Wu (Migration)

[2021] AATA 1566

Wu (Migration) [2021] AATA 1566 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ruiting Wu

VISA APPLICANT:  Mr Shuming Si

CASE NUMBER:  2001887

DIBP REFERENCE(S):  BCC2015/2023581 BCC2020/1299764

MEMBER:Meredith Jackson

DATE:12 April 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations

Statement made on 12 April 2021 at 1:46pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) –member of family unit – adult child secondary applicant to father’s partner visa – dependency – studying and not working – evidence of money transfers – some funds provided by mother – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A(1)(a)(i), (ii), 1.12, Schedule 2, cls 309.311, 309.321

CASES
Bretag v MILGEA [1991] FCA 582
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 Immigration on 3 December 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 July 2015 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311, cl. 309.321 and cl.100.311 because there was insufficient evidence to demonstrate that Si Shuming is a dependent child of the primary applicant and did not meet the definition of being a dependent child under Regulation 1.05A. On 3 February 2020 the applicant lodged an application for a review of the decision not to grant the secondary applicant a class UF subclass 309 visa.

3. The review applicant appeared before the Tribunal on 8 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hong Jie Sung and Mrs Hong Guo. The main applicant Yucheng Si and the secondary applicant Shuming Si did not attend the hearing. The review applicant indicated that she thought Shuming Si would attend. The Tribunal attempted to call the secondary applicant prior to and within the hearing but the applicant did not answer the calls. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the visa applicant meets the secondary requirements in cl.309.311 as a member of the family unit of the main applicant at the time of the visa application; and whether he continues to be a member of that family unit and meets the requirements of cl.309.321 at the time of this decision.

   Background

5. The review applicant is Ruiting Wu, the sponsor and partner of the visa main applicant Yucheng Si, aged 54, who was granted a subclass 309 Partner visa in December 2019 on the basis of his relationship with Ms Wu. The secondary applicant, Mr Si’s son Shuming Si, is aged 26. Shuming Si is also the review applicant’s nephew. Yucheng Si claims to be working in China; while Shuming Si claims to be studying there. Ms Wu returned to Australia from China recently. Yucheng Si is divorced from the review applicant’s sister. He was granted custody of Shuming Si in January 2015.

6. The review applicant claims Shuming Si is substantially dependent on his father for financial support. She claims Shuming Si does not have a partner, just a girlfriend, and has never been employed. He holds a Bachelor degree in clothing design he attained in China in 2017. She has provided evidence that Shuming Si is currently studying a vocational course that is due for completion in January 2023. Ms Wu claims Shuming Si currently lives alone in an apartment in Hubei and all his expenses are met by his father.

   Whether Shuming Si is a member of Yucheng Si’s family unit

7. Clause 309.311 of the Regulations requires that at the time of the application the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Clause 309.321 requires that at the time of decision the applicant continues to be a member of the family unit of that person. Since Ms Wu is the person who satisfies the primary criteria, to satisfy the Regulations Mr Si must be a member of her family unit.

8. Regulation 1.12 sets out the definition of ‘member of the family unit’. Relevantly, at r.1.12(1)(b), it states that a person is a member of the family unit of another person (in the subregulation called ‘the family head’) if the person is a ‘dependent child’ of the family head. To meet cl.309.311, Shuming Si must have been the dependent child of Yucheng Si at the time the application was made. To meet cl.309.321, he must continue to be his dependent child at the time of this decision.

   Dependent Child

9. To be Yucheng Si’s dependent child, Shuming Si must meet the definition of ‘dependent child’ in r.1.05A of the Regulations. Relevantly, that definition states that the dependent child of a person means the child of the person (other than a child who is engaged to be married or has a spouse or de facto partner) who either is under 18 years of age or has turned 18 and is ‘dependent’ on that person. The Tribunal accepts Shuming Si is the biological child of Yucheng Si. There is no evidence before the Tribunal that Shuming Si has ever been engaged, married, or in a de facto relationship. Shuming Si was born on 18 March 1995. He was 20 years of age at the time of application and is currently 26. Therefore, he has turned 18 and the question for the Tribunal is whether he was dependent on Shuming Si at the time of the application and continues to be dependent on him now.

   Is Shuming Si dependent on Yucheng Si?

10. The term ‘dependent’ is defined in r.1.05A of the Regulations. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person (the family head) for financial support to meet basic needs for food, clothing and shelter. Further, the first person’s reliance on the family head must be greater than the reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the family head for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions: r.1.05A(1)(b). There is no evidence, and it is not claimed, that Mr Si is incapacitated for work.

