Sun (Migration)

[2022] AATA 1925

Sun (Migration) [2022] AATA 1925 (28 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yini Sun

REPRESENTATIVE:  Ms Vivian Halisai Lim (MARN: 1463692)

CASE NUMBER:  2104541

HOME AFFAIRS REFERENCE(S):          CLF2018/368324

MEMBER:Steven Griffiths

DATE:28 January 2022

PLACE OF DECISION:  Adelaide

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(1)(a) of Schedule 2 to the Regulations; and

·cl 802.215(b) of Schedule 2 to the Regulations; and

·cl 802.221(1) of Schedule 2 to the Regulations; and

·cl 802.225 of Schedule 2 to the Regulations; and

·cl 802.226 of Schedule 2 to the Regulations.

Statement made on 28 January 2022 at 3:50pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child criteria – approved sponsorship – legal permission for child’s removal – consent from biological father – Agreement Concerning Maintenance Relationship Alteration – renouncement of all parental rights – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 802.212, 802.215, 802.221, 802.225, 802.226; Schedule 4, PIC 4017

CASES
Huynh v MIMA [2006] FCAFC 122

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 25 March 2021 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, Miss Yini Sun, applied for the visa on 21 December 2018 on the basis of her relationship with the sponsor, Mrs. Victoria Chen Toyama, who is her mother. 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).

3. 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. cl 802.225 and if public interest criterion 4017 has been met.

4. The delegate refused to grant the visa on the basis that cl 802.225 was not met because they did not accept that the biological father of the applicant had given permission for the applicant to migrate permanently.

5. The parties were represented by their migration agent Vivian Lim, of V Migration Pty. Ltd.

6. The sponsor appeared before the Tribunal on 28 January 2022 to give evidence, respond to questions and present arguments, with the visa applicant, who is 12 years old, also providing oral evidence. The migration agent took part in the hearing.

7. The Tribunal resolved to provide the parties with the opportunity to forward a letter from the biological father of the applicant, to the grandmother, referring to the daughter living in Australia, with the parties committing to do this by 4 February 2022.

8. The Tribunal notes a copy of the letter, and translated version of required parts, were received 2 hours after the completion of the hearing.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has considered the information contained in the Department file, the information provided by the applicant to the Tribunal prior to the hearing, the oral evidence from the hearing and documented evidence following the hearing.

    ISSUE

11. The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa. 

    BACKGROUND OF THE EVIDENCE

12. Applicant Miss Sun was born in China in 2009. She is the daughter of the sponsor, with the biological father living in China and in prison for 7 years from late 2019. She arrived in Australia 3/11/18, after being granted a Visitor 600 Visa on 9/1/18 and to cease 3/2/19.

13. Sponsor Mrs. Toyama was born in China in 1985.  She was married, to the father of the applicant, from 08/2008 to 10/2014. She arrived in Australian 17/10/13, having been granted a Student 573 Visa 11/10/13 and to cease 30/11/15. She is married to an Australian citizen, with whom she has a son, born 10/2016, and was granted a Partner 820 visa and Partner 801 Visa on 12/1/18.

    INFORMATION TO THE TRIBUNAL

14. Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:-

    Review application, 10/4/21

    Applicant Movement Record, 10/12/21

    Migration Agent submission, not dated

    Certificate of No Criminal Record of biological father of applicant, 30/10/19

    Sponsor statement, 9/4/20

    Applicant parents Agreement Concerning Maintenance Relationship Alteration, 22/8/21

    Sponsor payroll details confirming income, January 2022

    Applicant Australian school information, 2021 and 2022

    Applicant submission, 21/1/22

    7 photos of the applicant with family and friends

    Translated letter from biological father of applicant referring to daughter living in Australia

    Dependent child criteria

15. 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).

    Dependent child

16. 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.

17. 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].

18. The Tribunal accepts the documented evidence of the sponsor being an Australian permanent resident from 12/1/18.

19. The Tribunal notes the applicant was born on 4/3/09 and was 9 years old at the time of the visa application. 

20. The Tribunal accepts the documented and oral evidence of the applicant and sponsor that the biological father of the has not lived with the applicant since the parents separated in June 2013.

21. The Tribunal accepts the oral evidence of the sponsor that the biological father of the applicant rarely provided any financial support for the living costs of his daughter after the separation in June 2013.

22. The Tribunal accepts the oral evidence of the applicant and sponsor that the applicant lived with the mother of the sponsor upon the sponsor moving to Australia on 17/10/13 to study, remaining in the care of the grandmother until 3/11/18 when the applicant and grandmother travelled to Australia.

