1505180 (Migration)

[2016] AATA 3905

1505180 (Migration) [2016] AATA 3905 (23 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Syamsuddin Amahoru

VISA APPLICANT:  Miss Esa Saadatul Asbandiya Amahoru

CASE NUMBER:  1505180

DIBP REFERENCE(S):  2014/031230

MEMBER:Margie Bourke

DATE:23 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211 and cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221(2) of Schedule 2 to the Regulations.

Statement made on 23 May 2016 at 10:03am

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 1 April 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 1 September 2014. 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).]

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied that after the visa applicant turned 18 years she did not undertake full time study within six months or a reasonable time after completing her senior high school.

5. The review applicant appeared before the Tribunal on 16 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s son Fuad and his older daughter Nia, and the visa applicant gave evidence via telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The main issue in this case is whether the visa applicant, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, has been undertaking has been undertaking a full time course of study at an educational institution leading to an award of a professional, trade or vocational qualification.

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is 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).

   Dependent child

10. 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, which is extracted in the attachment to this decision. 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.

11. 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], [44].

12. The tribunal has considered the visa applicant’s translated birth certificate and the application form for the visa.  The tribunal is satisfied that the visa applicant was born on 16 September 1995.  The Department file contains a receipt for the application dated 25 August 2104, and correspondence records the application for the visa was lodged on 1 September 2014. The tribunal is satisfied that on 1 September 2014 the visa applicant was 18 years of age.  Therefore, at the time of application, the visa applicant was 18 years.

13. There is no evidence before the tribunal that the visa applicant is incapacitated for work due to partial or total loss of bodily or mental functions.

14. The tribunal has considered the oral and document evidence before it. The tribunal is satisfied that the visa applicant’s parents separated in the year 2000, and the children remained with the mother in the home purchased by the father, (when the parents were together). The tribunal has considered the visa applicant’s birth certificate and is satisfied the review applicant is the visa applicant’s father. The tribunal accepts the review applicant came to Australia in 2004.

15. The tribunal has considered the money transfer receipts provided to the tribunal by the review applicant.  The tribunal noted the review applicant had a collection of many more receipts with him at the hearing. The tribunal has considered the evidence of all the witnesses that since the separation in 2000, the review applicant has provided financially for the three children.  The tribunal has considered the evidence of the witnesses that the review applicant provided financially directly to the older daughter, and gave money directly to the visa applicant only after 16 September 2013 when she had turned 18.

16. At the time of application, being 1 September 2014, and for a substantial period prior to that time (and the tribunal has determined a substantial period is 12 months) the tribunal is satisfied that the visa applicant resided in the home of her parents.  The tribunal accepts the house was purchased by her father during his marriage to her mother.  The tribunal accepts the ownership of the home is not clear after the review applicant came to Australia, but will probably be deemed to be owned by the visa applicant’s mother. The tribunal accepts the ownership of the home is not clear but the parties accept the shelter of the visa applicant was provided by her residing in the marital home. The tribunal is satisfied that at the time of application and for a period of 12 months immediately before that time, shelter was provided to the visa applicant by being able to reside in the home of her parents. The tribunal accepts that the visa applicant’s father did not reside in the home at this time, and that her mother rarely resided there. However, the tribunal accepts that in these circumstances, the visa applicant’s parents have jointly provided the shelter needs of the visa applicant at the time of application and for the 12 months immediately prior to that time.  The tribunal is satisfied these circumstances continue at the time of decision.

17. The tribunal is satisfied that the review applicant has provided the financial support for the visa applicant to enable her to be able to financially support herself and purchase her basic needs of food and clothing.  The review applicant has provided the financial means for the visa applicant to purchase food, clothes, books and all her other needs.  The tribunal accepts the visa applicant’s oral evidence in the hearing that her father was her ‘100%’ means of income for many years.   The tribunal is satisfied in these circumstances that the visa applicant’s reliance on her father for financial support, continues at the time of decision.

18. The tribunal is satisfied that at the time of application, and for 12 months immediately before that time, the visa applicant was wholly or substantially dependent on the review applicant for financial support to meet her basic needs of food, clothing and shelter.  The tribunal is satisfied that the visa applicant’s reliance on the review applicant for financial support, was greater than her reliance on any other source of financial support, to meet her basic needs of food, clothing and shelter.  The tribunal is satisfied that the visa applicant is dependent on the review applicant within the meaning of r.1.05A, and is a dependent child within the meaning of r.1.03. The tribunal is satisfied the visa applicant is the dependent child of the review applicant at the time of application on 1 September 2014, and continues to be the dependent child of the review applicant at the time of this decision.

19. Accordingly, cl.101.211(1)(a) met at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

20. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2).

21. Based on the visa applicant’s date of birth recorded in her translated birth certificate and on her passport, she was born on 16 September 1995.  At the time of application the visa applicant was aged 18 years and had not turned 25 years.  At the time of decision the visa applicant is aged 20 years and has not turned 25 years.

22. Accordingly, cl.101.211(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Child-parent relationship

23. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

24. Based on the visa applicant’s translated birth certificate the tribunal is satisfied the visa applicant is the biological daughter of the review applicant. Based on the review applicant’s certificate of Australian citizenship, the tribunal is satisfied the review applicant was granted Australian citizenship on 6 May 2014. Therefore at the time of application the visa applicant was the child of an Australian citizen parent, within the meaning of r.1.03.

25. Accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

    Conclusion about dependent child criteria

26. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a) are met.

