Ye (Migration)

[2024] AATA 972

Ye (Migration) [2024] AATA 972 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jintang Ye

VISA APPLICANT:  Mr Zhengeng Ye

REPRESENTATIVE:  Miss Vivian Wei Wang (MARN: 0853910)

CASE NUMBER:  2319627

HOME AFFAIRS REFERENCE(S):          BCC2017/4445663

MEMBER:Christine Kannis

DATE:5 April 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

Statement made on 05 April 2024 at 8:18am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicant – member of the family unit – dependent on the family head - four years full time study – no employment – review applicant’s financial support for family – substantial visa processing delay – mental health issues – claimed incapacitated for work – decision under review affirmed   

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 309.321; rr 1.03, 1.05, 1.12

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Ruchang Liao (the primary applicant) applied for the visa on 24 November 2017 on the basis of her relationship with her sponsor (Ye Jintang), the review applicant. The review applicant sponsored the visa applicant as a secondary 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 secondary criteria must be satisfied by the visa applicant because he was a secondary applicant on the primary applicant’s Subclass 309 visa application. Relevantly to this matter the secondary criteria includes cl 309.321.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.321 because the delegate was not satisfied he was a member of the family unit of the primary applicant at the time of decision.

4. The review applicant appeared before the Tribunal by MS Teams on 26 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present matter is whether the visa applicant meets the time of decision criteria in cl 309.321, which says:  

   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); or

   (b)  is a person to whom each of the following applies: 

   (i)  the person made a combined application with the person who satisfies the primary criteria;

   (ii)  subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria;

   (iii)  subsequent to the person who satisfies the primary criteria being granted a Subclass 309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa — the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

8. Clause 309.321 requires that the visa applicant at the time of decision continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of the Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria). In this matter, having satisfied the primary criteria, the primary applicant was granted Subclass 309 visa on 14 November 2023 and the Tribunal so finds.

9. The Tribunal then considered whether the visa applicant continues to be a member of the family unit of the primary applicant at the time of this decision.

10. Section 5(1) of the Act says that ‘member of the family unit’ of another person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations. Regulation 1.12 (2) says:

    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.

11. Regulation 1.12(2)(b) says a person is a member of the family unit of the family head if, among other things, they are the child or step-child of the family head or of a spouse or de facto partner of the family head.  In the context of a subclass 309 visa, the family head is the person who satisfies the primary criteria for the grant of the visa. In the present case the primary applicant (Ruchang Liao) is the family head and the visa applicant claims to be her child. For the purposes of reg 1.12(2)(b), child of a person is defined under section 5CA of the Act to include someone who is a child of the person within the meaning of the Family Law Act 1975. In the present case, the basis for the application is that the visa applicant is a child of the primary applicant. The review applicant and the primary applicant gave evidence that they are the parents of the visa applicant. Based on their evidence, and in the absence of any evidence to the contrary, the Tribunal finds that the visa applicant is a child of the primary applicant within the meaning of section 5CA of the Act.

12. Regulation 1.12(2)(b) says that if the child or step-child is 23 years of age or older, to meet the dependency requirements they must be dependent on the family head or on the spouse of the family head under paragraph 1.05A(1)(b).

13. Regulation 1.05A(1)(b) defines dependency as follows:

    (1)  Subject to subregulation (2), a person (the "first person") is dependent on another person if:

    (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.

    Evidence provided to the Department

14. Department of International Business, Open College, Guangdong University of Foreign Languages and Trade Certificate dated 30 November 2022, certifying that the visa applicant was a student from September 2019 to the present day and was undertaking a four year full time program in Intranational Economics and Trade.

15. On 21 June 2023, the visa applicant was provided with procedural fairness, advising he did not meet cl 309.321 as he did not satisfy the requirements of being a ‘member of the family unit’. In response the primary applicant provided the following:

    ·Prescription of Shadong Village Health Station dated 3 December 2022 which says: Disease: Episode of Depression. This patient often has bad sleep with hallucination, poor appetite, rarely anticipates social activities, irascible temperament etc. He came in for a treatment and he needs supervision from family members; have good rest during treatment.

