Or (Migration)

[2022] AATA 2036

Or (Migration) [2022] AATA 2036 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun Fai Or

CASE NUMBER:  2014456

HOME AFFAIRS REFERENCE(S):          CLF2019/29832

MEMBER:Helena Claringbold

DATE:20 June 2022

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 20 JUNE 2022 AT 8:07AM

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – Procedures Advice Manual, version 3 (PAM 3) – whether wholly or substantially reliant on the sponsor for financial support – reliance on grandmother and father for financial support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cl 802.212

CASES
Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 17 July 2019, Mr Chun Fai Or also known as Mr Zhen Hui Ke (the applicant), applied for a Child (Residence) (Class BT) (Subclass 802) visa. The application was based on him being the dependent child of Ms Fu Gui Chen, the sponsor.

2. On 17 September 2020, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant met cl.802.212 and cl.802.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) made under the Migration Act 1958 (Cth) (the Act). On 25 September 2020, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. On 9 March 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was assisted by the services of an interpreter in the English and Cantonese languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Home Affairs’ case file and the Tribunal’s case file and the evidence at the Tribunal hearing before coming to its decision.

   ISSUE

   The issue in this case is whether the applicant, for a substantial period before the relevant time, was dependent on the sponsor or her spouse.

   BACKGROUND ON THE EVIDENCE

6. The applicant was born in 1998 in Chongqing, China. His father Mr On Chi Or, also known as Mr Zhi An Ke, lives in Hong Kong, China.  His mother, stepfather and half-brother live in Australia. The applicant did not declare any partner relationships.

7. The sponsor was born in 1975 in Chongqing, China. She declared her partner as Mr Xiao Gang Chen.  She also declared having a child who was born in 2018. Mr Chen and the child live in Australia. On 3 June 1998, Mr Chen became an Australian citizen by grant. On 11 April 2019, the sponsor was granted a Subclass 801 partner visa. She was sponsored in that application by Mr Chen.

   Dependent child criteria

8. The criteria in cl.802.212 of Schedule 2 to the Regulations 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) of Schedule 2 to the Regulations.

   Dependent child

9. 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, 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.

10. 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].

    Regulation 1.05A: dependent

11. Regulation 1.05A(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.

12. Although the Tribunal is not bound by policy, the Procedures Advice Manual, version 3 (PAM 3), at the relevant time, provides the following guidance on assessing dependent and dependency:

    For children over 18 years of age, to be considered dependent in accordance with r.1.05A, a person must in the first instance be wholly or substantially reliant on another person for financial support.  There are no other grounds for claiming dependency.

    Only financial support for basic needs of food, clothing and shelter counts. In assessing dependency, if a person is earning an income or receiving a benefit, that income should be attributed hypothetically to basic needs first.

    If that amount is sufficient to provide for most of the person's basic needs, the person cannot be considered to be wholly or substantially reliant on the other person for basic needs, even though there may be a claim that the family head is actually providing food, clothing and shelter and their own income is actually used for ‘extras’.

    The term 'basic needs' refers to lower order needs that a person must sustain. These are prescribed at regulation 1.05A as food, clothing and shelter. The term does not encompass luxuries and discretionary consumption goods or higher order needs. This is implicit in the common understanding of the term.

    A ‘substantial time’ is taken to be at least 12 months.

    ‘Wholly’ and substantially have their usual dictionary meaning:

    ‘wholly’ means entirely i.e., in every respect and

    ‘substantially’ means in great degree in respect of matters that are of real importance and value.

13. The Tribunal told the applicant that it will consider a substantial time to be from 17 July 2018 to 17 July 2019. This is in keeping with the time considered by the delegate.

14. There is no information before the Tribunal that the applicant, who was born in 1998, is not the child of the sponsor.

15. There is no evidence that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. Therefore, the visa applicant does not meet reg.1.05A(1)(b).

16. At the time of application on 17 July 2019, the applicant was 20 years old and as such had turned 18. Therefore, he needed to meet the definition of ‘dependent child’ as defined in reg.1.03 and ‘dependent’ as defined in reg.1.05A.

17. The applicant is required to demonstrate that for a substantial period, immediately before the time of application, he had been wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter. In addition, the visa applicant’s reliance on the sponsor for his financial support must be greater than his reliance on any other person or source for financial support to meet his basic needs for food, clothing and shelter.

18. The composition of the applicant’s family is as follows:

    ·Paternal grandmother – Ms Pak Mui Tang, who lives in Hong Kong, China.

    ·Father – Mr Chi On Or also known as Mr Zhi An Ke, who lives in Hong Kong, China.

    ·Mother – Ms Fu Gui Chen, who lives in Australia.

    ·Stepfather – Mr Xiao Gang Chen, who lives in Australia.

    ·Half-brother – who lives in Australia.

19. On the visa application form, the applicant declared that from June 2009 until May 2019 he lived at Tsui Ping Est, PH 10 Kwun Tong, KLN Hong Kong.  

20. On the visa application form at question 42, the applicant declared that from July 1998 the sponsor provided him HKD 500 a week for food, clothing and tuition and his father also provided some support for food, accommodation and tuition.

