【Classic Cases】FX (Migration) [2018] AATA 7XX

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms SXX HXXg FX

VISA APPLICANT: Ms YXX WXX ChXXg

CASE NUMBER: 16XXX21

DIBP REFERENCE(S): 20150XXX37

MEMBER: Kira Raif

DATE: 13 March 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 13 March 2018 at 7:31am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Whether the applicant is a “dependent child” of the sponsor – Whether applicant is reliant on any other source – Applicant reliant on housing provided by government – Applicant not “dependent” on the sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.05A, Schedule 2, cls 101.211, 101.221

CASES

Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

Application for review

 This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 March 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

The visa applicant is a national of China (HKSAR) born in December 1996. She applied to the Department of Immigration for the visa on 24 March 2015. The delegate refused to grant the visa on the basis that cl.101.211 of the Migration Regulations 1994 was not met because the delegate was not satisfied the visa applicant was a dependent child of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

The review applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Relevant law

 At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

The criteria in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, either under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39] and [44].

Dependent child

 The review applicant provided to the Tribunal a copy of the primary decision record.

The visa applicant was born in December 1996 and was over the age of 18 at the time she made the application for the visa. There is no evidence before the Tribunal that the visa applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

The visa applicant claims in her application that she has been financially dependent on her mother. The delegate noted that the visa applicant has been living with her father and grandmother for a number of years and that the financial support provided by the mother, as evidenced by a number of money transfers, was below the minimal living standard in Hong Kong. The delegate formed the view that the visa applicant could not subsist on the income from the mother and was not satisfied the visa applicant had no other source of income.

The visa applicant’s representative provided a lengthy written submission to the Tribunal on 7 March, a day before the hearing and nearly two years after the application for review was made. No explanation has been offered by the visa applicant’s representative for the late submission of documents, nor for the representative’s decision not to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The visa applicant was represented by  AHL Legal .

In her written submission to the Tribunal the review applicant outlines what she considers to be errors in the primary decision. Essentially, the review applicant submits that the delegate erred by referencing financial reliance to living standards in Hong Kong and the Tribunal accepts that an assessment of the minimum living standards may not be useful in establishing whether the visa applicant had any other source of income because it is necessary to determine, as a matter of fact, whether the visa applicant’s reliance on her mother and not what level of support could or should have been provided. The visa applicant outlines the nature of the financial support she receives from her mother. With respect to accommodation, the visa applicant submits that living in the grandmother’s property is not an indication that she was reliant on her grandmother for shelter but shelter is her legal entitlement and she should not be expected to move elsewhere.

The Tribunal considers that submission odd. It is not in dispute (and it is indeed the visa applicant’s submission) that determining reliance for basic needs requires a finding of fact. In this case, if the visa applicant was residing with her grandmother at a property owned by the grandmother, or in public housing, and if it was the grandmother who met the financial responsibilities in relation to that property, the facts may indicate that the visa applicant was reliant on the grandmother or the Hong Kong government for shelter, whether or not the visa applicant believes it was her entitlement to live there. The visa applicant suggests that it would be unreasonable to expect her to arrange alternative housing when she already has housing available and that may well be the case, but the issue here is not whether alternatives are reasonable or convenient and it is not the question of the visa applicant’s need to rely on her mother in circumstances where she has a property available to her. It may be entirely reasonable for the visa applicant to live at her grandmother’s home but the reasonableness of these arrangements does not diminish the fact that the visa applicant is not reliant on her mother for financial support for shelter but relies on other sources.

The visa applicant’s submission to the Tribunal, which the Tribunal considers to be correct, is that it is not necessary to assess the minimum living standards in Hong Kong because it is necessary to assess the factual circumstances in this case. That is consistent with the reasoning in Huynh. However, the same reasoning applies in relation to shelter. It is not necessary to assess whether the visa applicant could have lived elsewhere and whether that would have been appropriate in her circumstances. The visa applicant did live with her grandmother and continues to live in public housing accommodation and in the Tribunal’s view that indicates she was not wholly or substantially reliant on her mother for financial support for shelter.

The visa applicant addressed in her written submission the delegate’s concerns about the reasons for her separation with her mother. The Tribunal does not consider this to be relevant in determining dependence. The issue here is not physical dependence but financial reliance and the reasons why the visa applicant separated from her mother do not assist the Tribunal in determining such reliance.

