Tran (Migration)

[2020] AATA 3604

Tran (Migration) [2020] AATA 3604 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Hoa Tran

VISA APPLICANT:  Mr Luc Bach Vo Tran

CASE NUMBER:  1824212

HOME AFFAIRS REFERENCE(S):          2017019635 OSF2017/019635

MEMBER:Roger Maguire

DATE:19 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 19 August 2020 at 10:51am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – no response to s.359(2) invitation – not entitled to appear before the Tribunal – Tribunal declined indefinite adjournment of decision – dependent child – wholly or substantially reliant – evidence of financial support from the sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 101.211, 101.211, 101.213

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Huynh v MIMA [2006] FCAFC 122
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 6 July 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the applicant) applied for the visa on 3 October 2017. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211(1)(a), which requires the applicant to be a dependent child of an Australian citizen.

4. Clause 101.211 in Schedule 2 to the Regulations requires that, at time of application:

   (1) The applicant:

   (a) is a dependent child of:

   (i) an Australian citizen; or
   (ii) the holder of a permanent visa; or
   (iii) an eligible New Zealand citizen;

5. Regulation 1.03 defines dependent child as follows:

   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.

6. A child who is under 18 at the time of application for a Subclass 101 visa is assessed at time of decision as if they are still under the age of 18.

7. Clause 101.213 further requires that, at time of application:

   (1) If the applicant has turned 18:

   (a) the applicant:

   (i) is not engaged to be married; and
   (ii) does not have a spouse or de facto partner; and
   (iii) has never had a spouse or de facto partner; and

   (b) the applicant is not engaged in full-time work; and

   (c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   (2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

8. Clause 101.221 requires, at time of decision:

   (1) In the case of an applicant who had not turned 18 at the time of application, the applicant:

   (a) continues to satisfy the criterion in clause 101.211; or

   (b) does not continue to satisfy that criterion only because the applicant has turned 18.

   (2) In the case of an applicant who had turned 18 at the time of application:

   (a) the applicant:

   (i) continues to satisfy the criterion in clause 101.211; or

   (ii) does not continue to satisfy that criterion only because the applicant has turned 25;

   (b) the applicant continues to satisfy the criterion in clause 101.213.

9. The delegate refused to grant the visa on the basis that cl.101.211(1)(a) was not met because the delegate was not satisfied that the applicant was wholly or substantially reliant on the sponsor (or review applicant) for financial support to meet the applicant’s basic needs of food, clothing and shelter, or 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.

10. On 19 June 2020 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide evidence that the visa applicant meets cl.101.211(1)(a) of Schedule 2 to the Regulations.

11. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the date specified, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. On 3 July 2020, the applicant’s migration agent requested an extension of time to provide the information requested, and was granted until 14 August 2020 to do so.

13. The review applicant has not provided information within the prescribed period and no further extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1]

    [1] Hasran v MIAC [2010] FCAFC 40

14. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

15. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[6]

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

16. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

17. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

18. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether the visa applicant meets cl.101.211(1)(a) of Schedule 2 to the Regulations.

    Dependent child criteria

21. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

    Dependent child

22. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(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.

23. 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].

24. Evidence before the Tribunal establishes that the applicant was born on 24 May 1996, and was therefore 21 years old on 3 October 2017, the date of lodgement of the present application.

25. The birth certificate submitted by the applicant lists the sponsor as the applicant’s mother (folio 104 Departmental file). On this basis, the Tribunal is satisfied that the applicant is the biological child of the sponsor.

26. The sponsor was granted a Partner (Residence) (Class BS) (Subclass 801) visa on 3 June 2016, and became the holder of a permanent resident visa on this date.

27. Regulation 1.05A(1)(a)(i) provides that a person is dependent on another person, if at the relevant time, 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. Policy states that a substantial period is usually taken to be at least 12 months.

28. It is therefore necessary to consider whether the applicant was dependent to the requisite extent upon the sponsor during the 12 month period prior to the lodgement of the visa application on 3 October 2017.

29. No evidence of financial support from the sponsor to the applicant was submitted at the time of lodgement.

30. In the Form 47 CH Application for migration to Australia by a child, at Question 42, the applicant’s main source of financial support was shown as being Nguyen Thi Vang, who was providing VND1.5 million (approximately $88 per week) for accommodation, food, clothing, and sundry expenses for the period from November 2011 to August 2017.

