1515764 (Migration)

[2016] AATA 4470

1515764 (Migration) [2016] AATA 4470 (29 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Concepcion Venus Timms

VISA APPLICANT:  Mr Michael Angelo Venus

CASE NUMBER:  1515764

DIBP REFERENCE(S):  OSF2014/039889

MEMBER:Michelle Grau

DATE:29 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 29 September 2016 at 10:48am

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 16 October 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 8 August 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.101.211 and 101.213.

4. The delegate refused to grant the visa on the basis that cl.101.211 and 101.213 was not met because the visa applicant was 25 years old at time of application and there was no evidence that he was incapacitated for work due to loss of bodily or mental functions.

5. The review applicant, Mrs Timms, appeared before the Tribunal on 29 September 2016 to give evidence and present arguments. The review applicant’s husband, Maxwell Timms, also gave evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Mrs Timms is the mother of the visa applicant. She was granted a permanent resident subclass 100 partner visa in 2009. She and Maxwell Timms were married in the Philippines in 2004.

8. In August 2014, Mrs Timms sponsored Michael Venus, her son, for a child visa.

9. Mr Venus, the visa applicant, was born in February 1989 in the Philippines. There were no details provided in his form 47A of prior employment, education or financial support. Elementary school and college transcript records were provided. At review evidence of money transfers to the visa applicant were provided.

   Applicant must be under 25 or incapacitated for work

10. 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).

    Issue – has the visa applicant turned 25 at time of application?

11. Cl.101.211((1)(b) requires that at time of application the applicant has not turned 25 unless subparagraph (b)(ii) of the definition of dependent child in r1.05A applies.

12. According to the application and birth certificate the visa applicant was born in February 1989 and was therefore 25 years of age at time of application[1].

    [1] August 2014

13. Accordingly, the tribunal finds the applicant has turned 25 at time of application.

    Issue - is the visa applicant wholly or substantially reliant on the sponsor for financial support because he is incapacitated for work due to total or partial loss of his bodily or mental functions?

14. Given the visa applicant had turned 25 at time of application, to meet cl. 101.211, the tribunal needs to be satisfied that he is wholly or substantially reliant on the sponsor for financial support because he is incapacitated for work due to total or partial loss of his bodily or mental functions.[2]

    [2] See paragraph (b)(ii) of definition of dependent child

15. The tribunal explained the legislative requirements and asked if the visa applicant was incapacitated for work due to total or partial loss of bodily or mental functions.

16. Mrs Timms confirmed the visa applicant completed high school, attended college studying hospitality management but he did not finish it. He has worked in part time jobs with McDonalds and Kenny Rogers in the kitchen. He is healthy and not incapacitated. They did not want to interrupt his study, which is why they did not sponsor him to Australia earlier. He has not obtained a full time job as he was waiting for this visa. He lives with Mrs Timms’ sister but they send him money regularly for his basic needs and living expenses. Mr Timms considered it was unfair as the visa applicant only turned 25 in February, which was 6 or 7 months before the application, they send money to him. Mrs Timms said she needs her son to be with her.

17. The tribunal sympathises with the review applicant’s need to have her son with her and that they were not aware of the requirements, he had only turned 25 a few months earlier and they delayed the application because they did not want to interrupt his study and they continue to support him. However, the tribunal has no discretion.

18. There is no medical evidence before the tribunal that the visa applicant is incapacitated for work due to the total or partial loss of bodily or mental functions. Further, the evidence at hearing was the visa applicant has worked in the past and is healthy. Accordingly the tribunal finds the applicant is not incapacitated for work due to the total or partial loss of bodily or mental functions.

19. Therefore, cl.101.211(1)(b) is not met at the time of application, and does not continue to be met at the time of decision.

20. 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

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

    Michelle Grau
    Member

    
    
    ATTACHMENT – Relevant law

    Migration Regulations 1994

    101.21  Criteria to be satisfied at time of application

    101.211

    (1)  The applicant:

    (a)  is a dependent child of:

    (i)  an Australian citizen; or

    (ii)  the holder of a permanent visa; or

    (iii)  an eligible New Zealand citizen; and

    (b)  subject to subclause (2), has not turned 25; and

    (c)  either:

    (i)  is:

    (A)  the child (other than an adopted child); or

    (B)  the step-child within the meaning of paragraph (b) of the definition of step-child;

    of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or

    (ii)  was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

    (2)  Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

    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.

    …