Ni (Migration)

[2024] AATA 1616

Ni (Migration) [2024] AATA 1616 (26 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weihang Ni

REPRESENTATIVE:  Mr Hu Siwei

CASE NUMBER:  2003769

HOME AFFAIRS REFERENCE(S):          CLF2019/9442

MEMBER:Kira Raif

DATE:26 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.212 of Schedule 2 to the Regulations; and

·cl 802.214 of Schedule 2 to the Regulations; and

·cl 802.221 of Schedule 2 to the Regulations.

Statement made on 26 April 2024 at 3:07pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – DNA parentage testing report – biological child of the sponsor – financial reliance – study requirement – undertaking full-time study leading to a formal qualification – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 802.212, 802.214, 802.221

CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 11 February 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in October 1998. He applied for the visa on 25 February 2019. The delegate refused to grant the visa on the basis that cl 802.221 was not met because the delegate was not satisfied the applicant was a dependent child of the sponsor and that he met the study requirements. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Chen. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

4. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.212.

6. The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a).

7. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations. 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.

8. 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].

9. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b). At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

10. At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

11. At the time of application, the applicant must have, 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: cl 802.214(1)(c).

12. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl 802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 802.214(2).

13. Where cl 802.214(1)(c) applies, it must continue to be met at the time of decision: cl 802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

    Primary decision

14. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was born in October 1998 and the application for the visa was made in February 2019.

15. The primary decision record indicates that the applicant was sponsored by his mother Shujuan Chen (dob 30/9/75). However, in his previous Student visa application made in 2017, the applicant declared his mother as Qinjuan Chen (dob 30/8/73). The delegate noted that with his Student visa application, the applicant provided the notarised birth certificate issued in February 2019 (around the date of the application, rather than the date of birth) declaring his mother as Shujuan Chen.

16. With respect to his study, the applicant stated on the application form that he undertook the following study

    09/14 – 01/16             Hong Kuan Fuqing Senior High School

    01/19 – 11/20             Diploma at Crown Institute of Business and Technology

17. It is noted that the applicant provided a number of CoEs with the application to demonstrate his enrolment until November 2020.

18. With respect to his finances, the applicant stated that he was supported by his mother for tuition, clothing, food and other expenses and that he had been receiving $250 per week from 1998. The delegate notes that the applicant had not presented evidence to support that  claim.

19. The primary decision record indicates that the delegate wrote to the applicant, inviting him to provide evidence of his past study, evidence of his dependence on the sponsor and to undertake a DNA test to confirm his relationship with the sponsor. It is stated that no response had been received from the applicant. In his submission to the Tribunal the applicant’s representative, WB Legal explains that the request from the delegate was ‘overlooked’ by the migration agent.

    Is the applicant the child of the sponsor?

20. The primary decision record indicates that in his earlier Student visa application the applicant gave a different name and date of birth for his mother. In oral evidence the applicant concedes that when he applied for the Student visa in 2017, he did give different details for his mother. He claims the application was prepared by other relatives through an agent and they could not explain how the mistakes were made.

21. The Tribunal finds the applicant’s answers entirely unhelpful and unsatisfactory. It is not sufficient to state ‘I don’t know’ when asked to explain the discrepancies. The applicant is an adult and is responsible for the content of his applications. In the Tribunal’s view, the provision of incorrect answers about Ms Chen’s name and date of birth, either in the present application or in relation to the Student visa which the applicant held prior to the present application was made, attracts the operation of PIC 4020. The Tribunal discussed with the applicant the operation of PIC 4020 during the hearing and invited further written submission.

22. In his submission to the Tribunal of 16 April 2024 the applicant has addressed the operation of PIC 4020 and the grounds for the waiver (claiming, essentially that he was not involved in the preparation of the Student visa application and that there are compassionate or compelling circumstances for the waiver). Ultimately, the Tribunal decided not to make a finding in relation to PIC 4020, noting that this issue was not considered by the delegate. Should an adverse decision be made in relation to PIC 4020 in the future, the applicant will have a further opportunity to seek review with the Tribunal.

