Zhang (Migration)

[2018] AATA 1556

Zhang (Migration) [2018] AATA 1556 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chi Zhang

CASE NUMBER:  1700317

DIBP REFERENCE(S):  BCC2015/2343956

MEMBER:Russell Matheson

DATE:13 April 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(a)(i) of Schedule 2 to the Regulations; and

·cl.820.321(a) of Schedule 2 to the Regulations.

Statement made on 13 April 2018 at 12:28pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether the applicant is a “dependent child” of the primary applicant – Applicant entirely financially dependent on primary applicant – Mistakes in application form – Genuine misunderstanding – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12, Schedule 2, cls 820.311(a)(i), 820.321(a)

CASES
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 22 December 2016 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 August 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the secondary applicant Mr Chi Zhang was a member of the family unit of the primary applicant Ms Bifang Wei.

3. The applicant appeared before the Tribunal on 6 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Bifang. 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. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

7. The Tribunal has taken into consideration all the evidence in the Departmental file BCC2015/2343956, folios nunmbered1-203 and the Tribunal’s case file 1700317 and the oral evidence given at the Tribunal hearing.

8. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

   BACKGROUND

9. The secondary applicant (Chi Zhang) arrived in Australia as the holder of a Student (subclass 573) visa on 10 November 2014. His visa was granted on the basis that he was studying a Masters by Coursework degree in Adelaide. As the secondary applicant he was included on the partner visa application on 14 August 2015.

10. The delegate refused to grant the visa on the basis that the delegate was not satisfied the secondary applicant (Chi Zhang) was a member of the family unit of the primary applicant Ms Bifang Wei.

    ISSUE

11. The issue in the present case is whether; at the time of application the secondary applicant (Chi Zhang) was the dependent child of the primary applicant (Ms Bifang Wei) at the time of application and continues to be at the time of decision.

12. A “member of a family unit” is set out in r.1.12:

    Reg 1.12 Member of the family unit

    (1)     For the definition of member of the family unit in subsection 5(1) of the Act, and subject to

    Subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub regulation called the family head) if the person is:

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

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

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

    (e)a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and
     (ii)  is usually resident in the family head's household; and
     (iii)  is dependent on the family head.

13.      Dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a)  has not turned 18; or (b)  has turned 18 and (i)  is dependent on that person; or (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

1. “Dependent” is defined in r.1.05A:

   1.05A     (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. Relevantly, 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 other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

   Is the visa applicant dependent of the Primary applicant?

3. The secondary applicant has provided a significant amount of additional documentary evidence along with statements from his biological father, stepfather and mother to support his claims.

4. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the secondary applicant during the course of the hearing and also received oral evidence from the secondary and his mother the primary applicant. The Tribunal found the parties explanations to be plausible and found the witnesses to be genuine and truthful in their evidence. Tribunal is satisfied that the parties are credible witnesses.

5. The secondary applicant provided evidence to the Tribunal hearing including, but not limited to the following: his mother has always fully supported supported him with his higher education and he received limited support from his biological father. The secondary applicant stated that his mother supported him with his education in China when he moved to Nanning in southern China to study in 2009. The secondary applicant’s mother stated that she registered to purchase an apartment in 2009 near her son’s university and visited him every two weeks and eventually moved to be Nanning to live with him in 2011. Further stating that the secondary applicant’s biological father was living and working in another city Liuzhou, in China at the time and had little interest in their sons education. The secondary applicant’s mother at the Tribunal hearing said that they lived together for three years at the apartment and that her son was totally reliant upon her for financial support and his basic needs such as food, clothing and shelter. The secondary applicant stated that he lived with his mother in Nanning, Guangxi, from August 2011 to November 2014 when studying Finance and Economics at Guangxi University. The secondary applicant provided a statement from his biological father and documents of home ownership for the property in his mother’s name for the apartment in Nanning, China. 

6. The secondary applicant’s mother also stated that she guided her son to Australia and paid his first tuition fees at the University of Adelaide when he travelled to Australia to study in September 2014 and continued to support him during the course of his studies at the University of Adelaide.

7. The Tribunal raised concerns with applicant as to why he had nominated his biological father as his main benefactor in the Form 47A when the visa application was lodged. The secondary applicant responded that it was a misunderstanding on his behalf when he completed the form stating that his biological father was his main source of financial support. The secondary applicant said that he was unaware of the financial agreement between his biological parents after their divorce in 2013.  The secondary applicant said that he only relied upon his bank statements when completing the form and was unware that the money being deposited into his account by his father was on behalf of his mother the primary applicant. The secondary applicant has provided documentary evidence of his parents divorce agreement.

8. The secondary applicant provided as evidence a copy of his biological parents voluntary divorce agreement (folio DF133) outlining their financial agreements in detail. The secondary applicant has also provided a contribution of living expenses table (folio DF98) and bank statements outlining the financial contribution of his biological parent’s to his living expenses and education. The table shows that his mother has made a financial contribution of $21,706 for the period January 2015 to December 2016. The table shows that the secondary applicant’s father’s contribution is $5,848 for the same period.  The secondary applicant’s mother also states that she entrusted her ex-husband to transfer her rental revenue from the distributions of properties as agreed in their divorce settlement into the secondary applicant’s bank account for his living expenses when she visited him in Australia. The secondary applicant’s mother also provided evidence that she provided cash and transferred money into her sons account for the period March 2015 to August 2015. The applicant told the Tribunal that his mother gave him cash and deposited money into account on a regular basis. The secondary applicant provided numerous financial records to support his claim at the Tribunal hearing.

   FINDINGS

9. The Tribunal has considered the evidence individually and as a whole. The Tribunal is satisfied that the secondary applicant (Chi Zhang) is, and was for a substantial period immediately before the time of application substantially reliant on the primary applicant (mother) for financial support to meet his basic needs for food, clothing and shelter; and that the secondary applicant (Chi Zhang) reliance on the primary applicant (mother) is greater than any reliance Chi Zhang has on any other person, or source of financial support to meet his basic needs for food, clothing and shelter and that this continues to be the case at the time of this decision. The Tribunal finds that the secondary applicant satisfies r1.05A(1)(a).

10. The Tribunal is satisfied that the secondary visa applicant is a member of the family unit of, and made a combined application with, the primary applicant who satisfies the primary criteria in Subdivision 820.321 Therefore, the secondary applicant meets the requirements of cl 820.311(a)(i) of schedule 2 of the regulations

11. 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

12. 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(a)(i) of Schedule 2 to the Regulations; and

    ·cl.820.321(a) of Schedule 2 to the Regulations.

    DECISION

    Russell Matheson
    Member