31. In the Form 40 CH, Sponsorship for a child to migrate to Australia, the sponsor declared in response to Question 25 that she was not currently in paid employment, and was undertaking home duties. In response to Question 27, the sponsor declared that she had not been in paid employment in the past 2 years. Furthermore, in response to Question 28, the sponsor declared that she had been receiving newstart allowance from 1 September 2016 to 16 August 2017. In response to Question 29 on the Form 40 CH, the sponsor declared that she was not currently receiving any other form of social security benefit. The sponsor did not respond to Questions 48 or 49 on Form 40 CH as to whether she was normally dependent on her partner’s income.

32. On 6 March 2018, the applicant informed a case officer of the Department that he lived with his maternal grandmother, Nguyen Thi Van, and that the sponsor sent money to the applicant’s maternal grandmother, and in this way paid for his study fees.

33. The Department subsequently requested evidence of the sponsor’s support of the applicant through his grandmother since the period from at least 4 October 2016, and a statement from the sponsor about how she was able to financially support the applicant when she had declared she had been receiving newstart allowance, or alternatively, evidence of the sponsor’s partner’s income source.

34. In a statement dated 27 March 2018, the sponsor stated that her newstart allowance had ceased and she had commenced operating her own business and earning independent income since 31 December 2017. The sponsor enclosed her financial records and tax return documents for the financial year ending 30 June 2017, and her accountant’s records of income and expenditure for the following 6 months to 31 December 2017. The sponsor’s husband received a fortnightly pension of $755.05 and copies of his bank statements evidencing these payments were submitted. The sponsor’s husband’s bank records covered the period from 24 September 2017 to 24 February 2018 and showed that his only source of income was the pension referred to, and that the only other deposit was the sum of $500 made on 15 January 2018.

35. The sponsor’s financial records for the period ending 30 June 2017 showed a loss of over $30,000. The sponsor’s financial records for the period ending 31 December 2017 showed a net income of almost $11,000.

36. A statement dated 23 March 2018 was provided from Nguyen Thi Vang, who stated that she temporarily provided accommodation to the applicant from 4 October 2016, and that during this time Mrs Nguyen paid the applicant’s expenses on behalf of the sponsor. A bank statement in the name of Nguyen Thi Vang dated 12 March 2018 showed a total balance of VND25 trillion (approximately $1.464 million).

37. During a call with a case officer on 16 May 2018, the applicant provided information that he stayed with his maternal grandmother in the house that she owned, and bought clothes with money given to him by his maternal grandmother who gave him $50 per week for food, transport and incidentals. The applicant also informed the case officer that his maternal grandmother has a rental property, she has money and the sponsor also sent her money. The applicant was unaware of how the money was sent from the sponsor to his maternal grandmother, but said that if he needed money, he asked his maternal grandmother who gave it to him. The applicant also said that his maternal grandmother was old and not responsible for supporting him financially.

38. There does not appear to be any verifiable evidence of financial support from the sponsor to the applicant during the period of 12 months prior to the lodgement of the present visa application. The applicant’s maternal grandmother stated that no financial transfers were made by the sponsor, and that she herself was supporting the applicant with rental income that she receives. This is not consistent with statements by the applicant that he is financially supported by the sponsor, and that the sponsor transfers money to his grandmother.

39. There is no satisfactory evidence before the Tribunal to support the applicant’s contention of financial support by the sponsor. The Tribunal is therefore not satisfied that the applicant wholly or substantially relied on the sponsor for financial support to meet the applicant’s basic needs of food, clothing and shelter, or 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 of food, clothing and shelter.

40. There is no evidence before the Tribunal to suggest that the applicant is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions so as to bring the applicant within r.1.03(b)(ii).

41. The Tribunal is therefore not satisfied that the applicant meets r.101.211(1)(a). It follows, having regard to this finding, that the applicant does not satisfy cl.101.221 in Schedule 2 to the Regulations. The applicant therefore does not satisfy the criteria for the grant of a Child (Subclass 101) visa.

42. Accordingly, cl.101.211(1)(a) is not met at the time of application, and does not continue to be met at the time of decision.

43. For the reasons above, the criteria in cl.101.211 and cl.101.221(1) are not met.

44. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

45. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Roger Maguire
    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.

    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.

    …