Yung (Migration)

[2018] AATA 3474

Yung (Migration) [2018] AATA 3474 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chung Kan Yung

CASE NUMBER:  1603488

DIBP REFERENCE(S):  BCC2015/190225

MEMBER:Justin Owen

DATE:24 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.311 of Schedule 2 to the Regulations

·cl.820.321 of Schedule 2 to the Regulations

Statement made on 24 July 2018 at 3:58pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Definition of dependant – Life in home country – Primary applicant has sole responsibility for care – No siblings – Utility bills – Primary applicant’s will – Applicant’s welfare payments – Ceased government entitlements – Cash arrangements – Financial support of food and clothing – Built permanent accommodation – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12, Schedule 2 cls 820.311, 820.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 25 February 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 January 2015 on the grounds of being a secondary applicant (father) of a person in a spousal relationship with an Australian citizen who lodged a sponsorship in support of the application. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.311(a)(i) because as a secondary applicant they were found to have failed to satisfy 1.05A and were therefore not considered to be dependent on the primary applicant for the purposes of the visa application.  The delegate found that the secondary applicant could not be considered to be a member of the family unit of the primary applicant as defined at Regulation 1.12.  As the secondary applicant  (henceforth referred to as ‘the applicant’) was not a member of the family unit of the primary applicant for the purposes of the application, he did not satisfy Regulation 820.311 (a)(i). 

4. The applicant is an 84-year old male.  On 3 July 2018 the Tribunal received notification from the applicant’s representative that the applicant had been admitted to Frankston Hospital on 27 June 2018 after suffering a left-sided stroke.  Correspondence of 3 July 2018 was received from the neurologist at Frankston Hospital Dr N Mushairry stating that the applicant had deficits after his stroke including expressive dysphasia (difficulty in expressing words) and was largely non-verbal.  The neurologist stated that when the applicant attempted to verbalise he was unintelligible.  Dr Mushairry wrote that the applicant was unable to answer yes and no questions reliably and was unable to follow State 1 commands. (T1, Folio.49).  The neurologist stated whether the applicant’s symptoms improved at all remains to be seen. 

5. The applicant’s daughter – the primary applicant - has an enduring power of attorney over the applicant that dates from 2016 (T1, Folio. 83-86). The applicant’s daughter wrote to the Tribunal that she was available to confirm any evidence and wished to accept the hearing invitation on her father’s behalf.  Given the circumstances the Tribunal decided to proceed with the hearing.      

6. The applicant’s daughter (primary applicant) Mrs Jessica Ho Chuk Yung appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mr Darren Meddings.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Minister’s delegate found that the applicant was not considered a dependent of the primary applicant (Mrs Jessica Ho Chuk Yung). Hence, the applicant did not meet the definition of dependent and therefore failed to meet the definition of ‘member of the family unit’ of the primary applicant. Accordingly, the visa applicant did not meet clause 820.311 of Schedule 2 to the Regulations (Reg.).

10. The Tribunal has taken into consideration all the evidence in the Departmental file BCC2015/190225, the Tribunal’s file 1603488 and the oral evidence at the Tribunal’s hearing.

    What is the background of this case based on all evidence before the Tribunal?

11. The primary applicant Ms Jessica Ho Chuk Yung obtained a Prospective Marriage visa (subclass TO-300) on 12 September 2013 based on the spousal relationship with an Australian citizen Darren Meddings who lodged a sponsorship in support of the application.  The applicant Mr Chung Kan Yung was not included as a secondary applicant on this application.  The primary applicant arrived in Australia on 27 September 2013 as the holder of a Prospective Marriage visa.  She then lodged an application for a Partner UK (Temporary) and Partner BS (Residence) visa on 24 March 2014.  The applicant was not included on a secondary applicant on this application.  The primary applicant was granted a Partner UK (Temporary) visa on 24 May 2014.  The applicant arrived in Australia on 9 November 2014 on a subclass UD-601 Visitor visa.  On 16 January 2015 he lodged an application as the secondary applicant, on the basis that he is a member of the family unit (father) of the primary applicant who has applied for a Partner (subclass 820/801) visa application.  The applicant was granted a Bridging (subclass WA) visa as part of this application.  The application was refused by the delegate on 25 February 2016.   On 15 March 2016 the applicant applied to the Tribunal for a review of this refusal. 