11. The time of application was 14 July 2015 when Shuming Si was aged 20. In considering whether he was wholly or substantially reliant on Yucheng Si at that time and for a substantial period immediately before that time, the Tribunal has taken into account the fact that before 14 July 2013, Mr Si was under the age of 18. The Tribunal accepts that before that, he was wholly dependent on his father. The review applicant claims that he has always been substantially dependent on his father and remains so. The Tribunal has considered the evidence provided in support of the claim that Shuming Si has since turning 18 has either been studying or preparing to study, and entirely reliant on Yucheng Si for his financial support. The Tribunal has considered the documentation provided in support of the claim and cannot from that source alone be certain that Shuming Si did not supplement support from his father by working and contributing to his own expenses. The terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether, as a matter of fact, the first person is relying on the family head for support.[1] Therefore the fact that Shuming Si may not necessarily have been required to rely on Yucheng Si, and could have had the time to generate some income of his own, is not relevant to the Tribunal’s deliberations.

    [1] Huynh v MIMA [2006] FCAFC 122 at [44].

12. Yucheng Si and his former wife, the secondary applicant’s mother, divorced in 2015. Evidence was provided that custody of Shuming Si was awarded to Yucheng Si. Based on the documentation and submissions provided, the Tribunal is satisfied that Shuming Si is the biological child of Yucheng Si and that Shuming Si was granted custody as part of the divorce settlement.

13. As detailed above, Regulation 1.05A requires that for a substantial period immediately before the relevant time, the person claiming to be dependent must be wholly or substantially reliant on the other person for their basic needs; and that reliance must be greater than the reliance on any other person or source of financial support. To form a view on Shuming Si was dependent upon Yucheng Si at the time of application in July 2015, the Tribunal has considered whether at that time, and for a substantial period before that time, Shuming Si was substantially reliant on Yucheng Si for financial support to meet his basic needs for food, clothing and shelter. The Tribunal notes that the applicant was studying at Dalian Arts College between 2013 and 2017, completing an undergraduate degree in clothing design. The Tribunal accepts that while he was a student, and in the four month period between him turning 18 and the visa application, the applicant was substantially dependant upon his father.

14. In consideration of whether the applicant remains dependant on his father at the time of this decision, the Tribunal has considered the evidence now before it, including the findings of the delegate. The delegate’s decision, provided to the Tribunal for the review, found insufficient evidence that after Shuming Si graduated from college in 2017, he was provided with funds from his father on a regular basis. It noted there were periods where the source of income was not clear. The Tribunal put this finding to the review applicant in the hearing. By way of response, she claimed that during this time, Shuming Si was preoccupied with preparing, unsuccessfully, for postgraduate entry. After he failed to complete his first attempt, and pass and gain entry on his second attempt, he decided to study an online drawing course in 2019. Ms Wu stated that Shuming Si in that time, and since, has not had any paid employment. In 2017, after completing his undergraduate degree, he tried to find course-related work but failed. He then moved to Beijing and found no work there. Ms Wu claims that, he has never had an income in all the years since graduating in 2017 which is why he relied on his family, and substantially on Yucheng Si.

15. The Tribunal found the review applicant to be a generally credible witness. She stated, and repeated, that Shuming Si’s mother provided some financial support to her son after the divorce of January 2015, but these were small amounts compared to what Yucheng Si provided over that time as the custodial parent. Also, because Shuming Si was not working, and living with family, he had few expenses. Evidence before the Tribunal regarding this period is patchy, but the Tribunal considers that a logical assumption is that Yucheng Si continued to provide for his son over this period. Based on this, the Tribunal is satisfied that for the period between when Shuming Si turned 18 on 8 March 2013 and the time of application on 14 July 2015, Shuming Si was substantially dependent on his father.

16. As to the period since, the review applicant provided detailed written summaries in support of her statement that some funds were provided by Shuming Si’s mother between 2018 and 2020, the period in which he did not successfully achieve postgraduate entry and went on to the drawing course. She stated that at the beginning of 2020, his father transferred 6,000 RMB to Shuming Si’s Alipay account. In 2019, his mother transferred 15,000 RMB to his Alipay account. His father transferred 4,200 RMB to his Alipay account, and 7,000 RMB to his WeChat account. In 2018, his father transferred 3000 RMB to his Alipay account, and 4,000 RMB to his WeChat account. His mother transferred 2,000 RMB in 2018. The Tribunal has calculated this to be about a 60 per cent reliance on his father in the period. Further, since early 2020, the review applicant claims, Shuming Si’s father has exclusively met his son’s basic financial needs. Evidence of an Alipay account provided to the Tribunal shows transfers totalling 42,800 RMB between February 2020 and March 3, 2021.

