1610073 (Migration)

[2016] AATA 4468

1610073 (Migration) [2016] AATA 4468 (14 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hong Phuc Nguyen

CASE NUMBER:  1610073

DIBP REFERENCE(S):  CLF2016/23797

MEMBER:Chantal Bostock

DATE:14 September 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 14 September 2016 at 9:13am

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 14 June 2016 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 22 March 2016. 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).

3. 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.

4. By way of background, the review applicant is a 12-year-old Vietnamese citizen. Her mother married an Australian citizen of Vietnamese background, who sponsored her for a subclass 820/801 (partner) visa application. The applicant and her sibling arrived in Australia later on a tourist visa and lodged the subclass 802 (child) visa application onshore, sponsored by her step-father. 

5. The applicant appeared before the Tribunal on 26 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s mother and step-father. Given the age of the review applicant, while she gave some evidence about her age, living arrangements and school (see below), the Tribunal permitted the applicant’s parents to remain throughout the hearing and to speak on her behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Pre-hearing Submissions

1. Prior to the hearing, the applicant’s newly appointed representative submitted as follows:

   The delegate refused a Child Visa because under clause 802.112(1A), the Applicant is

   not a step child according to the Definition of Step Child under Reg.1.03 – Step Child

   (b).

   Ms. Nguyen arrived in Australia with a Visitor visa on 07 February 2016. She was born on 16 February 2004. She turned 12 when she arrived in Australia on February 2016.

   She is a dependent child of her mother, Mrs. Vu Thi Tho.

   Prior to the Applicant's arrival in Australia in February 2016, her mother Mrs. Vu lodged an application for a Partner visa on 21 April 20115 DIBP reference No: BCC2015/117 4962.

   Because the Applicant is a dependent child of her mother, she could apply to add her name to her mother (sic) application for a Partner Visa under Reg 2.08B.

   Unfortunately, the Applicant's Migration Agent did not apply for addition under Reg 2.08B, instead the Agent lodged an application for a Child Visa onshore - Subclass 802 on the ground that Ms. Nguyen is a step child of the Sponsor.

   However, under clause 802.112(1A), Ms. Nguyen is not a step-child under Reg.1.03 - Definition of Step Child (b).

   We are instructed to lodge an appeal to the Tribunal.

   In the event that the Tribunal takes the view that the Applicant is not a step child under clause 802.112(1A), and affirms the decision by the Department, we are instructed to apply for Minister's Intervention.

   We will ask the Minister because of the mistake by the Agent, the Minister allows the applicant, 12 years to apply to add her name to her mother's application for Partner Visa.

   The Hearing

2. The review applicant gave evidence at the hearing. She currently lives with her stepfather, mother and her two older sisters. She is in grade 6 at school. She has received two excellence awards at school. A recent school report was submitted to the Tribunal, indicating that she is doing very well.

3. The review applicant’s stepfather gave evidence. He became an Australian citizen in 1980. He married the review applicant’s mother about 2 years ago and sponsored her for a subclass 820/801 visa. They are still in a relationship. He was concerned for the children’s wellbeing, particularly as their biological father now lives in the United States.

4. The review applicant’s mother gave evidence. She first came to Australia with her children in July 2014 for a holiday. She visited her now husband, whom she knew in Vietnam. She subsequently visited Australia on a number of occasions to visit her husband and her eldest daughter, who is undertaking a finance degree at UTS. She and her husband married in February 2015. Her two daughters travelled to Australia in 2016 after completing their studies.

5. The Tribunal discussed with the applicant’s mother and step-father the definition of step-child set out in paragraph (b) of regulation 1.03 (set out below). The applicant’s mother explained that she was represented by another solicitor who lodged a Partner visa application on her behalf. The application was refused because there was insufficient evidence. However, she had given all the documents and evidence to her solicitor but he did not submit the information to the Department. He informed her of the expiry of her visa the night before it was due to expire. That solicitor advised her that her daughters could not be listed as dependents on her subclass 820 visa application as her husband had no legal right to sponsor them as they were not his biological children.[1] He charged her $17000 in order to lodge the subclass 820 visa application and an additional $9000 with respect to the children’s visa applications. She then went to see her new solicitor, who lodged the review application. She confirmed that she remained in a relationship with her husband.  

   [1] The review applicant’s sister also lodged a child visa application, which is presently before the Tribunal.

Sponsorship

1. As the visa application is not supported by a letter of support from a State or Territory government welfare authority, the applicant does not meet cl.802.215(a) and must meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person, mentioned in paragraph 802.212(1)(a), which provides as follows:

802.212

(1)      The applicant:

(a)      is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

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

(1A)      If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

(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. Paragraph (b) of the definition of step-child, which is defined in regulation 1.03 of the Migration Regulations, provides as follows:

   Step-childin relation to a parent, means: …

   (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 …

2. Subparagraph (b)(ii) of the definition of dependent child, as defined in regulation 1.03 of the Migration Regulations, provides as follows:

   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: …

   (b)  has turned 18 and: …

   (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

3. The Tribunal finds at the outset that the review applicant and the witnesses were credible. Based on the material before it, including the oral evidence, the Tribunal makes the findings that follow.

4. The applicant’s mother divorced her father in September 2014, as evidenced by their divorce agreement, which is contained on the Department’s file. Her mother married her step-father on 14 February 2015, also evidenced by the marriage certificate contained on the Department’s file. Based on the material before it, the Tribunal finds that the applicant does not meet paragraph (b) of the definition of step-child because her mother and her step-father are married and according to their evidence, continue to be in a relationship. Furthermore, the applicant has not turned 18. She does not meet subparagraph (b)(ii) of the definition of dependent child. Clause 802.212(2) therefore does not apply. Accordingly, the requirements in cl.802.215(b) are not met.

5. 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

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

Chantal Bostock
Member