    ·Prescription of Shadong Village Health Station dated 3 March 2023, which says: Disease: Episode of Depression. This patient often has bad sleep with hallucination, poor appetite, rarely participates social activities, irascible temperament. Sometimes acts unconsciously etc. He came in for a treatment, and he needs supervision from family members; has a good rest during treatment. Advise half a year period.

    ·Medical certificate from Central Hospital of Jiangmen City dated 30 June 2023 which says: Diagnosis Episode of Depression; This patient currently having a bad mood, poor sleep; advise receiving treatment for over one year and family has to accompany him and provide psychological support.

    ·Visa applicant’s written statement dated 7 October 2023 in which he states:

    oHe is unable to work due to physical incapacity after the age of 23;

    oHe has been a full-time student in good health. All his living and education expenses are fully funded by his parents. He was 19 years old studying at a vocational technical school when his mother lodged a spouse visa application sponsored by his father. The spouse visa application was refused in December 2018. The review made by the Administrative Appeals Tribunal was delayed for 4 years due to the pandemic. This caused him to exceed the age limit as well as causing a negative impact on his mental and physical well-being.

    oIn early 2021 he had contact with a classmate who later tested positive for COVID-19. Upon learning this he was terrified and experienced intense reactions such as fever, panic, anxiety and difficulty sleeping.

    oSince then he has barely gone out and has avoided contact with others. Apart from attending classes and studying, he has completely stopped all social activities. For a prolonged period he felt unmotivated and was reliant on his mother for daily care and support.

    oHe stayed home and attended online classes and often contemplated giving up his studies. He couldn’t concentrate and his academic performance suffered. He was unwilling to leave the house let alone seek employment. He felt the virus was omnipresent. His mother tried to persuade him to see a mental health professional but he refused because he was afraid to go to the hospital because it was a breeding ground for the virus.

    oThe outbreak in China at the end of 2022 triggered the resurgence of his anxiety.

    oSince early 2021 until now, he is filled with fear and anxiety at the thought of going out. This has often lead to loss of appetite and nightmares.

    oOn the insistence of his parents he saw a doctor and each time he visited he would be terrified. The thought of going to hospital fills him with fear.

    oThe doctor informed him that he needs at least one year of medical treatment and therapy, which he has been following.

    oSince childhood he has lacked the presence of his father and often felt insecure and has become withdrawn and introverted because he only had his mother by his side. He hasn’t seen his father in many years and yearns for a complete family environment. His doctor has also informed him that family reunification would contribute to his psychological recovery.

    Evidence provided to the Tribunal prior to the hearing

16. Letter dated 13 March 2024 from Phoenix Wang, Director Platinum City Serviced Apartments certifying that Ruchang Liao is a vital member of the staff and her income is around AUD $800 per week.

17. Commonwealth Bank statement for account in name of Ruchang Liao for the period 9 January 2024 to 9 March 2024.

18. Certified translations of Certificates for the visa applicant from Shadong Village Health Station dated 18 August 2023, 23 October 2023 22 November 2023,  3 January 2024 and 6 March 2024 which refer to a disease of “Depression”.

19. The Certificate dated 18 August 2023 states:

    The patient complaint about him being low in spirits and no appetite, bad sleep and temper, no interests to do any activities, sometimes experiences hallucinations, so he came to this station for treatment. He has to continue his treatment, have rests and under supervision.

20. The Certificate dated 23 October 2023 states:

    The patient complaint about him being low in spirits and no appetite, bad sleep and temper, no interests to do any activities, unconscious of some actions or behaviours; sometimes experiences hallucinations.

    Treatment: 1, Use medicines   2. Psychological treatment.

    3. Come in for regular consultations

    (Dixiyang 0.25 mg x 2 tablets, twice daily).

21. The Certificate dated 22 November 2023 states:

    The patient complaint about him being in bad sleep: changeable mood and temper, no interests in communicating with others; often weeps by himself In a room; rejects taking medicines.

    Treatment:      1. Be accompanied by loved ones: 2. Come to clinic for regular psychological treatment: Come to clinic immediately if any changes occurs

    (Dixiyang 0.25 mg x 2 tablets, twice daily).

22. The Certificate dated 3 January 2024 states:

    The patient complaint about him being no appetite, lower spirits and bad temperament; often has some actions which is unconscious of himself: sometimes experiences hallucinations and has violent tendencies, so he came in for a treatment.