    Review

12. On the basis of the evidence before it (T1, Folio.27-29) the Tribunal is satisfied that the applicant is the father of the primary applicant. The applicant must be dependent on the primary applicant in order to meet the definition of ‘dependent’ as outlined in r.1.05A(a): Reg. 1.05A. The definition of ‘dependent’ requires the applicant is and has been for a substantial period immediately before that time wholly or substantially reliant on the primary applicant for a substantial period of time for financial support to meet his basic needs for food, clothing and shelter. In addition, the applicant’s reliance on the primary applicant for this financial support must be greater than his reliance on any other person or source of support.

13. At the hearing the Tribunal asked the primary applicant a wide range of questions concerning the applicant’s dependence and reliance upon her.  She stated that she her father had first lived with her in her Hong Kong apartment in 1991 after his retirement from the railways.  He lived with the primary applicant and his wife, the primary applicant’s mother until her death in 1997.  The applicant has remained widowed since this time.  The primary applicant said that her father had been a train driver until an eye injury when he was moved to an administrative role which he remained in until mandatory retirement at 55 years of age.  The primary applicant stated that the applicant did not receive any pension until he turned 65 years of age and was reliant upon her for this whole period.  The primary applicant gave detailed, unembellished and clear testimony concerning her life in Hong Kong with the applicant where she was essentially responsible for the household.

14. The Tribunal notes the evidence that was submitted concerning the residence in Hong Kong the applicant claims to have lived in until his departure for Australia in 2014.  The Tribunal accepts the property was owned by the primary applicant (D1, Folio. 26) from 1989 and notes the claim that the applicant and the primary applicant’s mother (the applicant’s wife) moved in together in 1991. 

15. The primary applicant said that the applicant her father had no siblings and his father died when he was very young.  He therefore had few family members to assist him.  His only son Keith had migrated to Australia in 1986 and his only other daughter, due to a previous overstay in Hong Kong, is only permitted by the PRC authorities to visit Hong Kong for one week twice a year.  The Tribunal notes the evidence the applicant has provided from 2008 confirming this restriction (T1, Folio.76).   The Tribunal enquired of both the primary applicant and the sponsor Darren Meddings as to the support the primary applicant’s siblings provide.  It entails occasional visits to the applicant in Australia but there is little evidence of any further support that has been provided to the applicant by his other children.  The applicant’s older daughter Hao Mei Weng and his son Keith have each provided statutory declarations confirming that the primary applicant has essentially had sole responsibility for looking after their father since the death of their mother in 1997.     In such circumstances the primary applicant has had primary responsibility for her father now for many years.  The Tribunal considers this as evidence that the applicant has had greater reliance on the primary applicant than any reliance on any other person for financial support to meet their basic needs.    

16. The Tribunal enquired of the primary applicant as to why the applicant did not apply originally apply as a dependant applicant when she first lodged her application for a Partner visa.  The primary applicant said her father had said he did not wish to be a burden on her new life in Australia.  She said he was still physically quite fit at that time.  The primary applicant said that she had set up a camera in the apartment in 2013 so she could talk to and keep a close eye on her ageing father.   The Tribunal notes that the primary applicant was continuing to pay utility bills for water, gas and rates during this time after she was living in Australia and the apartment was still occupied by the applicant.  (D1, Folio. 53)   The Tribunal notes that the primary applicant also enlisted the support of friends to assist him with his daily life.  The primary applicant departed for Australia in February 2014.  She said that she soon received feedback from the building supervisors and from friends that her father, suffering from mild dementia, was not doing as well as she had hoped on his own.  She had left him cash when departing for Australia in early 2014 and did the same when she returned to check on him in Hong Kong in July 2014.  The primary applicant says at this time she began to consider other options for her father’s long-term wellbeing.   

