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

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).
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.
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
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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ni (Migration) [2024] AATA 1616
Case: [2024] AATA 1616
Decision Date: 26 April 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, a child visa applicant, against a decision of the Migration Review Tribunal (MRT) to affirm the refusal of his Child (Residence) (Class BT) visa, Subclass 802. The applicant sought to establish that he was the biological child of the sponsor, Shujuan Chen, and that he was financially reliant on her and undertaking full-time study.

The primary legal issues before the court were whether the applicant had satisfied the requirements of clause 802.214(1)(c) of the Migration Regulations 1994, specifically concerning his relationship with the sponsor and his financial dependence and study commitments. A key question was whether the applicant had provided information that was false or misleading in relation to his identity and relationship with the sponsor, thereby attracting the application of Public Interest Criterion 4020.

The court considered the applicant's inconsistent statements regarding his mother's identity and date of birth across different visa applications. It found the applicant's explanations for these discrepancies to be unsatisfactory, noting that as an adult, he was responsible for the accuracy of his applications. The Tribunal concluded that the provision of incorrect information attracted the operation of PIC 4020. The court also noted the applicant's failure to provide evidence to support his claims of financial dependence and the delegate's request for a DNA test, which was not provided.

The court found that the Tribunal had erred in law by failing to properly consider the applicant's submissions and the evidence before it, particularly in relation to the study requirement. The court remitted the matter to the Tribunal for redetermination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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