21. In a letter dated 27 July 2020, the applicant stated the following: prior to his arrival in Australia, he was supported by his parents lived with his father in Hong Kong. His grandmother provided accommodation and cooked food for him and his mother paid for his tuition.

22. The applicant’s letter continued and he stated that in July 2017, when he was 19 years old, he graduated from Po Chu Catholic Secondary School, Hong Kong.  From September 2017 to May 2019, he studied for a Diploma of Applied Science, in Hong Kong which he completed in May 2019. In July 2019, he commenced study at the Australian Academy of Commerce for a Certificate in Business. In October 2019, he transferred to Richmond Business School studying for a Diploma in Business.

23. On 7 September 2020, the representative provided the Department with a copy of a lease for the property where the applicant lives issued by the Hong Kong Government. The lease recorded the applicant’s grandmother as the tenant of the property.  The applicant’s father is recorded as her son and the applicant is recorded as her grandson. Noted on the document is that the applicant was ‘added when 11’ and the year when he was added is faint but appears to be 2009.  

24. Commonwealth Bank transaction lists for account ending 2104 are in the sponsor’s and her partner’s names and are dated 8 July 2018 to 8 July 2019.  They record various credit and debit transactions.  However, do not give any insight into how the sponsor financially supported the applicant. Lists dated 1 July 2019 to 8 July 2020 record various transactions.   Transactions noted as ‘Transfer to other bank NetBank payment’ on 8 January 2020 for $1,500 and another on 23 March 2020 for $1,500 are noted in red ink with ‘school fee’.

25. ANZ Access Advantage Statements for account ending 1582 are in the sponsor’s name. A statement dated 16 October 2018 to 13 December 2018 recorded a withdrawal transaction ‘ANZ international banking funds transfer’ dated 12 November 2018 for $2,018 noted in handwriting as ‘To Hong Kong son is in Hong Kong’. A statement dated from 14 June 2019 to 30 September 2019 records withdrawal transactions on 11 July 2019 ANZ internet banking payment 332575 ‘To Chun Fai Or’ for $2,000 noted in handwriting ‘To son’s acct’. Another withdrawal transaction on 19 August 2019 for $1,000 via ANZ internet banking payment 670802 ‘to Chun Fai Or’ stated in handwriting ‘To son’s account’.

26. ANZ Access Advantage statements for account ending 9402 are in the applicant’s name and are dated 8 July 2019 to 8 January 2020. These deposits on 11 July 2019 for $2,000 and 19 August 2019 for $1,000 both noted as payment from the sponsor. A deposit on 16 December 2019 for $1,700 and on 8 January 2020 for $300 are noted as ‘Payment from Mum’ or ‘Payment from Mom’ and are not recorded on the sponsor’s bank statements. Multiple debit transactions are made against card 4011.

27. The applicant told the Tribunal the following: he moved in to live with his grandmother in 2009 and continued living with her until he came to Australia in May 2019. The sponsor and his biological father were responsible for the rent. His grandmother didn’t have an income but withdrew money from the sponsor’s bank account. The sponsor paid for the applicant’s food, clothing and accommodation. He then said that his biological father didn’t support him. He worked and rarely interacted with the applicant.

28. The Tribunal discussed with the applicant the information he provided as part of the visa application as detailed on the visa application form where he declared that his father also provided some support for food and  accommodation.  The Tribunal discussed the information the applicant provided in his letter of 27 July 2020, where he stated that prior to his arrival in Australia he was supported by his parents. He lived with his father and his grandmother provided accommodation and cooked for him and his mother paid for his tuition. The applicant responded and stated that the documents were completed by his previous representative who may have misunderstood. His grandmother withdrew money from the sponsor’s bank account and when he needed money his grandmother would give it to him and everything was paid for from the sponsor’s bank account.

29. The sponsor told the Tribunal the following: her relationship with the applicant’s father was not good. He didn’t support the family. The applicant’s grandmother looked after the applicant but she paid for the applicant’s food, clothing, accommodation and schooling. On 30 May 2019, the applicant came to Australia and is living with the sponsor and her husband and child. She and her husband provide the applicant’s food, clothing and accommodation.

30. The Tribunal put information to the applicant under s. 359AA of the Act. He was told the relevance and consequence of the information. He was invited to comment on or respond to the information and told he could seek additional time to comment or respond. The applicant sought and was granted additional time to respond. The information put to the applicant is as follows:

    ·The sponsor told the Tribunal the following prior to her coming to Australia in 2014, she lived with the applicant and his grandmother and father. In 2012,  she moved out and lived alone but visited the applicant. This information was put to the applicant as it is inconsistent with his evidence that prior to the sponsor coming to Australia he lived with her and his father and grandmother.