17. The Tribunal explored just how long the applicant has been living with and reliant upon the primary applicant.  The sponsor said in oral evidence that he first met the applicant around 2012 and at this time the primary applicant had full responsibility for her father.  He said he visited the property numerous times and it was clear that the primary applicant had had full responsibility for her father and they had resided together for some years.  The Tribunal has also noted emails to travel agents for visas in 2013 that state the applicant’s passport lists his address as the same as the primary applicant.  (D1, Folio.54).   The Tribunal accepts that the applicant was residing with the review applicant when she was living in Hong Kong and was doing so for some years.  The Tribunal furthermore accepts that the costs associated with the property were the responsibility of the primary applicant.

18. The Tribunal also has placed weight upon the will of the primary applicant from July 2014.  In the will she states that the directed that her property in Hong Kong was to pass to her niece when she turned thirty. She did however leave a life estate to the applicant writing that her father should have the ‘right to live until he passes away without any cost.  And the living costs related to his stay should be paid from my remaining bank deposit.’  (T1, Folio.  89)  The Tribunal notes that this will was put in place at a time when the applicant still intended to remain in Hong Kong.  The Tribunal also considers this as evidence of the primary applicant’s commitment to continue to supply the applicant with shelter and other living costs after her departure to Australia.      

19. The Tribunal notes the substantial written submissions that have been provided by the applicant.  The applicant has provided documentation from the Hong Kong Government relating to the applicant’s previous Old Age Payment which was $2285HK and later $2390HK dollars per month.  The Tribunal notes that the research the applicant has provided concerning the cost of living in terms of both food and shelter in Hong Kong (T1, Folio.63-64) and agrees that the applicant’s Old Age Payment, in its own right, would in all likelihood fail to adequately finance the applicant’s cost of living in Hong Kong.  The Tribunal notes the bank statements that the applicant previously provided between 2012 and 2015 illustrate a fortnightly payment of the Old Age Payment but no evidence of any other regular income.  The Tribunal considers that, in the absence of any other source of income, it has been the financial support of the primary applicant that has enabled him to remain a resident of Hong Kong these past decades and allowed him to adequately meet his needs for food, shelter and clothing.   The Tribunal is unaware and there is no evidence of any other individual beyond the primary applicant providing him with such significant support for his shelter, food and clothing.   

20. The Tribunal furthermore notes that in November 2015 the applicant’s entitlement to this payment ceased as he failed to meet the ongoing residency requirements.  The applicant has repaid the Hong Kong Government in full for payments made between November 2014 and November 2015 (T1, Folio.66).  The Tribunal asked the primary applicant if the applicant has any other source of income.  She said he does not.  The Tribunal considers this as further evidence of the applicant’s ongoing and indeed reliance on the primary applicant. 

21. The applicant provided a written summary of the support the primary applicant has provided to the applicant for food, clothing and shelter for the entire year prior to the visa application in January 2015.  There is a remittance of $8,950HK dollars in August 2014 (T1, Folio.56) from the primary applicant to the joint bank account of the applicant and the primary applicant.  Given this was just after the primary applicant had returned to Hong Kong and had expressed grave concerns as to how her father the applicant was coping with living alone, the Tribunal accepts that these funds were provided principally for the applicant’s living expenses.  The primary applicant also states she left $30,000HK dollars for the care of the applicant after she departed for Australia (D1, Folio.49).   The Tribunal notes the correspondence of the primary applicant’s friend Alice Leung Nga See (T1, Folio. 72) who states that after the primary applicant went to Australia there were arrangements in place where she would see the applicant weekly and take him food and clothes shopping with the funds the primary applicant had left.  The Tribunal notes the lack of documentary evidence of some of these cash arrangements but, on the basis of the substantial evidence provided concerning the wider and long-term dependant relationship that exists between the applicant and his daughter the primary applicant, the Tribunal is prepared to accept the veracity of this claim for the purposes of this decision.     