The Tribunal questioned the visa applicant and the review applicant about the visa applicant’s living arrangements in oral evidence. With respect to accommodation, the review applicant told the Tribunal that until 2013 or 2014 the visa applicant lived with her paternal grandmother and since the grandmother passed away, the visa applicant lives with an aunt and cousins at a public housing property owned by the grandmother. The review applicant said that she does not contribute to any of the expenses associated with the property and she was not sure what such expenses were. The review applicant subsequently stated that the visa applicant has to pay her share of the expenses associated with the property, including water and other bills. Although the Tribunal is mindful that this evidence contradicts the review applicant’s earlier evidence, the Tribunal accepts that there may be costs associated with the property maintenance, including water and electricity. Both the review applicant and the visa applicant told the Tribunal that these costs are shared by the visa applicant’s aunt and cousins who live at the same property. Their evidence to the Tribunal is that the visa applicant’s contribution for these expenses is one quarter of the expenses.

The review applicant told the Tribunal that the property where the visa applicant lives is public housing owned by the grandmother and has the visa applicant’s name on it as well, so there is no need for the visa applicant to rely on anyone else for shelter. However, consideration of need does not arise (Huynh). It may be that the visa applicant does not need to rely on her mother for shelter but there must be a finding of fact as to where such reliance lies.

The Tribunal finds, having regard to the visa applicant’s and review applicant’s evidence, that the visa applicant lives in a public housing property which belonged to her and her late grandmother. The Tribunal finds that such property is owned either by the visa applicant and her late grandmother or by the Hong Kong Government and not by the sponsor. The Tribunal accepts that the review applicant contributes a quarter of the expenses associated with the running of the property.

The Tribunal is of the view that the dependence requirements in r.1.05A require dependence for all three elements: food, shelter and clothing. If one of these elements (in this case, shelter) is not present, the requirements of r.1.05A cannot be met. The Tribunal is not satisfied on the evidence before it that the visa applicant is reliant on her mother for financial support for shelter and that such reliance on her mother for shelter is greater than her reliance on any other source (the HK Government). In the absence of relevant reliance for financial support for shelter, the Tribunal is not satisfied the visa applicant meets the definition of dependence in r.1.05A.

The visa applicant’s representative argues that it is necessary to consider reliance for food shelter and clothing in combination. The Tribunal is not convinced this is the correct interpretation, given that the legislation requires reliance for financial support for all three elements: food and shelter and clothing. However, even if the requirement is to consider these elements in combination, the Tribunal is not satisfied that the visa applicant’s reliance on her mother for food, shelter and clothing would be whole or substantial or greater than on any other source in circumstances where the property is owned by the HK government and the review applicant’s contribution towards the cost of running the property is minimal.

The review applicant’s representative claims that the system in Hong Kong is very different to the system in Australia. The representative notes that the visa applicant lives in public housing and there are no costs involved, which is not usually the case in Australia, and she was added to the property at the age of two. The representative submits that it would not be appropriate to require the visa applicant to move to a different property for the purpose of the visa. The representative submits that the law must be applied flexibly and this is a genuine application and there is a close relationship between the visa applicant and her parents in Australia. The Tribunal does not consider that it has any flexibility to apply the law differently depending on the visa applicant’s country of residence or particular housing circumstances. What is relevant here are the visa applicant’s particular circumstances, rather than the circumstances and the cultural norms in her country of residence. The Tribunal does not consider there is any ambiguity in the definition of dependence that would justify a different interpretation and there is no discretion in recommending visa grant when the Tribunal forms the view that the statutory requirements are not met.

For the reasons stated above, the Tribunal is not satisfied the visa applicant is reliant on her mother for financial support for her basic needs of food, shelter and clothing. The Tribunal is not satisfied that the visa applicant is dependent on her mother and finds that she is not a dependent child. The Tribunal is not satisfied the visa applicant meets cl.101.211 and cl.101.221.

Having made that finding, it is not necessary for the Tribunal to consider the visa applicant’s study for the purpose of cl. 101.213. The Tribunal acknowledges the review applicant’s evidence of 12 March 2018 confirming the visa applicant’s ongoing enrolment in a full-time course at the time of this decision.

There is no suggestion that the visa applicant is an adopted child of the sponsor and she does not meet the requirements for the grant of the Subclass 102 (Adoption) visa. She is sponsored by her mother, whose whereabouts are known and who is not incapacitated, and the visa applicant does not meet the requirements for the grant of the Subclass 117 (Orphan Relative) visa.

Conclusion

 For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

DECISION

 The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Kira Raif

Senior Member