent on the sponsor during the twelve months prior to the visa application.

33. The Tribunal accepts that the sponsor took sums of cash with her to China during 2018, however once again there is a difficulty in verifying how those funds were disbursed. The Tribunal notes that the sponsor told the Tribunal that her mother’s health deteriorated during 2018, and she passed away on 11 November that year. The sponsor also referred to the expense associated with her mother’s deteriorating health, in a way which suggested to the Tribunal that she may have been contributing to those expenses. This places a question mark over the extent to which the applicant was the beneficiary of the cash taken to China by the sponsor.

34. The Tribunal accepts that the applicant is the biological son of the sponsor, and that he was born on 17 August 1995, and that he is not incapacitated for work. The Tribunal finds that the applicant does not meet the definition of “dependent” in r.1.05A(1)(b).

35. The Tribunal accepts that the sponsor is the holder of a permanent visa, and that this satisfies cl. 101.211(1)(a)(ii).

36. The Tribunal finds that as at the date of the visa application, 7 June 2017, the applicant was over the age of 18 years, was not engaged to be married, and had never had a spouse or de facto partner. The Tribunal accepts that this continues to be the case.

37. The Tribunal accepts the applicant’s evidence that he ceased study in July 2018, and has intermittently worked since that time, and (other than an uncertain amount of cash) received no money from the sponsor during 2018, or 2019, and only received a further payment during May 2020. The Tribunal notes that this is generally consistent with the sponsor’s evidence.

38. Having regard to all of the foregoing evidence, the Tribunal is not satisfied that the applicant meets r.1.05A(a)(i) and r.1.05A(a)(ii), either at the date of application, or the date of this decision. Accordingly, the Tribunal is not satisfied that the applicant met cl.101.211(1) as at the date of the visa application, or the date of this decision.

39. The Tribunal notes that, whilst it has been submitted that the Gaozhou Agriculture School is equivalent to Year 12 in the Australian education system, the submission did not attach evidence to support such a finding by this Tribunal. Even if this is the case, there is no evidence that the applicant has undertaken any further study since completing that schooling, and the applicant does not appear to meet cl. 101.213(1)(c).

40. Accordingly, cl.101.211(1)(a) is not met at the time of application, and is not met at the time of decision.

41. For the reasons above, the criteria in cl.101.211 and cl.101.221 (2)(a) are not met.

42. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

43. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Roger Maguire
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child’s bodily or mental functions.

    1.05A Dependent

    (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.

    …