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

1. 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’).

2. 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).  

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 and cl.802.214.

4. 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.  

5. 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 sponsor and a full time student.

6. On 17 January 2018, the Tribunal received material from the applicant responding to the invitation including submissions, identity documentation, Form 80, medical insurance details, financial documentation, and a list of courses. On 17 February 2018, the Tribunal received a statement from the sponsor and emails regarding the sponsor’s own visa application. The aforementioned material has been duly considered by the Tribunal.

7. The applicant appeared before the Tribunal on 23 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and Mrs A, the step-mother of the applicant. The applicant was represented in relation to the review by his registered migration agent. The Tribunal afforded the applicant further time following the review hearing to submit evidence in support of his case. On 8 March 2018, the Tribunal received material including financial records, travel documents, email correspondence, consumer receipts, [Country 1] legal documentation, written submission from the sponsor, a photograph, insurance documentation, and third party Statutory Declarations. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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

11. 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.

12. 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).

13. 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).

14. The applicant gave oral evidence concerning him being a dependent child of the sponsor which may be summarised as follows. He was born in  [Country 1] to parents who divorced. His father, the sponsor, subsequently married Mrs A and moved to live in Australia with her. The applicant remained living with his biological mother in rental accommodation. She provided him with groceries and a ‘roof over his head’. His mother worked full time. She provided him with health insurance which is a necessary item in  [Country 1]. They moved residence two to three times in  [Country 1] whilst he lived with his mother. He studied and worked but did not earn enough to live independently. The applicant visited Australia periodically to visit the sponsor, who funded these visits. The applicant advised that the sponsor ‘funded everything’ as he was growing up through significant child support payments, provision of incidental funds, and payment of tuition fees. The applicant maintained that he was substantially reliant upon his father for financial support for a substantial period of time.

15. During the review hearing the Tribunal raised with the applicant that his evidence regarding his mother providing him with accommodation and food might tend to suggest he was not substantially reliant upon the sponsor for financial support to meet his basic needs for food clothing and shelter, and that his reliance upon the sponsor was not greater than on any other person or source of support to meet these needs, inviting his comment. The applicant disagreed and advised that his father ‘facilitated everything’ and paid over AUD [amount]in child support whilst he resided in [Country 1], therefore he was dependent upon him. The applicant maintained that since moving to Australia to live with the sponsor (on [date] June 2016), he did not work and the sponsor financially supported him in all ways (including for food, clothing and shelter). The applicant applied for the Child visa in Australia on [date] July 2016.

16. The Tribunal raised with the applicant that at question 42 in his visa application he listed his biological mother as his main source of financial support for food, clothing and housing, whilst noting his father provided other sources of financial support, inviting him to provide further information. The applicant advised he had nothing to add. The Tribunal raised with the applicant that his answer to question 42 might tend to suggest that he was not substantially reliant upon the sponsor for financial support to meet his basic needs for food, clothing and shelter and that his reliance upon his father was not greater than on any other person or source to meet these needs, inviting his comment. The applicant disagreed and indicated his father provided AUD $[amount]in support to him over the years and this makes him predominately reliant upon him. 

17. The Tribunal took oral evidence from Mrs A concerning the applicant being a dependent child of the sponsor which may be summarised as follows. She advised the applicant came into her life when he was around [years] of age. She sponsored both the sponsor and the applicant for Partner visas to come to Australia with her. The applicant’s biological mother did not consent to her son being included in the application. A Court Order was required for the applicant to be allowed to visit Australia and ultimately he could not be included in the Partner visa application due to the obstruction of his biological mother. When the applicant was in his teens he wished to visit Australia. Mrs A and the sponsor facilitated such travel by providing funding for travel and financially supporting the applicant whilst in Australia. The applicant was a student in adulthood, with Mrs A indicating ‘after 18 years he has always been a student’. Between the applicant’s biological mother, the sponsor and Mrs A, financial contributions were made with respect to the applicant’s food, clothing and accommodation. Further, the sponsor made financial contributions towards the applicant’s study.

18. The Tribunal took oral evidence from the sponsor concerning the applicant being his dependent child. It may be summarised as follows. The sponsor tried for many years to have the applicant migrate with him to Australia but these efforts were blocked due to the applicant’s biological mother, who was a member of[a religious group]. The sponsor himself was previously a member of that religion as was the applicant. An acrimonious legal battle ensued between the sponsor and the applicant’s biological mother regarding custody of the applicant. Eventually, a Court Order was obtained in [Country 1] enabling the applicant to visit the sponsor in Australia as a minor. The sponsor confirmed that the applicant primarily resided with his mother in [Country 1] until he moved to Australia (on [date] June 2016). The applicant’s living expenses in the [Country 1] were shared between him, Mrs A and the biological mother of the applicant. The sponsor wanted the applicant to study in  [Country 1], whilst his biological mother wanted him to be a full time [religious representative]. The sponsor outlined that the applicant pursued various studies in [Country 1] which he funded. The sponsor advised that he has solely funded the applicant’s expenses since he moved to Australia and resided with him and Mrs A.

