Zheng (Migration)

[2019] AATA 3139

Zheng (Migration) [2019] AATA 3139 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lujia Zheng

VISA APPLICANT:  Mrs Qizhi Liu

CASE NUMBER:  1725157

DIBP REFERENCE(S):  OSF2014/031757

MEMBER:Angela Cranston

DATE:3 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a contributory parent visa.

Statement made on 03 April 2019 at 5:09pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) – Subclass 143 – sponsorship issue – named sponsor not related to applicant – not a child or spouse of child – migration agent’s error – sponsor is the only child – widowed mother – form 40 and sponsorship undertakings now completed – compassionate circumstances – referred for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 143.212

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 Immigration on 5 October 2017 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa itself is for the parent of a person (the child) who is a settled Australian citizen, permanent resident or eligible New Zealand citizen and cl 143.212 provides that if the applicant’s child has turned 18, then the applicant must be sponsored by that child or the child’s cohabitating spouse or de facto partner, if that spouse or de facto partner has turned 18; and is a settled Australian citizen; or settled Australian permanent resident; or  a settled eligible New Zealand citizen.

3. The visa applicant applied for the visa on 12 November 2014. No sponsorship details were provided on the application form.

4. A covering letter dated 14 August 2014 included a sponsorship for migration to Australia (form 40) that was in the name of Kenneth Yee Hong Cheung and signed on 28 July 2017.

5. Also on file is a letter dated 7 April 2017 asking the review applicant to provide an assurance of support. A further letter dated 14 July 2017 asks for the original sponsor to complete the form 40 – sponsorship for Migration to Australia.

6. On file is also the following letter dated 1 September 2017 from the Department to the visa applicant’s adviser:

   An application for a subclass 143 contributory parent visa was lodged at the parent visa centre on 12 November 2014 for Ms Qizhi Liu. No sponsor was appointed at the time of application lodgement part C sponsor’s details was left blank on the form 47PA and no completed form 40 sponsorship for migration to Australia was included with the application.

   Within the form 47PA, Ms Liu declared two children – Ms Lujia Zheng DOB 13/12/1974, a settled Australian citizen and Ms Lijia Zheng DOB 1/12/1977, declared as deceased. Ms Lujia Zheng, Ms Liu’s only living child, was not appointed as sponsor of the application.

   On 21 August 2017 correspondence was received via email from the authorised migration agent, Mr Xuerong Xie. The correspondence included a completed form 40 sponsorship for migration to Australia.

   Within the form, the sponsor was declared as Mr Kenneth Yee Hong Cheung DOB 15/7/1952, a settled Australian citizen. …

   At question 2 on the form 40 the relationship was specified as friend but this has then been crossed out….

   The appointed sponsor Mr Kenneth Yee Hong Cheung does not appear to be a child of Ms Qizhi Liu or the spouse of the applicant’s child Ms Lujia Zheng…

   If Mr Kenneth Yee Hong Cheung is indeed a friend of Ms Qizhi Liu as initially advised on the form 40 (before been crossed out), Mr Cheung will not be an eligible sponsor for the application.

   As Ms Qizhi Liu does not have an eligible sponsor for the parent visa application she does not satisfy clause 143.212.

   7.    The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.143.212. The delegate stated as follows:

   An application for a subclass 143 was lodged at a parent visa centre on 12 November 2014 for Ms Qizhi Liu…

   No sponsor was appointed at the time of application lodgement, sponsors details was left blank on the form 47PA and no completed form 40 sponsorship for migration to Australia was included with the application.

   Within the form 47PA Ms Liu declared two children Ms Lujia Zheng date of birth 13/12/1974, a settled Australian citizen and Ms Lijia Zheng date of birth 1/12/1977 declared as deceased. Ms Lujia Zheng, Ms Liu’s only living child was not appointed as the sponsor of the application at the time of lodgement of the application.

   On 21 August 2017 correspondence was received via email from the authorised migration agent Mr Xuerong Xie. The correspondence included a completed form 40 sponsorship for migration to Australia.

