1600724 (Migration) - [2016] AATA 4683

1600724 (Migration) [2016] AATA 4683 (21 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Charmaine Gonzales
CASE NUMBER:  1600724
DIBP REFERENCE(S):  CLF2015/67643
MEMBER:Wendy Banfield
DATE:21 November 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.212 of Schedule 2 to the Regulations; and
·cl.802.214 of Schedule 2 to the Regulations.

Statement made on 21 November 2016 at 10:36pm

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 6 January 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration for the visa on 2 November 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). 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 includes cl.802.212 and 802.214.
The delegate refused to grant the visa on the basis that cl. 802.212 and cl.802.214(2)(c) were not met. It was found the applicant had not demonstrated that she was a dependent child of her mother for a substantial period prior to the date of application or that she has been continuously in full-time study since she turned 18.
The applicant appeared before the Tribunal on 17 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Rosario Gonzales and step-father Mr Keith Barrett.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the criteria for full-time study since turning 18 in accordance with cl.802.214 and whether she meets the dependent child criteria pursuant to cl.802.212.
Dependent child criteria
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).
Dependent child
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).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1600724 (Migration)

Details

AGLC: 1600724 (Migration) [2016] AATA 4683
Case: [2016] AATA 4683
Decision Date: 21 November 2016

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, specifically a Subclass 802 visa. The applicant, Ms. Gonzales, sought to satisfy the criteria for full-time study since turning 18 under cl.802.214 and the dependent child criteria under cl.802.212 of the Migration Regulations 1994. The decision-maker was Wendy Banfield, a Member of the Tribunal.

The core legal issues before the Tribunal were whether Ms. Gonzales qualified as a "dependent child" of an eligible person at the time of her application and decision, and whether she met the full-time study requirements. Specifically, the Tribunal had to determine if Ms. Gonzales, who was over 18, was financially reliant on her mother for her basic needs, and if this reliance was greater than any other source of support, as required by cl.802.212 and r.1.05A. The Tribunal also needed to assess if she was undertaking full-time study.

The Tribunal reasoned that for a person over 18 to be considered a "dependent child," they must be reliant on a parent for financial support for basic needs, and this reliance must be greater than any other source of support. The Tribunal noted that actual necessity for support was not required, but rather the factual reliance on the parent. Applying this to Ms. Gonzales, the Tribunal found that she was indeed dependent on her mother, an Australian citizen, for accommodation, utilities, and food, despite contributing to her own tuition fees and travel costs from a part-time job. The Tribunal was satisfied that her reliance on her mother for these substantial basic needs was greater than her reliance on her own income. The Tribunal also found that Ms. Gonzales was enrolled full-time in hospitality management at TAFE NSW.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria for cl.802.212 and cl.802.214 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant satisfies the criteria for full-time study since turning 18 in accordance with cl.802.214 and whether she meets the dependent child criteria pursuant to cl.802.212.Dependent child criteria 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).Dependent child 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). ‘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. 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]. Regarding the dependency of students, the Tribunal notes Ms Gonzales’ submission in relation to Departmental policy which states postgraduate students, or students who have resumed study after a period of independence (such as her) should be carefully assessed against the provisions of r.1.05A. On the basis of the evidence provided, at the relevant time, which in this case is the time of application, Ms Gonzales was dependent on an eligible person, her mother. A copy of Mrs Rosario Gonzales’ Australian Citizenship Certificate was provided in evidence. Ms Gonzales gave evidence that she was reliant upon her mother for financial support to meet her basic needs for food, clothing and shelter as she is a full-time student. The Tribunal must also be satisfied that Ms Gonzales’ reliance on her mother was greater than her reliance on any other person, or source of support, for financial support. Although Ms Gonzales has a part-time job, bank statements of Mrs Rosario Gonzales and Mr Keith Barrett were submitted that demonstrate they have been providing her with substantial support for her basic needs. Evidence also available to the Tribunal shows that Ms Gonzales pays her own tuition fees from her fortnightly part-time salary as well as her travel costs to study and work. Mrs Rosario Gonzales and Mr Barrett are responsible for her accommodation costs, utilities and food. Ms Gonzales’ mother and step-father gave evidence at the hearing confirming their ongoing financial support as evidenced. Ms Gonzales is currently enrolled full-time at TAFE NSW studying hospitality management and living at home with her parents.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider any remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl.802.212 of Schedule 2 to the Regulations; and·cl.802.214 of Schedule 2 to the Regulations.Wendy BanfieldMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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.…step-child, in relation to a parent, means:(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or(b)a person who is not the child of the parent but:(i) who is the child of the parent’s 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's 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.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. …

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.