19. The oral evidence provided during the review hearing was supported by numerous financial records indicating that the sponsor had paid a significant amount in child support payments regarding the applicant, had funded his studies in  [Country 1], paid for his travel to and from Australia and provided incidental funds to the applicant. Having regard to the evidence concerning the financial support provided by the sponsor to the applicant, the Tribunal is of the view that it has been significant and maintained for many years. The Tribunal has also paid due regard to the fact that the applicant was unable to reside in Australia with his father for many years due to a custody dispute between his parents.

20. However, it is apparent from the documentary and oral evidence that financial support to meet the applicant’s basic needs for food, clothing and shelter in [Country 1] was shared between his biological mother, the sponsor and Mrs A. Whilst the Tribunal accepts extensive financial support was provided by the sponsor (and Mrs A) to the applicant when he resided in [Country 1], it does not accept that during this period the applicant was wholly or substantially reliant upon him for financial support to meet his basic needs for food, clothing and shelter. It is worth pausing to reflect that at question 42 in his visa application, the applicant declared his biological mother to be his main source of financial support for food, clothing and housing. Given the applicant’s biological mother was in full time work, rented the properties in which they resided and provided his groceries and other daily items, the Tribunal finds that he was substantially reliant upon her for financial support to meet his basic needs for food, clothing and shelter when he resided in [Country 1]. Further, the Tribunal finds that the applicant’s reliance for the aforementioned financial support was greater upon his biological mother than upon any other person, including the sponsor.

21. The Tribunal accepts that from [date]June 2016, when the applicant moved to Australia, until [date] July 2016 when he applied for the Child visa, he was wholly reliant upon the sponsor for financial support to meet his basic needs for food, clothing and shelter. However, this reliance was not for a substantial period prior to the visa application being lodged given it was a period of less than one month. Accordingly, the Tribunal finds that the applicant does not meet the requirements of r.1.05A(1)(a)(i) with respect to being dependent upon his father at the time of the visa application. It follows that he does not satisfy the definition of dependent child in r.1.03 with respect to the sponsor at that time. Therefore, cl.802.212(1)(a) is not met by the applicant at the time of application.

22. For the reasons above, the criteria in cl.802.212 and cl.802.221(2)(a) are not met by the applicant.  

    Additional criteria for applicants over 18

23. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

    Relationship status

24. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). There is no evidence before the Tribunal to suggest that the applicant has ever been engaged to be married or had a spouse or de facto partner. Accordingly, cl.802.214(1)(a) is met at the time of application, and continues to be met at the time of this decision.

    Not engaged in full-time work

25. At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b). The oral and documentary evidence before the Tribunal indicates that since the applicant moved to Australia on [date] June 2016 he has not engaged in full-time work. Accordingly, cl.802.214(1)(b) is met at the time of application, and continues to be met at the time of this decision.

    Full-time study (or incapacitated for work)

26. At the time of application, the applicant must have, 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: cl.802.214(1)(c). 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 loss of bodily or mental functions: cl.802.214(2). This requirement must continue to be met at the time of decision: cl.802.221(2)(b).

27. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

28. As previously noted, the applicant is not incapacitated for work in any respect. The applicant’s oral evidence regarding his study may be summarised as follows. In the [Country 1] he completed secondary schooling in June 2009 and in early 2010 studied [a trade] externally at [a]Vocational College whilst also working at the retail [chain]. The applicant did not complete the [course] and in 2010 undertook [a]management course at [a retail chain], which was an in house training program where he attended a training centre and also undertook limited paid work. In mid-2013 the applicant developed an interest in the medical field and studied one semester of [a university course]at[University 1]. In 2014 he then commenced in-house [technician] studies at [a]retail chain. He was paid a small amount during this training. The applicant stated to the Tribunal that he finished this course 3 to 4 months before moving to Australia (which occurred in 2016).

29. The applicant indicated that he had been a full time student since reaching adulthood. He advised that at the time he understood his situation with [the retail chain]to be a job, but when looking back it was full time education. However, when asked by the Tribunal what he was studying on [date] July 2016 when he applied for the Child visa, the applicant stated that he was not studying and has finished his studies. He added that he aspires to study para-medicine in Australia. The Tribunal notes that the applicant subsequently confirmed that he was not studying on [date] July 2016. The Tribunal raised with the applicant that his oral evidence might suggest he was not in full time study at the time of application, inviting his comment. He replied, ‘I would say it is relative.’