   Within the submitted form 40 the sponsor was declared as Mr Kenneth Yee Hong Cheung date of birth 15/7/1952 a settled Australian citizen. No additional documentation had been provided to demonstrate Mr Cheung’s relationship to Ms Liu, therefore it was unclear as to what Mr Cheung’s relationship was to Ms Liu or Ms Liu’s daughter, Lujia Zheng.

   At question 2 on the form 40 the relationship was specified as friend but this had then been crossed out. At part B on the form 40, Mr Cheung was also specified as being Ms Liu’s current or former partner however no evidence to substantiate this relationship was provided.

   Mr Cheung did not seem to be Ms Liu’s current partner as both Ms Liu and Mr Cheung declared their individual relationship status as divorced. He also does not seem to be her former partner as Ms Liu had only previously declared two former partners, her first husband and the father of her daughter Mr Zhihua Zheng, who she divorced previously and her second husband Mr Jing Cheng Wu, who is deceased.

   There is no evidence to suggest that Mr Cheung is one in the same person as Mr Zhihua Zheng, the father of Lujia Zheng, as Mr Cheung has declared in the form 40 that he has not previously been known by any other names and no change of name documentation has been provided.

   It has been stated within the form 47PA that Mrs Liu’s child Ms Lujia Zheng is married however there is no evidence to suggest that Mr Cheung is her spouse as Ms Zheng’s marriage certificate has not been provided and also taking into account that Mr Cheong has declared himself as divorced.

   In order to satisfy the sponsorship criteria is an eligible sponsor the person appointed as the sponsor must be new line the applicant’s child if over 18 years of age or the applicant’s child is cohabitating spouse or a relative or guardian of the applicant’s child

   The appointed sponsor Mr Kenneth Yee Hong Cheung does not appear to be a child of Ms Qizhi Liu or the cohabitating spouse of the applicant’s child Ms Lujia Zheng. There is also no evidence to demonstrate that Mr Cheong is a relative or guardian of the applicant’s child Lujia Zheng, however even if it he was demonstrated to be her father, as she is over 18 years of age he cannot act as sponsor on her behalf. No evidence has been provided to demonstrate the Mr Cheong meets any of the criteria to be considered an eligible sponsor.

   8.    The review applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   9.    The review applicant was represented in relation to the review by her registered migration agent.

   10.      The Tribunal put to the review applicant that the Department said that at the time of application there was no sponsorship but what was submitted when asked was a sponsorship form from Mr Cheung. The review applicant confirmed that Mr Cheung was her friend.

   11.      The Tribunal put to her that she or her spouse should have sponsored the applicant at time of application which had not happened. The Tribunal put to her that the sponsorship undertakings meant she undertook to do certain things such as pay for the applicant during the two years immediately following her first entry into Australia. The Tribunal also put to her that had not been done.

   12.      The review applicant stated she filled in that information when she lodged the visa application. The Tribunal put to her it had not seen any evidence of that and the Department made its decision on the basis that there was no evidence. The Tribunal also put to her there was no evidence that she lodged a sponsorship form. She stated she had lodged that kind of information and had lodged evidence of her properties, bank statements and utility bills. The Tribunal put to her there was no evidence that she had lodged a sponsorship form for the applicant. The applicant asked if she could submit the documents now and the Tribunal put to her that the applicant needed to meet time of application criteria. 

   13.      The adviser stated the sponsorship details were wrong. He also stated that the department had requested the assurance of support which had been received.

   14.      Following the hearing the Tribunal received the following:

   I handed in the application for my mum on 2014 and I received an email for DIBP on 17/7/2017 requested me to provide form 40, form 80 form 956, health requirement, also and I was asked to prepare visa application charge ($43,600) and assurance of support. To my understanding even if I didn’t attach the form 40 at the first time, the application is effective from DIBP’s view.

   After I received this email, I thought it’s better to find professional to do it for me because my English was not that good so I appointed Mr Xue Rong Xie from Xclent migration and education service to handle my case, I gave them all the personal information needed. Due to their negligence the person for assurance of support was wrongly filled as the sponsor.

