Tran (Migration) - [2018] AATA 1925

Tran (Migration) [2018] AATA 1925 (4 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms My Tien Tran
VISA APPLICANT:  Ms Vien Duong Tran
CASE NUMBER:  1710532
DIBP REFERENCE(S):  2016/039633 OSF2016/039633
MEMBER:Susan Trotter
DATE:4 May 2018
PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 of Schedule 2 to the Regulations;
·cl.101.213 of Schedule 2 to the Regulations; and
·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 04 May 2018 at 5:22pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – Dependent child – Mother /Daughter relationship – Review Applicant financially supported the visa applicant – Documentary evidence of numerous money transfers – Visa applicant lived with father and independently in Vietnam – Over 18 at the time of application – Completed high school – Studying full time – Decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, rr 1.03, 1.05A Schedule 2 cls 101.211, 101.213, 101.221
CASES
Huynh v MIMA [2006] FCAFC 122
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 Immigration and Border Protection (the Minister) on 5 April 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied to the Department of Immigration and Border Protection (the Department) for the visa on 12 September 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The delegate refused to grant the visa on the basis that cl.101.211 and cl.101.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) were not met because the delegate was not satisfied that the visa applicant was at the time of the visa application, nor was at the time of the delegate’s decision, wholly/substantially dependent on the sponsor, the review applicant, for financial support to meet her basic needs of food, clothing and shelter or that her reliance on the review applicant was greater than her reliance on another person or source of support for her basic needs of food, clothing and shelter. In particular the delegate considered that the support from the review applicant, the visa applicant’s mother, was not greater than the support the visa applicant received from her father.
The review applicant lodged an application for review of the delegate’s decision with the Tribunal on 17 May 2017.
The review applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who spoke with…

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: Tran (Migration) [2018] AATA 1925
Case: [2018] AATA 1925
Decision Date: 4 May 2018

CaseChat Overview and Summary

This matter concerned a review of a decision regarding a Child (Migrant) (Class AH) visa, Subclass 101 (Child) visa. The review applicant sought to establish a mother-daughter relationship with the visa applicant, asserting that she had financially supported the visa applicant through numerous money transfers. The visa applicant, who was over 18 at the time of the application, had completed high school and was studying full-time in Vietnam, living with her father. The decision was made by Susan Trotter, a Member of the Tribunal.

The Tribunal was required to determine several key issues. These included whether the visa applicant was a dependent child of the review applicant at the time of the visa application, and whether the visa applicant met the age and incapacitation criteria for dependency. Further, the Tribunal had to consider if the relevant child-parent relationship existed, and if the additional requirements for applicants over 18, relating to relationships, work, and study, were satisfied at the time of the application. Finally, the Tribunal needed to assess whether the criteria in clauses 101.211 and 101.212 of the Migration Regulations 1994 continued to be met at the time of the decision.

In its consideration, the Tribunal examined the definition of a "dependent child" under regulation 1.03 and the criteria for dependency under regulation 1.05A(1). The Tribunal noted that for non-refugee stream visas, only financial dependency for basic needs (food, clothing, and shelter) is relevant, and this reliance must be greater than any other source of support. The Tribunal also considered the Department's policy guidelines, which clarify that student fees are not considered basic needs and that individual circumstances must be taken into account when assessing financial support, particularly where there is no direct exchange of money.

Ultimately, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration. The Tribunal directed that the visa applicant met the criteria specified in cl.101.211, cl.101.213, and cl.101.221 of Schedule 2 to the Migration Regulations 1994.

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

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISIONThe Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl.101.211 of Schedule 2 to the Regulations; ·cl.101.213 of Schedule 2 to the Regulations; and·cl.101.221 of Schedule 2 to the Regulations.Susan TrotterMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a 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 bodily or mental functions.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. …

Ratio Decidendi

Legal Principle Established

It follows that the issues to be determined by the Tribunal are as follows:(a) Was the visa applicant a dependent child of the review applicant at the time of the visa application? (b) Was the visa applicant under 25 years of age at the time of the visa application or were they incapacitated for work due to the total or partial loss of bodily or mental functions? (c) Was the visa applicant in the relevant child-parent relationship at the time of the visa application? (d) Were the additional requirements relating to relationships, work and study for an applicant aged over 18 met at the time of the visa application?(e) Do the requirements in cl.101.211 continue to be met at the time of decision? and(f) Do the requirements in cl.101.212 continue to be met at the time of decision?CONSIDERATIONIssue 1 - Was the visa applicant a dependent child of the review applicant at the time of the visa application? The Department’s policy guidelines (PAM3) in relation to established dependency include as follows:33 Assessing regulation 1.05A(1)Regulation 1.05A(1) prescribes the dependency requirements for all cases except for protection, refugee and humanitarian stream visas.33.1 Only financial dependency is relevantFor regulation 1.05A(1), to be considered dependent, a person must be:·wholly or substantially reliant on another person for financial support to meet their basic needs for food, clothing and shelter; and the person’s reliance on the other person is greater than any reliance 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,·wholly or substantially reliant on another person for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions.This requirement applies irrespective of the age of the person or their personal circumstances and regardless of whether or not they have a disability. However, limitations such as to age or relationship to the family head may be specified elsewhere, such as in the definition of MoFU which may require a person to meet the definition to be dependent.This contrasts with the regulation 1.05A(2) definition of 'dependent', which is broader and provides that a person can meet the definition of dependent if they are wholly or substantially reliant on the family head for financial support (not limited to basic needs), or for ‘psychological’ and ‘physical’ support. (This wider definition applies only to protection and refugee/humanitarian stream visas.The advice that follows on assessing financial dependency is relevant only to non-refugee/humanitarian/protection visa applicants assessed under regulation 1.05A(1).36 Basic needsOnly 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 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".36.1 What are basic needsThe 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 but has also been recognised by the AAT.Under policy, student fees are not considered basic needs.43 Individual circumstances to be consideredAll assessments of regulation 1.05A(1)(a)(ii) must take into account the individual circumstances of the person.Financial support for basic needs can sometimes be difficult to measure if there is no actual exchange of money between the two parties. For example, if the claimed dependent is living in the same residence as the other person, officers need to consider how much money the other person is contributing to the claimed dependent's need for shelter (and possibly food), taking into account the how much it costs to rent or occupy similar accommodation. Such financial support would be relevant to the assessment of regulation 1.05A(1)(a)(i) and (ii).