Park (Migration) [2019] AATA 5440 (20 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Seong Ho Park
CASE NUMBER: 1802388
HOME AFFAIRS REFERENCE(S): CLF2017/11439
MEMBER:Helena Claringbold
DATE:20 November 2019
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 November 2019 at 2:44pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) – Subclass 802 (Child) – dependent child of sponsor – director of business – applicant undertaking work activities – false and misleading information provided – did not intentionally provided documents – information provided to assist with visa – no compelling circumstances – lack of evidence – no evidence of incapacitation – decision under review affirmed
On 19 January 2017, Mr Seong Ho Park (the applicant) applied for a Child (Residence) (Class BT) visa. The application was made on the basis that the applicant is a dependent child of Ms Eui Hang Cho, the sponsor. At the time this application was lodged, the applicant held a Bridging (Subclass WE 050) visa.
On 10 January 2018, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant is a dependent child of the sponsor or that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. Therefore, the applicant did not meet cl.802.212 of and cl.802.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The delegate was also not satisfied that the applicant met Public Interest Criteria 4020. Therefore, he did not meet cl.802.223 of Schedule 2 to the Regulations.
On 15 August 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.
On 2 September 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and her partner.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether the applicant is the dependent child of the sponsor or her partner and whether the applicant meets PIC 4020.
BACKGROUND ON THE EVIDENCE
The applicant was born in 1992 in Gang…
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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AGLC
Park (Migration) [2019] AATA 5440
Case
[2019] AATA 5440
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by the applicant, who was born in 1992, against the decision of the Department of Immigration and Border Protection. The applicant sought to establish that he was a dependent child of the sponsor, his mother, who resided in Australia. The Tribunal was required to determine whether the applicant met the criteria for being a dependent child and whether he satisfied Public Interest Criterion 4020.
The primary legal issues before the Tribunal were whether the applicant qualified as a "dependent child" of the sponsor under the Migration Regulations 1994, and whether he met Public Interest Criterion 4020, which relates to the provision of false or misleading information or documents. The definition of "dependent child" in Regulation 1.03 and the broader concept of "dependent" in Regulation 1.05A were central to the assessment, requiring consideration of financial reliance and, alternatively, incapacity for work.
The Tribunal affirmed the decision not to grant the visa. It found that the applicant, being 24 years old at the time of application, did not meet the definition of a dependent child as he was not wholly or substantially reliant on the sponsor for financial support to meet his basic needs, nor was he incapacitated for work. The evidence provided, including bank statements and translated savings deposit records, did not establish the necessary degree of financial dependency. Furthermore, the Tribunal noted that while the applicant had provided documents, there was no evidence to suggest that any false or misleading information was intentionally provided, but this did not overcome the failure to meet the core dependency criteria.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The issue in the present case is whether the applicant is the dependent child of the sponsor or her partner and whether the applicant meets PIC 4020.BACKGROUND ON THE EVIDENCE The applicant was born in 1992 in Gang Nam, Republic of Korea. He was 24 years of age on the date he lodged the application. His father is deceased and his mother, step-father and one sibling live in Australia and his other sibling lives in Singapore. The sponsor was born in1964 in Korea. She lives in Australia with her de facto partner. She has two children, one being the visa applicant and another child who lives in Singapore.Dependent child criteria 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) of Schedule 2 to the Regulations.Dependent Child 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 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. 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]. The word ‘dependent’ is defined in r.1.05A1.05A (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 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. On the 19 January 2017, the applicant lodged the application for a Child (Subclass 802) visa. The application was based on him being the dependent of the sponsor, who is his mother. He provided a letter from a bank dated 31 October 2016, for the sponsor, recording a credit balance of $22,796.08. He also provided telephone screen images which list various numbers against dates in 2016. The images are in a language other than English and cannot be read any further by the Tribunal. In a post Tribunal hearing submission the applicant provided four pages of translated documents for the telephone screen shots. These are headed ‘Saving Deposit’. They list various debit entries for 2016/2017 including as Seong Ho Airplane Debit 300,000 won, multiple entries of Land Tax (property) with varying amounts recorded alongside the entries. Other entries are recorded as Seong Ho living allowance 500,000 won, monthly rent, Mom rent 300,000. Deposit entries include private education pension payments for 1,328.700 won. There is no information on the translations about the owner of the saving deposit account or the person/s responsible for the debits or deposits. He also provided a translation of a ‘Family Relation Certificate’ dated June 2017, detailing the applicant’s birth details and parents’ details.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in the present case is whether the applicant is the dependent child of the sponsor or her partner and whether the applicant meets PIC 4020.BACKGROUND ON THE EVIDENCE The applicant was born in 1992 in Gang Nam, Republic of Korea. He was 24 years of age on the date he lodged the application. His father is deceased and his mother, step-father and one sibling live in Australia and his other sibling lives in Singapore. The sponsor was born in1964 in Korea. She lives in Australia with her de facto partner. She has two children, one being the visa applicant and another child who lives in Singapore.Dependent child criteria 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) of Schedule 2 to the Regulations.Dependent Child 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 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. 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]. The word ‘dependent’ is defined in r.1.05A1.05A (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 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.
Decision
Reasons for decision
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 The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Helena ClaringboldMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …