Ye (Migration)

[2022] AATA 2079

Ye (Migration) [2022] AATA 2079 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kana Ye

CASE NUMBER:  2101995

HOME AFFAIRS REFERENCE(S):          BCC2018/2913575

MEMBER:Meredith Jackson

DATE:23 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

Statement made on 23 June 2022 at 1:40pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – member of family unit – mother of family head usually resident in household and dependant on her – amendment to regulations excludes relatives other than spouse and children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(b), 1.12(1)(e), (2), Schedule 2, cl 461.212

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 applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant Kana Ye, a citizen of China and a permanent resident of New Zealand, applied for the visa on 2 August 2018. The delegate refused to grant the visa on 3 February 2021 on the basis that the applicant did not satisfy the requirements of cl 461.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 461.212 of Schedule 2 relevantly requires the applicant to be a member of the family unit of New Zealand citizen Yingzhen Ye at the time of application and decision.

3.    The applicant appeared before the Tribunal on 21 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4.    The applicant was represented in relation to the review by her daughter, Yingzhen Ye, who changed her name to Yolanda Yip.

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

ISSUES AND LAW

6. The issue in this review is whether the applicant is a member of the family unit of New Zealand citizen Yingzhen Ye and satisfies cl 461.212.

7. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (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.

8.    Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

·the spouse or de facto partner of the family head;

·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    In the present matter, the applicant claims to be a member of the family unit of Yingzhen Ye, the applicant’s daughter, who is a citizen of New Zealand.

1. Yingzhen Ye is in Australia as the holder of a TY-444 visa and is the family head in a single parent household shared with her school-age daughter and the applicant.

2. In a submission to the Tribunal of 30 May 2022, the applicant claimed to meet the requirement of being a member of the family unit of Yingzhen Ye in that she satisfies the member of the family unit criterion in reg 1.12(1)(e).

3. The Tribunal acknowledges the claim, however notes that Ms Ye appears to be referencing the Regulations as they applied prior to 19 November 2016, to wit:  that a relative of the family head, or of a spouse or de facto partner of the family head who does not have a spouse or de facto partner, is usually resident in the family head’s household and is dependent on the family head, meets the definition.

4. In the hearing, the applicant, through her representative, pointed the Tribunal to a website which she said made it clear that she met the criteria. The Tribunal said that while it had not made up its mind about the claim, it appeared she was referencing the Regulations as they applied before 19 November 2016, wherein r 1.12(1)(e) allowed that in certain circumstances, a person is a member of the family unit if he/she is a ‘relative’ of the family head or the spouse of the family head. The Tribunal stated that this provision is overtaken by the post-November 2016 version of the Regulations, and a provision such as she cited remains in place only for certain protection, refugee and humanitarian visas but not for the visa class she applied for on 2 August 2018. The Tribunal referred the applicant to the definition of member of the family unit  that applied at the time of the visa application. The Tribunal stated that since 19 November 2016, the definition was confined to the spouse or de facto partner of the family head or a child or step-child of the family head in certain circumstances. This did not appear to include Kana Ye, because she was Yingzhen Ye’s mother.

5. It was apparent to the Tribunal in the hearing that Kana Ye had difficulty with the complexities of the various iterations of the Regulations. In fairness, the Tribunal allowed Yingzhen Ye, who is the applicant’s registered recipient and representative but who does not claim to be a registered migration agent or lawyer, to advance an argument on behalf of the applicant. This was conveyed to the applicant to the parties’ satisfaction, by the interpreter. Yinzhen Ye stated that there was a provision within the Regulations concerning incapacity for work, which may provide an avenue for the applicant to be regarded as a dependent member of her family unit. In support of this claim, she noted, the applicant had provided on 3 June 2022 a certificate from her physiotherapist, Mr Austin Tsai, stating that the applicant is suffering from restricted movement and is not fit to work before 15 July 2022.

6. The Tribunal has considered the physiotherapist’s report and acknowledges that Kana Ye is unable to work before 15 July 2022. However the Tribunal notes the applicant was likely to have been referring to paragraph 1.05A(1)(b) of the Regulations Paragraph 1.05A(1)(b) which states:

   (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.

7. The Tribunal has considered the additional claim, however notes that r. 1.05A(1)(b) applies only to the spouse or de facto partner of the family head; or in certain circumstances, to the child, step-child or dependent of the family head.

8. The applicant stated in apparent frustration that she did not understand why the visa could not apply to her. She stated she has only one daughter and she is retired, and she wants to live with that daughter in Australia, which is customary. She stated that her daughter came to Australia first, whereas she came in September 2016 on a visitor visa. The Subclass 461 was superior because it was for a five year period and allowed her to come and go. She stated that essentially, she was wholly dependent on her daughter because she had no money, she had used all her money for her daughter’s education.

9. The applicant’s granddaughter, the witness Erin Li, stated that her grandmother has been dependent on her mother for a really long time and everything works when the three live together. Her grandmother cooks and does everything for us, she stated, and her grandmother is otherwise entirely dependent on her mother “because Mum pays for the food and all the electricity bills. “

10. The Tribunal asked the applicant why she did not continue to live in New Zealand where her mother is a permanent resident. The applicant responded, through her representative, that they were in Australia for a better education and future for her granddaughter.

11. The Tribunal has closely considered the applicant’s circumstances and formed a view that she cannot meet the criteria for member of the family unit in the present matter. The Tribunal sympathises with the applicant and her two relatives, as she is clearly close to her daughter and granddaughter, and the family unit is well provided for in the current arrangements. However no discretion is available to the Tribunal in this subclass that would allow her to meet the criteria for member of the family unit as defined at the time of her visa application in August 2018. The Tribunal notes that other options may be open to the family.

12. Accordingly, the Tribunal finds Kana Ye did not, at the time of application for the visa, meet the definition of member of the family Unit of Yingzhen Ye as defined in r. 1.12.

13. There is no evidence before the Tribunal that the applicant meets the criteria for the visa on another other basis. Accordingly, cl 461.212 is not met.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP).

Meredith Jackson
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.

…

Reg 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 oss 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.