    Additional criteria for applicants over 18

27. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Relationship status

28. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a).

29. The tribunal accepts the review applicant spoke to the visa applicant on a weekly basis in 2013 and early 2014, and since mid 2014 he has spoken to her each night. The tribunal accepts the visa applicant’s sister Nia lived with the visa applicant until 2015.  The tribunal has considered the oral evidence of the witnesses about the visa applicant’s relationship status. Based on the consistent evidence before it, the tribunal is satisfied that at the time of application the visa applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. The tribunal is satisfied that at the time of decision the visa applicant is not engaged to be married, and does not and has never had a spouse or de facto partner.

30. Accordingly, cl.101.213(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Not engaged in full-time work

31. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b).

32. The tribunal has considered the oral evidence before it, and the evidence of the money transfer receipts.  The tribunal is satisfied that the review applicant has financially supported his daughter the visa applicant for many years.  The tribunal accepts the consistent evidence that the visa applicant has never had employment of any kind, at the time of application, or since that time.  The tribunal is satisfied the visa applicant was not engaged in full time work at the time of application or at the time of decision.

33. Accordingly, cl.101.213(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

34. At the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

35. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

36. The tribunal is satisfied that the visa applicant turned 18 on 16 September 2013.  Based on the visa applicant’s graduation certificate, the tribunal is satisfied that the visa applicant completed her high school on 24 May 2013. The tribunal is satisfied the Indonesian secondary school system is equivalent to the Australian system, and the graduation from senior high school is evidence that the visa applicant had completed the equivalent of year 12 in the Australian school system.

37. The visa applicant provided a translated and original certificate from the Akademi Bahasa Asing Nasional (the National Academy of Foreign Languages) which confirmed the visa applicant enrolled and commenced study in the first semester of the 2014 / 2015 study year. The visa applicant provided the tribunal with a translated letter from the dean of the faculty of letters, from the Universitas Nasional that states she is registered in the English Literature study program for the 2015 / 2016 academic year.   The two translated documents had the same address, and the tribunal made enquiries with the education institution and was advised the visa applicant attended the university, the dean was employed there, the university was the same establishment but the faculty of languages had changed its name in 2015 which explained the different name on the letter head on the documents. The tribunal is satisfied based on the evidence before it that the visa applicant commenced full time study at an educational institution on 1 September 2014.

38. Based on the evidence before it, the tribunal is satisfied that the visa applicant wished to attain a qualification in accounting or economics. The tribunal is satisfied that she followed her father’s instructions to study English so that she could better obtain an accounting or economics qualification in an Australia university studying in English.  The tribunal is satisfied the visa applicant is studying a foreign language on a full time basis, which could lead to a professional trade or vocational qualification such as interpreter. However the tribunal is satisfied the visa applicant followed her father’s advice and undertook a full time course of study in English language, in order that ultimately she could progress to undertake a further course of full time study in Australia in her preferred course of accounting or economics. The tribunal is satisfied that the visa applicant was undertaking a full time course of study at an educational institution leading to a professional, trade or vocational qualification, at the time of application, and was continuing to do so at the time of this decision.

39. The issue is whether the visa applicant began undertaking the full time course of study within a  reasonable time of completing her equivalent of the year 12 in the Australian school system. The visa applicant completed her senior high school on 24 May 2013, and turned 18 on 16 September 2013. She commenced the full time study on 1 September 2014, a period of 15 months after the visa applicant completed her senior high school.

40. The tribunal has concluded that in the visa applicant’s circumstances that this was a reasonable time for the following reasons. The visa applicant’s father was in Australia, and had been so since 2004, or when the visa applicant was under ten years old.  The visa applicant’s brother had also come to Australia on 19 January 2013. The visa applicant’s mother was rarely home, was away a lot, and based on the oral evidence before the tribunal, the visa applicant’s mother had been distressed since the review applicant remarried in 2010.  The visa applicant’s older sister Nia stated that she herself was focussed on her own study and felt it was inappropriate or insensitive to interfere in her sister’s choices after leaving school, and so she left her younger sister alone. The visa applicant was aged 17 years when she completed high school. The visa applicant told the tribunal she cried a lot but never told anyone. The tribunal accepts the visa applicant asked her mother for advice about further study but her mother was not interested. The tribunal accepts that when the visa applicant eventually discussed the situation with her father, she followed his advice and enrolled in the full time language and literature course.  The visa applicant commenced study at the commencement of the academic year one year after she had completed high school. The tribunal has considered the visa applicant was only seventeen when she completed high school, that she had no parental guidance at that time due to her particular circumstances and that she commenced full time study when her father gave her advice from overseas.  The tribunal considers the visa applicant was emotionally stalled by her particular circumstances.  The tribunal considers the actual period of time involved prior to her commencement of full time study was relatively short.  For these reasons, the tribunal is satisfied the visa applicant commenced full time study within a reasonable time after completing the equivalent of year 12 in the Australian school system.

41. Accordingly, cl.101.213(1)(c) is met at the time of application, and continues to be met at the time of decision.

    Conclusion on additional criteria for applicants over 18

42. For the reasons above, cl.101.213 is met at the time of application. 

43. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

44. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

1. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

   ·cl.101.211 and cl.101.213 of Schedule 2 to the Regulations; and

   ·cl.101.221(2) of Schedule 2 to the Regulations.

   Margie Bourke
   Member

   
   

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   1.03     Definitions

   …

   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.

   1.05A Dependent

   (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.

   …