    ·The sponsor told the Tribunal the following: she paid HKD 3,000 per month for the applicant’s food, clothing and accommodation. Prior to her coming to Australia she gave the applicant’s grandmother the HKD 3,000 in cash. After she came to Australia, she gave the grandmother her bank card. This information was put to the applicant as it is inconsistent with his evidence that his monthly costs for food, clothing and accommodation was approximately HKD 4,500 with food costing perhaps HKD 1,000, clothing costing between HKD 500 to HKD 600 and rent/accommodation costing HKD 3,000.

31. In a post Tribunal hearing statement dated 9 March 2022, the applicant stated the following: He went to bed before the sponsor and his father returned home but he would often see them at home. He felt that although the sponsor and his father did not often return home for the night their relationship had not broken down and they still lived with him. Even though in the morning when he awoke they were not in the home, in the evening before he went to bed they were home. The sponsor paid his grandmother HKD $3,000 this included HKD $2,000  for food, clothing and accidental expenses and HKD $1,000 for rent.

32. The applicant continued and stated the following: the visa application form was signed by him. He told the representative that he was supported by the sponsor. After completing the form, the representative read it back to him and used the word ’mother’. The word he declared on the form was ‘parents’ and it should have been ‘parent’.  He relied on the representative and signed the form.

33. The Tribunal accepts that the sponsor transferred $2,000 on 11 July 2019 and $1,000 on 19 August 2019 to the applicant.  The transactions are recorded as withdrawals on the sponsor’s bank transaction list and recorded as credits into the applicant’s bank account on the same dates. However, other than the transactions noted for school fees, the banking information does not demonstrate that the sponsor transferred any other money to the applicant or that his grandmother withdrew money from the sponsor’s bank account. In addition, the applicant stated that the sponsor provided him HKD 500 dollars, (which is between AU$86-$90 from July 1998 to at least the date of the visa application, but there is no independent evidence such as bank documents to support this. The applicant provided inconsistent information about who paid for his food, clothing and accommodation during the relevant time.  As part of the visa application, he declared that he was supported by his parents. He lived with his father who gave him some support for food and accommodation and his grandmother provided accommodation and cooked for him and the sponsor paid for his tuition. However, he told the Tribunal that his parents were responsible for the rent and then stated that the sponsor paid for his food, clothing and accommodation. He gave inconsistent information to that of the sponsor about living with the sponsor prior to her coming to Australia.  He gave inconsistent information to that of the sponsor about the cost of his food, clothing and accommodation. The Tribunal does not accept the argument that the representative may have misunderstood the information provided or that he read back to the applicant information but entered different information on the application form,  because the applicant signed the visa application form declaring among other things that the information, he supplied in the visa application was complete, correct and up to date in every detail and that he had read and understood the information supplied to him in the application. There is independent evidence to support that the applicant lived with his grandmother from when he was 11 years old and also lived with his father until he departed for Australia in May 2019.

34. The Tribunal is satisfied that after the applicant entered Australia in May 2019, the sponsor may have provided financial support for the applicant’s basic needs for food, clothing and shelter because, on the evidence the applicant was living with the sponsor for approximately one and a half months during the 12 months prior to the time of the visa application.

35. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. The Tribunal finds that at the time of application and for a substantial period immediately before that time, being for approximately 10 and a half months, the applicant lived with his grandmother who provided him with accommodation to meet his basic need for shelter and she cooked for him. The Tribunal accepts that his father provided for his basic needs of food and shelter.  It accepts that at the time of application and for a period immediately before that time, for approximately one and a half months the sponsor may have financially supported the applicant for his basic needs.  However, because of the inconsistent information and lack of independent information, the Tribunal  does not accept that the sponsor was the person that the applicant was wholly or substantially reliant on for his basic needs of food, clothing and shelter. It does not accept that for a substantial time immediately before the time of application, the applicant was wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter.  It does not accept that the applicant’s reliance on the sponsor was greater than his reliance on his grandmother and father for financial support to meet his basic needs of food, clothing and shelter.

1. Overall, the Tribunal is of the view that the applicant at the time of application and for a substantial period immediately before that time has been wholly or substantially reliant on his grandmother and father for his basic needs for food, clothing and shelter. The Tribunal is not satisfied that for a substantial period immediately before the time of visa application, the applicant was wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter.  It is not satisfied that the applicant’s reliance on the sponsor was greater than his reliance on any other person or source of support, for financial support to meet his basic needs for food, clothing and shelter. Therefore, at the time of application, the visa applicant does not meet regs.1.05A(1)(a)(i) and (ii).

2. Accordingly, at the time of application the applicant does not meet cl.802.212 of Schedule 2 to the Regulations and this provision continues not to be met at the time of decision.

3. As the Tribunal has found that at the relevant time the applicant was not dependent on the sponsor it has not gone onto consider the other criteria for the grant of the visa.

4. Accordingly, cl 802.212(1)(a) is not met at the time of application and continues not to be met at the time of decision.

5. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

   Helena Claringbold
   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.

   …

   step-child, in relation to a parent, means:

   (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

   (b)a person who is not the child of the parent but:

   (i)       who is the child of the parent’s former spouse or former de facto partner; and

   (ii)      who has not turned 18; and

   (iii)     in relation to whom the parent has:

   (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

   (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

   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.