23. The applicant provided to the Tribunal a copy of the DNA parentage testing report completed in June 2020. The report assessed the relationship between Weihang Ni and Shujuan Chen (dob 13/9/75). The report shows that the probability of Ms Shujuan Chen being the genetic mother of Weihang Ni has been calculated as being 99.99%. The Tribunal is thus satisfied that the applicant is the biological child of the sponsor.

    Is the applicant a dependent child?

24. As the visa applicant was born in October 1998 and the application for the visa was made in February 2019, the Tribunal is satisfied the visa applicant was over 18 but under the age of 25 at the time the application was made. There is no evidence before the Tribunal to indicate that the applicant was at any time incapacitated due to the total or partial loss of his bodily or mental functions.

25. As noted above, the delegate requested the applicant to provide evidence of his dependence on the sponsor and he had not done so. The applicant provided additional material to the Tribunal.

26. In his written submission to the Tribunal the applicant states that he had never worked full-time and has been a full-time student since turning 18 and he has been dependent on his mother and her partner. The applicant provided to the Tribunal various financial records showing the payment of tuition fees and other expenses by the sponsor or her partner.

27. With respect to his financial affairs, the applicant states that he has been residing in a rental property for the past 6 years and receives financials support from his mother. He states that he has one bank account at Commonwealth bank and uses it for his daily expenses. he calms that he does not have any source of income and does not work and receives allowance from his mother by way of bank transfers and cash, on average of $250 a week.  In oral evidence the applicant told the Tribunal that he has never worked and that he is reliant on his parents who give him $250 a week. The applicant states that he does not want to work as his mother is supporting him. The applicant repeated this evidence in his submission of 16 April 2024.

28. The applicant presented with his submission copies of several bank statements from January 2021 to the present, evidence of his educational qualifications and his mother’s bank record showing some transfers.

29. There is now more evidence before the Tribunal than was before the delegate. Relevantly, the applicant presented evidence of receiving regular financial support from his mother, which is supported by bank records. There is no evidence to suggest that the applicant had ever engaged in employment. The Tribunal is satisfied, on balance, that the applicant has no income other than the income from his mother. The Tribunal is satisfied that the applicant is dependent on his mother to meet his basic needs of food, shelter and clothing and such reliance is greater than the applicant’s reliance on any other source. The Tribunal is satisfied that the applicant is a dependent child of the sponsor.

30. The applicant was under the age of 25 when the application was made. The Tribunal finds that the applicant met cl 802.212 at the time of application, and continues to meet it at the time of decision, for the purpose of cl. 802.221.  

    Study requirement

31. The applicant was over the age of 18 when the application was made. In his written submissions to the Tribunal the applicant claims that he had undertaken the following study

    09/14 – 06/17        secondary school at Fuqing Hongkuan Middle school

    10/17 – 12/18        general English course, NSW International English College

    01/19 – 12/19        Certificate IV in Accounting and Bookkeeping, Crown Institute of Business and Technology

    01/20 – 11/20       Diploma of Accounting, Crown Institute of Business and Technology

    11/21 – 11/21        Advanced Diploma of Accounting, Crown Institute of Business and Technology

    01/22 – 11/22        Certificate IV in Marketing and Communication, Crown Institute of Business and Technology

    01/23 – (expected completion 06/24)     

    Diploma of Marketing and Communication, Crown Institute of Business and Technology

32. The applicant submits that all courses were conducted on a full-time basis and were leading to a trade, vocational or professional qualification. The applicant also states that between June 2017 and October 2017 he was studying English in China in anticipation of the grant of the visa.

33. The applicant states that he made a mistake when claiming on the application form that he completed schooling in January 2016, as he had spent the second term of that year studying for the national entrance exam, and he submits that the notarised graduation certificate is the preferred evidence.

34. In oral evidence the applicant also told the Tribunal that he completed the secondary schooling in June 2017 and he could not explain why the application form states that he completed schooling in January 2016. The applicant told the Tribunal that in the last year of school he attended school daily and was doing ‘normal study’ in the same way he was studying in the previous years. He studied Maths, English, Chinese, cultural studies and chemistry and did these subjects until he completed high school in June 2017.