22. The applicant has provided a range of evidence in relation to the provision by the primary applicant of shelter, food and clothing to the applicant after his arrival in Australia in November 2014.  The primary applicant refurbished a bungalow at the back of their residence for the applicant to live in.  It is claimed he has resided with them since November 2014 apart from a period of a few weeks during the construction phase.  The applicant has provided spreadsheets and other evidence documenting the cost of building and preparing the bungalow (T1, Folio.56).  All ongoing costs in relation to the bungalow are also covered by the review applicant and sponsor.  The Tribunal accepts that the primary applicant and sponsor built the bungalow for the use as permanent accommodation by the applicant and he has been in residence since November 2014.  The Tribunal accepts that the primary applicant is the principal support to her father, the applicant, for the provision of shelter and she has been for a substantial period of time.     

23. The Tribunal accepts the claim that the primary applicant shops for any required grocery and clothing items as she would for any other member of the family living at their property and the challenges in itemising this.  The Tribunal notes the Bendigo Bank statement provide that shows transactions for costs incurred.    The Tribunal accepts that the primary applicant is the principal support to her father, the applicant, for the provision of food and clothing and she has been for a substantial period of time.

24. The Tribunal also notes the substantial evidence the primary applicant has provided to the delegate previously of the payment of various medical bills and health insurance  the applicant has incurred whilst residing in Australia  (D1, Folio.40-44; 64-67).

25. The Tribunal on the evidence accepts that the applicant’s reliance upon the primary applicant for all facets of his day to day living costs has been for a substantial period of time prior to the application, and continues to be, greater than his reliance upon anyone else for financial support and the provision of food, clothing and shelter.             

26. Based on the primary applicant’s consistent and candid oral evidence, the Tribunal is satisfied that the shelter (homes) the applicant has resided (both prior in Hong Kong and in Australia since his arrival), was provided for financially by the primary applicant. Insofar as the financial support to meet the applicant’s ‘food’ costs are concerned, the Tribunal is satisfied from the primary applicant’s oral evidence (which was consistent, candid and therefore credible and reliable) and in the written submissions, that she provided substantially for these costs.  The Tribunal is also satisfied that the applicant’s clothing needs are met virtually entirely by the primary applicant based on both her reliable oral evidence and the documentary evidence that has been submitted. The Tribunal considers that this has been the situation both since the applicant’s arrival in Australia in November 2014 and for a significant number of years prior whilst residing with the primary applicant in Hong Kong.  

27. Having considered all the evidence and the matters contained in the delegate’s decision record, which the applicant provided the Tribunal, the Tribunal is satisfied that the applicant is, and has been for a substantial period immediately before the time of decision, substantially reliant upon the primary applicant Mrs Jessica Ho Chuk Yung for financial support to meet his basic costs of food, clothing and shelter; and that his reliance on the primary visa applicant is greater than any other reliance: as per Reg. 1.05A(1)(a)(i) and (ii). Therefore, the applicant also meets Reg. 1.12(1)(b).

1. Given the applicant’s recent stroke, the neurologist’s recent prognosis and the oral evidence of the primary applicant and the sponsor, the Tribunal has also considered whether the applicant also meets Reg.1.05A(b). The applicant is considered dependant on another person if they are 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. Whilst the long-term outcomes from the stroke are still unclear, the Tribunal is satisfied that the applicant also meets the requirements of 1.05A(b) at the time of decision.

2. Accordingly, the Tribunal is satisfied that the applicant was at the time of application, and remains at time of decision, a dependent of the primary applicant: Reg. 1.05A. Further, the applicant also meets the definition of ‘a member of the family unit’ of the primary visa applicant: Reg. 1.12. Therefore the visa applicant meets clause 820.311 and 820.321 of Schedule 2 to the Regulations.

3. 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 820 visa.

   DECISION

4. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

   ·cl.820.311 of Schedule 2 to the Regulations

   ·cl.820.321 of Schedule 2 to the Regulations

   Justin Owen
   Senior Member