1. The Tribunal also asked about the applicant’s study with [his] religion. He maintained that this was intensive religious study. When asked by the Tribunal if his study with the religion was a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, the applicant replied that it was. The Tribunal invited the applicant to provide further evidence in this regard as the evidence before it did not tend to suggest this was the case. The applicant advised he would provide further evidence concerning this topic following the review hearing. He was provided further time to provide such evidence, but at the time of this decision none was received regarding his [religious]study.

2. Mrs A gave oral evidence indicating that since the age of 18 years the applicant had been a full time student. She advised of the [trade] course, [ management] training, university studies, and [retail group] [technician] training in similar terms to the applicant. Mrs A indicated her belief that the [technician] training with [retail chain] was continuing when the applicant moved to Australia, although she was not sure of the equivalent level at Australian TAFE of this course. She did not refer to any educational training with the [religion].

3. The sponsor gave oral evidence advising of the [trade]course, [management] training, university studies, and [technician] training in similar terms to the applicant. He explained that the applicant had previously been at a [Ministry] School which was full time and with his biological mother supporting such studies as a member of that religion. The sponsor outlined that from the age of [age] years the applicant was part of the Ministry School and to be a regular [representative] he needed to perform 90 hours per month of study. He added that the applicant was not in formal religious study in Australia and he advised that when he came to Australia in June 2016 he was not studying full time. The sponsor has hopes for the applicant to study a [different]course in Australia.  

4. The Tribunal notes that the applicant provided documents from [the retail chain]illustrating the in-house training he undertook there. The latest entries on the course list from [the retail chain]are for [date] May 2016 in respect of ‘[Sales] Training’ and ‘[Sales] Training: Annual Quiz’. This is suggestive of him completing his training with [the retail chain]prior to moving to Australia. The Tribunal places high weight upon the applicant’s oral evidence noting that he was not studying in Australia on [date] July 2016 when he applied for the Child visa. Given that this evidence is from the applicant himself, the Tribunal prefers that evidence over all other evidence presented in his case. For completeness, the Tribunal notes that it has not drawn any adverse inferences from the oral evidence of the sponsor or Mrs A.      

5. The Tribunal has carefully considered the evidence pertaining to the applicant’s contention that he was studying full time with the [religion] at the time of application. The Tribunal notes that such evidence was vague and limited in detail, both in oral and documentary form. Further, the applicant did not provide any additional evidence concerning this matter following the review hearing when provided the opportunity to do so. Following careful consideration, the Tribunal does not accept that the applicant’s participation in study of the [religion] can reasonably be considered to be a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. It is worth pausing to reflect that the applicant contends he has undertaken such full time study for many years in conjunction with other full time study such as in-house training with the  [retail] chain and whilst engaging in paid employment. In the view of the Tribunal, it would not be possible for the applicant to have participated in these simultaneous full time activities if they were in fact full time courses of study at an educational institution leading to the award of a professional, trade or vocational qualification. Given that the applicant specifically stated to the Tribunal during the review hearing that he was not studying full time on [date] July 2016 when the Child visa application was lodged, it does not accept he was in full-time study on that date. For completeness, the Tribunal does not accept he is in full-time study at the time of this decision. Accordingly, cl.802.214(1)(c) is not met at the time of application, and does not continue to be met at the time of decision.

6. For the reasons above, cl.802.214 is not met at the time of application. At the time of decision, cl.802.214 does not continue to be met. Accordingly, cl.802.221(2)(b) is not met. Accordingly, 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 (the Subclass 837).

7. The Tribunal notes that the evidence indicates the applicant would likely have migrated to Australia as a child if his biological mother had permitted this. Unfortunately, the applicant was caught in the middle of an acrimonious international custody battle as a minor. Now an adult, he wishes to live in Australia. This is understandable.

8. It is of note that the sponsor and Mrs A have a young Australian citizen child together, who is the half-brother of the applicant. It is apparent that a close family bond has formed between them all since the applicant commenced residence in Australia in June 2016. Further, Mrs A gave evidence that she suffers from serious health conditions and the applicant has been of great assistance to her, and the rest of the family, by providing support since he has been in Australia. The Tribunal accepts the aforementioned evidence.  

9. The Tribunal is sympathetic to the circumstances of the applicant and his family in Australia and is satisfied that they are upstanding persons who gave truthful evidence. However, the Tribunal’s duty is to apply the law in this matter in a dispassionate manner. It has accordingly done so.

10. 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

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

    K. Chapman
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    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.

    …

    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.

    …