1517659 (Migration)

[2016] AATA 4043

1517659 (Migration) [2016] AATA 4043 (4 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natasha Nyasha Nobuhle Gomwe

CASE NUMBER:  1517659

DIBP REFERENCE(S):  CLF2015/61805

MEMBER:Hugh Sanderson

DATE:4 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2016 at 4:14pm

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 2 December 2015 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 applied to the Department of Immigration for the visa on 6 October 2015. 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). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.802.221(1A) was not met because the delegate found that the applicant did not meet the definition of a “stepchild” in reg.1.03(b) of the sponsor.

   Background

4. The applicant was born in Zimbabwe and is a citizen of the United Kingdom. She was born on 11 October 1990 and is currently 25 years old. At the time of the application, she was 24 years, 11 months, and 26 days old.

5. The sponsor of the applicant is Clemence Matiska. He first entered Australia on 28 October 2011 holding a subclass 457 Temporary Work visa. He was then granted a subclass 187 Regional Sponsored Migration Scheme visa. He is the stepfather of the applicant. He is married to the applicant’s mother, Susan Matiska. Ms Matiska was granted the same visas as her husband as his dependant.

6. In the sponsorship form, the sponsor stated that the applicant was his stepchild. He stated that the applicant was not the child of his former partner. In the sponsorship form it stated as follows:

   You CANNOT sponsor your step-child where that child is the child of your current partner. (sic)

7. The delegate who considered the application noted the applicant claimed to be the stepchild of the sponsor. The delegate noted that the applicant was required to meet the criteria in cl.802.212(1A) which stated that if the applicant is a stepchild of the sponsor, the applicant is a stepchild within the meaning of paragraph (b) of the definition of stepchild.

8. The definition of stepchild is set out in reg.1.03. The definition in (b) states as follows:

   a person who is not the child of the parent but:

   i.who is the child of the parents former spouse or former de facto partner; and

   ii.who has not turned 18; and

   iii.in relation to whom the parent has:

   A.a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child is long-term or day-to-day care, welfare and development; or

   B.guardianship or custody, whether jointly or otherwise, under a Commonwealth, state or territory law or a law in force in a foreign country.

9. The delegate found that as the mother of the applicant was in a continuing relationship with the sponsor at the time of the application the applicant did not meet the criteria in cl.802.212(1A) or the time of decision criteria in cl.802.221.

10. The applicant made submissions to the tribunal arguing that the decision of the department was wrong for the following reasons:

    ·She genuinely believed the sponsor met the residency criteria as he was the head of the household and she was dependent upon him;

    ·If she had been aware of the law she would have made her mother her sponsor; and

    ·She has been dependent upon her mother and stepfather for a long time.

11. In her application, the applicant stated that she finished secondary school in July 2007. She stated that from August 2007 until August 2010 she was employed as a sales assistant. She then stated that she was employed as a health care assistant at Cambridge University Hospital.

12. The applicant provided a European diploma supplement from the Anglia Ruskin University stating that between 27 September 2010 and 23 May 2014 she had been studying for a Certificate of Higher Education Applied Health Studies. The course was stated to be a three-year full-time course.

13. The applicant appeared before the tribunal on 23 June 2016 to give evidence and present arguments. The applicant’s mother and a friend also attended the hearing. 

14. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the sponsorship of the applicant by her step-father meets the requirements in cl.802.212(1A). This requires that as the stepchild of the sponsor, the applicant is the child of the sponsor’s former spouse or de-facto partner and there is a parenting order in favour of the stepfather.

16. The applicant’s mother and stepfather remain in a relationship with each other and there is no parenting order in respect of the applicant. As such the applicant does not meet the criteria in cl.802.212 at the time of the application or cl.802.221 at the time of the decision and the decision to refuse the application must be affirmed.

17. The tribunal notes the submissions made by the applicant that the refusal of the application on the basis that the applicant was sponsored by her stepfather and not her mother is a technicality which would have been able to be overcome if the applicant were sponsored by her mother. The tribunal does not have any discretion in applying the legislation. Although the applicant may have been sponsored by her mother which may have satisfied the criteria in cl.802.212(1), the fact is that she was not sponsored by her mother and therefore does not meet this criteria.

18. The tribunal notes that a further criteria for the grant of the visa in cl.802.214(1)(c) requires that for an applicant who has turned 18 years the applicant has, 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.

19. The applicant left school when she was 16 years old. At the time when she turned 18 years old she was employed in the retail industry. She did not commence any further studies until 27 September 2010, almost 2 years after she had turned 18. She ceased her studies on 23 May 2014 to be able to look after her grandfather. She is not currently enrolled in any course of study. When considering the time that the applicant has not been studying since turning 18 years, it would appear that, with particular regard to the period of the two years after she turned 18, the applicant would not meet this criterion for the grant of the visa. As the tribunal has concluded that the applicant does not meet the criteria in cl.802.212 it is not necessary to make a formal decision on this aspect of the application.

20. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There is no information before the tribunal that the applicant meets the criteria for any other visa subclass.

    DECISION

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

    Hugh Sanderson
    Member