35. In oral evidence the applicant gave confused evidence about his study for the national entrance exam. He told the Tribunal initially that he studied for the national entrance exam after completing high school and he then said that he was doing his high school study for the purpose of doing the national entrance exam. He could not explain why he would be preparing for the national entrance exam when he was already making plans to migrate to Australia.

36. The Tribunal has formed the view that the applicant’s written submission – claiming that he had spent a term of his high school studying towards his national entrance exam – to be inconsistent with oral evidence as the applicant told the Tribunal that until June 2017 he engaged in normal study, doing his usual subjects and that such study was no different to his earlier study. That does not suggest that the applicant had undertaken any specific preparation for the entrance exam in the last semester of his schooling as he now claims. The applicant was not able to offer a satisfactory explanation why he stated on the application form that he completed high school in January 2016 other than to state that the application was prepared by others.

37. The Tribunal is also mindful that there is clearly inconstant evidence provided about Ms Chen’s personal details in the applicant’s two visa applications. These have not been explained satisfactorily and the applicant repeatedly stated that the applications were completed by others and he had not checked the content. In the Tribunal’s view, these discrepancies reflect poorly on the applicant’s credibility and render the evidence in his application unreliable.

38. The applicant provided in his submissions to the Tribunal the CoEs and letters of completion in relation to the above courses completed in Australia. Having regard to that evidence, the Tribunal is satisfied that the applicant had been undertaking full-time study leading to a professional qualification from January 2019 and he continues to engage in such study at present.

39. The Tribunal acknowledges that the English course that the applicant undertook in 2017-18 did not lead to a professional qualification, and neither did the English study he undertook for some months in China. However, the Tribunal is satisfied that such study was instrumental to, and necessary for his ability to engage in formal study in Australia.

40. With respect to the applicant’s study in China, the Tribunal is somewhat concerned about the applicant’s indication on the application form that he had completed secondary study in January 2016 rather than 2017. In February 2024 the Tribunal wrote to the Australian post overseas seeking to verify the information about the applicant’s study. The Tribunal received a detailed response on 26 April 2024. It indicates that the overseas post contacted the local notary who issued the applicant’s notarised graduation certificate and the notary advised that he had verified the graduation certificate with the local authority before issuing the notarial certificate. The notary confirmed the applicant’s name, date of birth, name of high school, time of study, the master’s name on the certificate and the serial number of the graduation certificate. The notary also confirmed that the applicant graduated in June 2017 after three years of full-time study. The graduation certificate was considered to be a genuine document.

41. The Tribunal acknowledges that the application form contained inadequate and likely inaccurate information about the applicant’s study. There is more evidence before the Tribunal. Having regard to the applicant’s evidence and the outcome of the investigation noted above, the Tribunal is satisfied that the applicant undertook full-time study until mid-2017 before undertaking English courses. The Tribunal finds that at the time of application, the applicant had been undertaking full-time study leading to a formal qualification since turning 18, or within 6 months (or a reasonable time) after completing year 12. The Tribunal is satisfied the applicant continues to meet this requirement, and is still studying, at the time of decision. Accordingly, cl 802.214(1)(c) was met when the application was made and it also continues to be met at the time of decision.

42. There is no evidence before the Tribunal to indicate that the applicant was ever engaged to be married or that he has, or has ever had, a spouse or de facto partner. The Tribunal finds that the applicant met cl. 802.214(1)(a) and continues to meet it at present. There is no evidence to suggest that the applicant had engaged in full-time work. He met cl. 802.214(1)(b).

43. The Tribunal finds that the applicant met cl. 802.214 when the application was made and that he continues to meet that provision for the purpose of cl. 802.221.

    Conclusion

1. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

2. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

   ·cl 802.212 of Schedule 2 to the Regulations; and

   ·cl 802.214 of Schedule 2 to the Regulations; and

   ·cl 802.221 of Schedule 2 to the Regulations.

   Kira Raif
   Senior Member