1620221 (Migration) - [2018] AATA 1191

1620221 (Migration) [2018] AATA 1191 (12 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1620221
MEMBER:K. Chapman
DATE:12 April 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Statement made on 12 April 2018 at 6:41pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Applicant over 18 – Lives with mother overseas – Whether the applicant is a dependent child – Financially reliance on the Sponsor – Sponsor paid child support payments –Sponsor funded trips to Australia and living expenses in Australia– Not in full time study at the time of application –Religious studies unable to be considered – Applicant open to seek ministerial direction

LEGISLATION
Migration Act 1958 ss 65, 359, 359A
Migration Regulations 1994 rr 1.03, 1.05A Schedule 2 802.212, 802.214, 802.216, 802.226A

CASES
Fusi v MIAC [2012] FMCA 1037
Huynh v MIMA [2006] FCAFC 122
MIMIA [2005] FMCA 190
Sok v MIMIA [2005] FMCA 190
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 28 November 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 [date]July 2016. He was [years] of age at the time of application and is now [age] years. The visa application was sponsored by his father, Mr R (‘the sponsor’), who was an Australian permanent resident at that time and is now an Australian citizen. 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 include cl.802.212 and cl.802.214.
The delegate refused to grant the visa on the basis that cl.802.212 and cl.802.214 were not satisfied by the applicant because he was assessed not to be a dependent child of his father or a full time student at the time of the visa application.
On 29 November 2016, the applicant applied to the Tribunal for review of his visa refusal decision. On 4 January 2018, the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to respond to information contained in the delegate’s decision, and to provide further information concerning whether he is currently a dependent child of the…

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 1620221 (Migration)

Details

AGLC: 1620221 (Migration) [2018] AATA 1191
Case: [2018] AATA 1191
Decision Date: 12 April 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, subclass 802. The applicant, who was over 18 years of age at the time of application, lived overseas with their mother and was not engaged in full-time study. The core dispute revolved around whether the applicant met the criteria for being a "dependent child" of the sponsor, specifically concerning financial reliance.

The Tribunal was required to determine two primary issues: first, whether the applicant was a "dependent child" of the sponsor at the time of the visa application, and second, whether the applicant satisfied the full-time study requirements. The definition of "dependent child" under the Migration Regulations 1994 was central to the assessment, requiring the applicant to be under 25 years of age or incapacitated for work, and if 18 or older, to be financially reliant on the sponsor for basic needs to a greater extent than any other person or source of support.

In its reasoning, the Tribunal noted that while the sponsor had provided financial assistance, including child support payments and funding for trips and living expenses in Australia, this did not establish the required level of "substantial" and "predominant" reliance for basic needs. The Tribunal referred to established case law, such as *Huynh v MIMA* and *Huang v MIMA*, which clarified that "dependent" does not imply necessity but rather a factual assessment of reliance. The Tribunal found that the applicant's reliance on the sponsor was not greater than reliance on other sources of support, and that religious studies did not qualify as full-time study for the purposes of the visa criteria.

Ultimately, the Tribunal affirmed the decision not to grant the visa. The Tribunal noted that the applicant might consider seeking Ministerial Intervention in their case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicant was, at the time of application, the dependent child of the sponsor and also at that time whether he satisfied the full time study requirements (which are described in further detail below). 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. The Tribunal notes that the applicant is the biological son of the sponsor, he was [years] of age at the time of the visa application, there is no evidence of him being incapacitated for work in any respect, and there is no evidence he has ever been engaged or in a spousal or de facto relationship. As is relevant to the present case, the applicant must have been at the time of the visa application, and have been for a substantial period of time prior to lodgement of the visa application, wholly or substantially reliant upon the sponsor for financial support to meet his basic needs for food, clothing and shelter. He must also have relied to a greater extent upon the sponsor than any other person for the aforementioned financial support. There is no definition in the Regulations of what constitutes a ‘substantial period’ of time, but Departmental guidelines (PAM3) interpret a ‘substantial period’ is usually taken to be at least 12 months.[1] However, while the Tribunal has had regard to Departmental policy, it is not binding upon it, and accordingly the Tribunal has considered the individual circumstances of the case.[1] PAM3: Act-defined terms - s5G – Relationships and family members – Dependent family members – paragraph 42.2 (compilation 1/7/2016). In respect of the term ‘dependent’, the judgement in Huynh v MIMA [2006] FCAFC 122 establishes that the words of the Regulations do not carry any implication of necessity, and the question in considering the terms of r.1.05A(1) is whether as a matter of fact the first person (the applicant) is wholly or substantially reliant on the other person (the sponsor) for financial support to meet the basic needs specified in the definition. Both the expression ‘substantially reliant’, and r.1.05A(1)(a)(ii) require consideration of the level of reliance a person has on another person in comparison with his or her reliance on other persons or sources of support. Courts have held that the term ‘substantially’ should be read as meaning ‘predominantly’ or ‘primarily, essentially or in the main’.[2] In addition to being ‘substantially reliant’ on an identified person, r.1.05A(1)(a)(ii) requires that the first person’s reliance on the other person be greater than any reliance on any other person or source of support.[2] Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [26]. See also Fusi v MIAC [2012] FMCA 1037 ( Nicholls FM, 15 November 2012).

Decision

Reasons for decision

The Tribunal notes that it is open to the applicant to seek Ministerial Intervention in his case and he may wish to consider doing so. DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.K. ChapmanMemberATTACHMENT – 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

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