    Treatment:      1. Take medicines: 2. Enforce a psychological treatment:; 3 Come to clinic for regular treatment.       

23. The Certificate dated 6 March 2024 states:

    The patient has tendency of apastia, not taking food; insomnia; bad mood during the day; no communication with others; not willing to visit doctor even under accompany of family; has violent tendency; smash things at home and cry in the room.

    Treatment:      1. Take medicines: 2. Accompanied by family:; 3 Come to clinic for regular treatment.

24. Written submission from the review applicant’s representative in which they refer to the documents provided prior to the hearing (set out above) and submit, based on that information, reg 1.05A(1)(b) is satisfied.

    Evidence provided at the hearing

    Review applicant’s evidence

25. The review applicant told the Tribunal that he and the primary applicant are the parents of the visa applicant. He said the visa applicant currently lives alone in China and is looked after by the eldest aunty who lives next door.

26. The review applicant told the Tribunal that the visa applicant graduated from his course of study in June 2023.  He said he and the primary applicant paid for the visa applicant’s living expenses.

27. The Tribunal referred the review applicant to the documents provided to the Department by the primary applicant (the Prescription of Shadong Village Health Station dated 3 December 2022 and 3 March 2023 and the Medical certificate from Central Hospital of Jiangmen City dated 30 June 2023) and noting that the documents do not refer to the visa applicant being prescribed or taking medication, asked him when the visa applicant commenced taking medication. In response he said the visa applicant resisted taking medication but started taking it when the primary applicant told him to take it.

28. In response to the Tribunal asking whether the visa applicant attended his medical appointments alone, the review applicant said the primary applicant accompanied him until this year and now his aunty accompanies him.

29. The Tribunal informed the review applicant that it had been unable to find any information about the medication (Dixiyang 0.25 mg) referred to in the Certificates dated 23 October 2022 and 22 November 2023 and asked him about the nature of the medication prescribed to the visa applicant. In response the review applicant said the medication is for the visa applicant’s anxiety and sleep.

30. The review applicant told the Tribunal that the visa applicant just passed the age limit of 23 years old last year. The Tribunal noted the review applicant was 25 years old in June 2023.

    Primary applicant’s evidence

31. The primary applicant told the Tribunal that the visa applicant refused to take medication prescribed in November/December 2022 and threw it out. She said he started taking medication in October 2023 when she insisted and stopped taking it in November 2023.

32. In response to the Tribunal asking about the nature of the prescribed medication (Dixiyang 0.25 mg), the primary applicant said it was to help the visa applicant sleep and for his anxiety.

33. In response to the Tribunal asking about the nature of the hallucinations referred to in the Certificates dated 23 October 2022, 22 November 2023 and 3 January 2024, the primary applicant said the visa applicant does not think like a normal person and his thinking is mixed up.

34. The primary applicant confirmed that the visa applicant completed a full-time course of study last year. She said he hopes he does whatever he wants with his qualification however at the moment he does not get out of the house.

35. In response to the Tribunal asking about the violence referred to in the Certificates dated 3 January 2024 and 6 March 2024, the primary applicant said the visa applicant throws things around in his room.

36. The primary applicant told the Tribunal that before she came to Australia the visa applicant told her he would not be able to accept his visa being refused. She said his father (the review applicant) was not living with them for most of the visa applicant’s life and it was just the two of them. She said the visa applicant wants to be reunited with his father but COVID-19 and his illness have delayed that possibility. The primary applicant said she hopes the Tribunal will be sympathetic to her son’s experience.

    Visa applicant’s evidence

37. The visa applicant told the Tribunal he probably started taking medication in October 2023 and stopped in November 2023. He said he stopped taking it because it made him feel dizzy. In response to the Tribunal asking about the reason for the medication, the visa applicant said he didn’t know but his mother told him it would be good for his illness. When the Tribunal pointed out that the doctor would have discussed the purpose of the medication with him, the visa applicant said the doctor said it would settle his sleep.

38. The Tribunal referred the visa applicant to his written statement dated 7 October 2023 and asked about his statement that he is unable to work due to physical incapacity after the age of 23. In response he said his illness is making him fearful of leaving the house and is a psychological limitation.

