O'Brien (Migration)

[2018] AATA 2643

O'Brien (Migration) [2018] AATA 2643 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Christopher Shane O'Brien

VISA APPLICANT:  Mr Shuai Zeng

CASE NUMBER:  1723635

DIBP REFERENCE(S):  2016037231

MEMBER:Nicholas McGowan

DATE:12 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Subclass 445 Dependent Child visa for reconsideration, with the direction that the applicant meets cl.445.211 of Schedule 2 to the Regulations.



Statement made on 12 June 2018 at 12:30pm

CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent child) – Definition of dependent child –Reliance on other person for support – Son of visa holding parents – Substantial financial support by visa holding parent – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s
Migration Regulations 1994 (Cth), r 1.05, Schedule 2 cl 445.211

CASES
Huynh v MIMA

[2006] FCAFC 122

WRITTEN STATEMENT OF DECISION

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 September 2017 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 November 2016.

3. The Tribunal invited the sponsor and applicant to a public hearing in Melbourne on 3 May 2018 to present arguments and evidence.

4. The applicant is a 19 year old male from and residing in Changsha, Hunan province. The applicant is the biological child of Mr Zhao Liji and Mrs Shen Yuepeng according to the notarized birth certificate and corresponding identification provided by each of his parents. Mr Christopher O’Brien, who’s an Australia born citizen residing in Melbourne, sponsored the applicant’s mother Mrs Shen Yuepeng for a temporary marriage visa in January 2014. They married in Melbourne on 24 January 2015. His wife was then granted a temporary partner visa on 24 June 2015 on the basis of their married relationship.

5. The applicant claims to be a student at the time of application and is dependent on his mother to meet his basic needs.

6. ‘Dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter.

7. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

8. The issue in the present case is whether the applicant meets the definition of a dependent child within the meaning in the regulations.

Is the applicant a dependent child of the visa holding parent?

1. The applicant provided with the application evidence of being the child of the visa holding parent. The Tribunal is satisfied that the applicant is the son of the visa holding parent (and primary applicant). The Tribunal also accepts the applicant is a step child of the sponsor who is his mother’s husband.

2. Based on the applicant, sponsor and his wife’s oral evidence and all the documentation on file, the Tribunal is satisfied of the following facts.

3. The applicant is currently studying full-time as a student of Hunan Mass Media Vocational and Technical College. He has studied there since September 2016. He is not engaged or married. He lives in the dormitory when studying and during weekends or semester breaks lives with his grandparents. The father of the applicant paid the applicant’s study costs upfront, which involved a single payment of 5,000RMB which included tuition and dormitory expenses. The father’s payment of these fees is consistent with his agreement with his ex-wife upon their divorce. The Tribunal is of the view that any fair assessment of that money would logically concluded that that payment should be viewed as a joint contribution to the applicant’s study as it is a product of their respective divorce settlement. Further, and importantly in this case, the applicant’s mother states and the Tribunal is satisfied from all the evidence, that she alone provides financially for her son’s living expenses which amount to around 200RMB per month. The applicant works as a casual employee of a restaurant. When he does this work he earns around 100RMB per day. His work schedule varies according to his study commitments and is irregular.

4. After careful consideration of all the evidence now before the Tribunal, it accepts the visa holding parent has been sending funds to the applicant for a substantial period of time.

5. The Tribunal accepts that the applicant uses such funds for his basic needs. The Tribunal accepts that the applicant cannot meet the cost of these needs without the support he receives from his mother, the visa holding parent. The Tribunal is satisfied that the applicant's reliance on his visa holding mother is greater than his reliance from any other source including the payment for his studies ( a portion of which his father contributed) and including his own small income from a casual job when he works.

6. Whilst the Tribunal acknowledges that this application provided limited evidence at the time of application, the Tribunal has the advantage of further documentary and oral evidence and is satisfied that the applicant is, and has been for a substantial period immediately before the time of decision, substantially reliant upon the primary visa applicant for financial support to meet his basic costs of food, clothing and shelter; and that his reliance on the primary visa applicant is greater than any other reliance.

7. Given the above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

DECISION

1. The Tribunal remits the application for a Subclass 445 Dependent Child visa for reconsideration, with the direction the applicant meets cl.445.211 of Schedule 2 to the Regulations.