17. The Tribunal heard supporting evidence from Shuming Si’s current college teacher Guo Hong, and from his landlord Hong Jie Sung. Ms Guo attested to Shuming Si’s diligence as a student and said he was progressing well; and she was aware his father supported him. Hong Jie Sung stated that Shuming Si paid his rent in a timely manner; and confirmed payments were made through WeChat; and that he was aware that Shuming Si’s father supported him.

18. The Tribunal is satisfied that at the time of this decision, Shuming Si is wholly or substantially dependent of his father and therefore continues to meet the definition of dependant in the Regulations. In forming the view, the Tribunal has weighed the evidence before it of Shuming Si’s own financial records, and the element of doubt this creates about how he paid for his basic needs in the period between the visa application date and the start of regular payments in Alipay records, against the ongoing pattern of support claimed. The Tribunal is satisfied the best interpretation is that the applicant was wholly reliant on his father until the age of 18 in 2013, when he was a formal student. He was further reliant until 2017 when he graduated, received funds from his father (and to an extent, his mother) and has been in receipt of considerable funds from his father on a regular basis since early 2020 in order to meet his basic needs. Evidence of the currency of the regular payments, in the Tribunal’s view, tends to support a view that the applicant has always been substantially reliant upon his father to an extent greater than his reliance on any other person, or source of support, to meet his basic needs for food, clothing and shelter. In reaching this view, the Tribunal has relied on the authority in Bretag, which holds that to the extent that later events logically show the existence or non‑existence of facts at an earlier time, those later events may be taken into account to show the existence or non-existence of facts at the earlier time.[2]

    [2] Bretag v MILGEA [1991] FCA 582.

19. For the reasons above, the Tribunal is satisfied that Shuming Si is a member of the family unit of Yucheng Si as defined in Regulation 1.12. He meets, and has always met, the definition of dependent child in r.1.05A of the Regulations.  Shuming Si made a combined application with Yucheng Si. Accordingly, the Tribunal finds Shuming Si was a member of the family unit at the time of application and meets cl.309.311.

20. Because Shuming Si continues to be a member of the family unit of Yucheng Si, a person who, having satisfied the primary criteria is the holder of a Subclass 309 (Partner (Provisional)) visa at the time of this decision, Shuming Si meets cl.309.321.

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

22. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations

    Meredith Jackson
    Member

    
    

    309.3 Secondary criteria
    309.31 Criteria to be satisfied at time of application
    309.311
    The applicant is a member of the family unit of, and made a combined application with, a
    person who satisfies the primary criteria in Subdivision 309.21.
    309.3 Secondary criteria
    309.32 Criteria to be satisfied at time of decision
    309.321
    The applicant:
    (a) continues to be a member of the family unit of a person who, having satisfied the primary
    criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies
    the primary criteria);
    …

    Reg 1.12: Member of the family unit
    (1) This regulation has effect for the purposes of the definition (the main definition) of
    member of the family unit in subsection 5(1) of the Act.
    [6853833] DIAC Decision Record
    General rule
    (2) A person is a member of the family unit of another person (the family head) if the
    person:
    (a) is a spouse or de facto partner of the family head; or
    (b) is a child or step-child of the family head or of a spouse or de facto partner of the
    family head (other than a child or step-child who is engaged to be married or has a
    spouse or de facto partner) and:
    (i) has not turned 18; or
    (ii) has turned 18, but has not turned 23, and is dependent on the family head or
    on the spouse or de facto partner of the family head; or
    (iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family
    head or on the spouse or de facto partner of the family head; or
    (c) is a dependent child of a person who meets the conditions in paragraph (b).
    This subregulation has effect subject to the later subregulations of this regulation.
    Regulation 1.05A defines “dependent” as follows:

    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.
    (2) A person (the first person) is dependent on another person for the purposes of an application for:
    (d) a protection visa; or
    (ea) a Refugee and Humanitarian (Class XB) visa; or
    (i) a Temporary Safe Haven (Class UJ) visa;
    if the first person is wholly or substantially reliant on the other person for financial, psychological

    or physical support.