1410339 (Migration)

[2015] AATA 3041

1410339 (Migration) [2015] AATA 3041 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Caitlin Ashley Whittle

CASE NUMBER:  1410339

DIBP REFERENCE(S):  CLF2013/313834

MEMBER:Kira Raif

DATE:2 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2015 at 9:12am

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 May 2014 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the UK, born in June 1997. She made an application to the Department of Immigration for the visa on 23 December 2013. The delegate refused to grant the visa on the basis that cl.802.212 was not met because the delegate was not satisfied the applicant was the child of the sponsor. The applicant seeks review of the delegate’s decision

3. Mr Ross, the applicant’s biological father, appeared before the Tribunal on behalf of the applicant on 2 July 2015 to give evidence and present arguments.

4. The issue before the Tribunal is whether the applicant is the child of the sponsor. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

6. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212.

7. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

8. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). Section 5(1) provides that the term ‘child’ has a meaning affected by s. 5CA. Relevantly, s. 5CA(2) states that the regulations may provide that, for the purpose of this Act, a person specified by the regulations is not a child of another person in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

9. Regulation 1.14A is relevant in this case and provides that

   …
   (2)      For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):

   (a)      the child is taken to be the child of the adoptive parent or parents; and

   (b)      the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).

   Is the applicant the child of the sponsor?

10. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates that the sponsor, Mr Ross, is the biological father of the applicant. However, the applicant also presented with her application evidence that she had been formally adopted by Mr Ian Whittle.

11. The Tribunal finds in accordance with r. 1.14A, that the applicant had been adopted under formal adoption arrangements. She is therefore taken not to be the child of any person other than the adoptive parent. In reaching this finding, the Tribunal acknowledges that the sponsor is the biological parent and would have been considered the applicant’s parent before the adoption.

12. The Tribunal is not satisfied that the applicant is a child of the sponsor. The Tribunal is not satisfied that she meets cl. 802.212.

13. In reaching this conclusion, the Tribunal acknowledges the written submissions from Mr Ross, received on 29 June 2015. The Tribunal accepts that there is a strong relationship between the applicant and her biological father. The Tribunal accepts the claims made in the submission. The Tribunal also acknowledges Mr Ross’ oral evidence to the Tribunal that the adoption was not done in accordance with the applicant’s or his, wishes. However, the Tribunal has no discretion to waive the requirements of cl. 802.212.

14. Mr Ross has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. 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) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

15. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif
    Senior Member