   As you can see from attached files my mum is alone in Shanghai after my father passed away in 2014 and my sister died in 2010 in the States, and she missed her grandchildren a lot.

   I would like to ask a favour to give me a chance to correct my form 40 since I got the Australian citizenship in 2017 and I have the ability to support her stay in Australia in the future. Please see attached council rate and utility bills.

   15.      Following the hearing, the Tribunal wrote to the review applicant asking for any evidence that at the time of application on 12 November 2014, Ms Lujia Zheng undertook to assist Ms Qizhi Liu, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following Ms Qizhi Liu’s first entry into Australia as the holder of a contributory parent visa.

   16.      The Tribunal received the following:

   I lodged subclass 143 to Immigration Department on November 2014 and I remember I did include some of my financial information in the application.

   Please find following supporting documents for reference:

   Home property owned by me, locate at [address deleted] value around [amount], it is a five bedroom two story house. I have three kids and there is enough room for my mum to stay with us.

   I have another investment property at [address deleted]. Rental income is about [amount] a week, valued around [amount].

   I found to [Bank 1] bank accounts in 2014 but actually my main bank transaction was in [Bank 2] during 2010-1014 period, but the account was closed, I went to [Bank 2] [suburb] branch yesterday to print the statement but was told they could not find, any how I found a copy of payment of smoke alarm from [Bank 2] account from previous email.

   I also went to [Bank 3] to print my statement of that period but since it’s offset account of my mortgage, it only shows the mortgage account. Anyhow, attached the screenshot from Internet banking.

   I would like to ask a favour to reconsider my situation and the error made on the application for sponsorship. I believe I have the ability to support my mother’s stay in Australia for a two-year period. The mother is turning 70 this year and she is alone in Shanghai, she is looking forward to staying with her grandchildren to enjoy family life together.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   18.      The issue in the present case is whether at the time of application, the applicant has been sponsored in accordance with the legislation. According to that legislation a person who applies for a Contributory Parent Migrant (class CA)(subclass 143) visa must establish that they meet the requirements set out in Part 143 in Schedule 2 to the Regulations. According to cl.143.212, an applicant must be sponsored and according to cl.143.212(2), if the (sponsoring) child has turned 18, parents must be sponsored by the child or his or her cohabitating spouse or de facto partner and who is a ‘settled’ Australian citizen, permanent resident or eligible New Zealand citizen.

   19.      As discussed with the review applicant at hearing, in order to satisfy the sponsorship criteria as an eligible sponsor, the applicant must be sponsored at the time of application and the sponsor must be the applicant’s child (if over 18 years of age) or the applicants child’s cohabitating spouse can also act as the sponsor on their behalf.

   20.      No sponsor was appointed in the application form at the time of application and no completed form 40 sponsorship for migration to Australia was included in the application.  On 21 August 2017 correspondence was received including a form 40 sponsorship declaring that the applicant’s appointed sponsor was Mr Kenneth Yee Hong Cheung however that was not received at the time of lodgement of the visa application and he is not the child of the applicant nor is he the spouse or de facto partner of a child of the applicant.

   21.      Although the review applicant has now provided a form 40 dated 7 March 2019 stating, there is no evidence that the review applicant signed the form 40 at the time of application. Nor is there anything in the further evidence that was provided that can be construed as evidence that the review applicant undertook sponsorship obligations in relation to the applicant at the time of application. Accordingly, the applicant does not satisfy clause 143.212.

   Ministerial Intervention

   22.      The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3) and will refer the matter to the Department.

   23.      Evidence before the Tribunal indicates that the review applicant has completed a form 40 and has now provided sponsorship undertakings in relation to the applicant. In such circumstances, there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship for the sponsor in that she would be separated from her mother.

   24.      The Tribunal is satisfied that the circumstances are such that they fall within the Guidelines for the possible consideration by the Minister.

   25.      The Tribunal supports referral to the Minister for his consideration and will refer the matter to the Department.

   FINDINGS

   26.      For the reasons above, the applicant does not meet the criteria for a Subclass 143 visa.

   27.      The Tribunal affirms the decision not to grant the applicant a contributory parent visa.

   Angela Cranston
   Member