Yang (Migration)

[2024] AATA 3187

Yang (Migration) [2024] AATA 3187 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Liuqun Yang

VISA APPLICANT:  Mr Tonggen Xie

REPRESENTATIVE:  Mr Hang Chen (MARN: 0854662)

CASE NUMBER:  2106360

HOME AFFAIRS REFERENCE(S):          CLF2020/16072

MEMBER:Peter Emmerton

DATE:6 August 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 06 August 2024 at 2:48pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – ‘dependent child’ – applicants over 18 – financial dependency – inconclusive documentary evidence – employment history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 101.211, 101.221

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 17 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 8 April 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211, which requires that the definition of dependant as in regulation 1.05A and therefore the definition of dependant child in regulation 1.03.

4. The delegate refused to grant the visa on the basis that cl 101.211 was not met because they were not satisfied the visa applicant met the specified criteria necessary to meet the definition of dependent child in regulation 1.03.

5. The review applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hui Zeng, the review applicant’s husband and stepfather of the visa applicant and Mr Tonggen Xie, the visa applicant.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the visa applicant is dependent upon the review applicant at the time of application and at the time of decision.  

   Criteria for applicants over 18

10. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study.  They must also show ongoing dependency for a substantial time before the application. A period of 12 months is considered a minimal reasonable time. These requirements must continue to be met at the time of decision: cl 101.221.

11. At the time of application, the visa applicant was 20. The Passport and Birth Certificate confirm this as did the review applicant at the hearing.

12. A visa cannot be granted unless the applicant meets the legal requirements that are specified in the Act and the Regulations. The applicant in this case does not meet the legal requirement in Clause 101.211 in Schedule 2 of the Regulations. Specifically, 101.211(1)(a) stipulates the applicant must be a dependent child. Regulation 1.03 relevantly stipulates in this case as the applicant has turned 18, they must be dependant or incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. No evidence of incapacitation has been presented.

13. Dependent has the meaning given by regulation 1.05A. In the case under consideration regulation 1.05A(1)(a)(i) and (a)(ii) are relevant.

14. 1.05A(a)(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

    1.05A(a)(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.

    At the time of application it stated, ‘The child is totally dependent on the sponsor for financial support and has no other source of financial assistance.’

15. A range of documents have been presented to the delegate to demonstrate financial dependence, some translated into English, others in Mandarin. It is noted the delegate requested all relevant documents to be translated into English.

16. The Tribunal has received translated and untranslated financial documents in an attempt to show transfer of monies for the 12 months prior to the application. The Bank of China Transaction Statements commencing March 2019 and up until April 2021. This shows the visa applicant’s account but no clear indication who has transmitted funds into his account. There are translated Transaction details provided for the same time period indicating Hui Zeng sent amounts that appear to correlate but no recipient details indicated.

17. There are multiple Transfer Statement details for the time period from March 2020 until April 2021 which are not relevant in relation to the 12 months prior to application. These indicate transfer of monies on a regular basis from Hui Zeng to Tonngen Xie.

18. There are also 5 pages of Transfer Record which indicate a transfer of some funds on a regular basis over a time period only indicated by a date and a month but no year therefore it is impossible to verify. It is not stated who sent the funds as no name is stated other than the possible recipient however this is not clearly indicated. No account details for the sender or the recipient are indicated.

19. No submission explaining the documentation was presented to the Tribunal prior to the hearing.

20. It is not possible for the Tribunal to definitively conclude the visa applicant was dependant for the relevant 12 months prior to the visa application. It accepts the statements made by the applicants and witness during the hearing as possibly correct. It also accepts the assertions made by the review applicant and her husband the documentation was the best they were able to produce. However, without corroborating documentary evidence it is not satisfied that for the relevant time of at least 12 months prior to the application date the visa applicant was a dependent of the review applicant as required by 1.05A(1) (a)(i) and (a)(ii). For clarity the applicant needed to show he was dependant on his sponsor from 8 April 2019 – 8 April 2020.

21. An additional dispositive issue arose as a result of previously undisclosed evidence which was provided by the visa applicant and the review applicant during the hearing. They both stated the visa applicant was no longer studying and is now working. The review applicant stated her son had been working for a year or more. The visa applicant stated he had been working for 2-3 years. The discrepancy relating to the time the visa applicant has been working concerns the Tribunal. An explanation was provided that work had become necessary because of the time from the visa application to the review and decision to be made by the Tribunal. The Tribunal can accept this as an issue, however there is no provision for this in the legislation. The applicant cannot have a substantial break in study nor work for a substantial time once they have turned 18 and still qualify for this visa.

22. The Tribunal formally explained the issue and why it was important under 359AA at the hearing. The applicants were provided with an opportunity to respond and comment. They explained the substantial delay between application and this point in time meant that work was needed.

23. The review applicant’s husband Mr Tonggen Xie and the visa applicant both asked the Tribunal to consider the importance of reuniting the family unit. This is noted and considered a reasonable desire by the Tribunal. However, there is no provision in the legislation or regulations allowing the Tribunal discretion based on compelling or compassionate grounds. This was relayed to the parties during the hearing.

24. As the applicant does not meet regulation 1.05A(1)(a) he does not meet the definition of ‘dependent child’ under regulation 1.03(b)(i).

25. As previously stated, the Tribunal has not been presented with any evidence the applicant is incapacitated for work due to the total or partial loss of their bodily or mental functions. the applicant therefore does not meet regulations 1.03(b)(ii) and 1.05A(1)(b).

26. The visa applicant does not therefore meet clause 101.211 and the criteria for the grant of a Child (Migrant) visa are not met.

27. The visa applicant does not therefore meet clause 101.221 as he continues to not satisfy the requirements of 101.211 and the criteria for the grant of a Child (Migrant) visa are not met.

    DECISION

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

    Peter Emmerton
    Member