39. The Tribunal referred the visa applicant to his written statement dated 7 October 2023 and asked about his statement that apart from attending classes and studying, he has stopped social activities. The visa applicant confirmed that he left the house to attend medical appointments and to attend classes when in person classes resumed following COVID-19.   

40. The visa applicant told the Tribunal his current treatment is seeing his doctor about once a month for psychological counselling. The Tribunal asked the visa applicant about his doctor’s response to him ceasing his medication. He said the doctor told him that he should have the company of family as much as he can.

41. In response to the Tribunal asking how he has spent his days since graduating from full-time study in June 2023, the visa applicant said he does nothing and stares into empty space all day. He said his aunty cooks his meals from him.

    Representatives submissions

42. The representative made the following submissions:

    ·The pandemic often caused the visa applicant to want to give up study and this was beyond his control.

    ·The effect of COVID-19 was that the primary applicant’s application which was lodged before the Tribunal (differently constituted) took twice as long to finalise as it would have taken under normal circumstances. If the application had been finalised in 2 years rather than 4 years, the visa applicant would have been under 23 years of age and would have met the definition of dependent child.

    ·The review applicant came to Australia in 2002. He was granted a [permanent] visa and permanent residency. He has not been able to return to China to see the visa applicant and therefore was not present during his growth years. The visa applicant was effectively raised in a single parent family.

1. As noted, the Regulations allow for a child of the family head or of a spouse or de facto partner of the family head, who is 23 years or older to be a member of the family unit under limited circumstances. Reg 1.05A(1)(b) says for a person to be considered dependent on another person they must be wholly or substantially reliant on the family head or their partner for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

2. The Prescriptions and Certificates from Shadong Village Health Station and the Medical certificate from Central Hospital of Jiangmen refer to a diagnosis of depression and describe symptoms including poor sleep and hallucinations. There was no medical evidence provided with respect to the nature of the hallucinations. It appears the visa applicant followed the recommended medication treatment for 2 months only. He told the Tribunal he attends therapy once a month. The Certificates provided prior to the hearing contain information based on his self-reported symptoms. The Certificates do not provide evidence of any psychological tests administered and do not assess the severity of the visa applicant’s claimed depression. In addition, it appears the reason for the prescribed medication was to aid sleep, although as noted the Tribunal was unable to locate any information about the medication.

3. The Tribunal notes that the visa applicant was able to complete a four year full-time study course from September 2019 to June 2023. There was no suggestion that his mental health affected his ability to undertake study to the extent that he deferred his study. The Tribunal accepts that the COVID-19 pandemic had an adverse effect on the mental health of many people. 

4. Most importantly, there was no medical evidence before the Tribunal that the visa applicant suffers from any physical or cognitive disability which means he is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

5. The Tribunal accepts that the visa applicant is unhappy and wants to join his parents however no medical evidence was provided to establish that his emotional hardship causes him to be incapacitated for work.  

6. Based on the evidence, the Tribunal finds:

   ·The visa applicant is the child of the primary applicant;

   ·The visa applicant is 25 years old;

   ·The visa applicant is dependent on the review applicant and the primary applicant for financial support; and

   ·The visa applicant is not wholly or substantially reliant on the primary applicant or the review applicant for financial support because he is incapacitated for work due to the total or partial loss of bodily or mental functions

7. Given these findings, the Tribunal is not satisfied that the visa applicant meets the definition of dependent, as defined in reg 1.05A(1)(b) and consequently he does not meet the requirements of reg 1.12(2)(b)(iii). Therefore, he is not a member of the family unit of the primary applicant at time of decision and accordingly, cl 309.321 is not met and the decision under review must be affirmed.

8. The Tribunal acknowledges that the visa applicant wishes to travel in Australia and not be separated from his family.  However, the Tribunal is required to be satisfied that cl 309.321 is met, and that it is met in the way set out in in the clear wording of the clause, regardless of the reasons why the requirements are not met or any compassionate circumstances. The Tribunal is bound to apply the law as it is written. There is no discretion for the Tribunal to waive the need to meet cl 309.321.

9. For the reasons above, the visa applicant does not satisfy the time of decision criteria for the grant of the visa.

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF).

    Christine Kannis
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     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 factor 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 (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    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) …