23. The Tribunal accepts the documented and oral evidence of the sponsor that for the period October 2013 to November 2018 she provided funds to her mother, the care giver grandmother of the applicant, for the needs of the applicant.

24. The Tribunal accepts the documented and oral evidence of the applicant and sponsor that the sponsor has provided for all requirements of the applicant since she arrived in Australia on 3/11/18.

25. The Tribunal accepts the documented and oral evidence of the applicant and sponsor that the sponsor, as mother of the applicant, has been the ever-present provider of the financial support she required, in China and Australia, and she has been reliant on her for all her needs.

26. Accordingly, cl.802.212(1)(a) is met at the time of application and continues to be met at the time of decision.

27. For the reasons above, the criteria in cl.802.212 and cl.802.221(1) are met.

    Sponsorship

28. As the visa application is not supported by a letter of support from a State or Territory government welfare authority, the applicant does not meet cl 802.215(a) and must meet the requirements in cl 802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. At the time of decision, this sponsorship must have been approved and still be in force: cl 802.226.

29. The Tribunal accepts the documented evidence that the sponsor is the holder of a Partner 820 Visa and Partner 801 Visa granted on 12/1/18, prior to the lodgement of the Child 802 Visa, and is an Australian Permanent Resident.

30. Accordingly, the requirements in cl 802.215(b) and cl 802.226 are met.

    Public Interest Criterion 4017

31. Clause 802.225 requires that Public Interest Criterion 4017, being that the law of the applicant’s home country permits the removal of the applicant, each person who can lawfully determine where the applicant is to live consents to the grant of the visa and the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

32. The Tribunal accepts the documented and oral evidence that the sponsor that she and the biological father of the applicant separated in June 2013.

33. The Tribunal accepts the documented and oral evidence that the sponsor that she moved to Australia in October 2013 to study.

34. The Tribunal accepts the documented and oral evidence that the sponsor that she was formally divorced from the biological father of the applicant in October 2014.

35. The Tribunal accepts the documented and oral evidence that the sponsor and applicant that the biological father of the applicant was arrested in China in March 2018 and sentenced to 7 years jail.

36. The Tribunal accepts the documented and oral evidence that the sponsor that the biological father of the applicant has been near impossible to contact since February 2020 as jails in China had no access due to COVID 19 restrictions and it was not until mid-2021 that a lawyer acting on behalf of the sponsor was able to gain access to speak to the biological father about the documentation needs for Australian migration purposes.

37. The Tribunal notes the document Agreement Concerning Maintenance Relationship Alteration, signed by the biological father on 13/7/21 and the sponsor on 22/8/21, in which the father agrees that the sponsor “shall be responsible for custody of her daily life, health, education and other matters”.

38. The Tribunal questioned the sponsor on the issue that the Agreement Concerning Maintenance Relationship Alteration does not specifically state that the biological father supports the applicant migrating to Australia.

39. The Tribunal noted a response from the applicant and sponsor referring to a letter the biological father had written to the grandmother of the applicant in which he said that he hopes the applicant will have a happy life in Australia, asking the applicant to read the letter during the hearing, which she did, translating it in to English.

40. The Tribunal accepts the documented and oral evidence of letter of the biological father to the grandmother of the applicant being provided, in Chinese and translated English, in which the biological father states “Please tell Nini: "I miss you very much. I can't control my emotions when I think of the little monkey. You are in my heart. I will take good care of myself for you, and you should study hard for me. When you come to pick me up, you should gain and achieve something. You and I don't want your own life to be ordinary, so you should live a happy life in Australia and study hard. I hope you can pick me up with your achievements."

41. The Tribunal accepts the documented and oral evidence that the biological father is aware that his daughter is living in Australia and provides his support for her to do this. 

42. The Tribunal accepts the documented and oral evidence that the biological father, on 13/7/21 as detailed in the Agreement Concerning Maintenance Relationship Alteration, renounced all parental rights over the applicant.

43. The Tribunal determines, in consideration of the documented and oral evidence provided by the applicant and sponsor, that the biological father of the applicant is aware that the applicant lives in Australia and support her doing so.

44. Accordingly, cl 802.225 is met.

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

    DECISION

46. 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(1)(a) of Schedule 2 to the Regulations; and

    ·cl 802.215(b) of Schedule 2 to the Regulations; and

    ·cl 802.221(1) of Schedule 2 to the Regulations; and

    ·cl 802.225 of Schedule 2 to the Regulations; and

    ·cl 802.226 of Schedule 2 to the Regulations.

    Steven Griffiths
    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.

    …