1904681 (Migration)

1904681 (Migration) [2021] AATA 4920 (8 October 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904681
MEMBER:Andrew McLean Williams
DATE OF DECISION:  8 October 2021
DATE CORRIGENDUM
SIGNED:30 November 2021
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

The words “have however been since been thwarted” in the third line of paragraph 22 are replaced with “have however since been thwarted”.

Andrew McLean Williams
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1904681
MEMBER:Andrew McLean Williams
DATE:8 October 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa, yet recommends there be Ministerial intervention.

Statement made on 08 October 2021 at 2:44pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant did not become dependent since last applying for substantive visa and has not been undertaking education since turning 18 – born in home country to Australian citizen father and permanent resident mother – unable to travel to Australia with family and fostered in home country – arrived in Australia as a teenager and child visa application made – family friend promised to sponsor applicant and submit Child visa application – application not made until after applicant turned 18 – sponsor encouraged applicant to discontinue education and pursue career in sport – victim of deliberately misleading and predatory behaviour – Ministerial intervention recommended – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, Schedule 2, cls 802.211(b), 802.214(1)(c), (2)
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 on 8 February 2019 by a Delegate of the Minister for Home Affairs, thereby refusing to grant the applicant a Child (Residence) (Class BT) visa, under s.65 of the Migration Act 1958 (‘the Act’).
The Applicant is citizen of the Kingdom of Tonga by birth yet in circumstances wherein his mother was already an Australian permanent resident prior to the birth of the Applicant and his father was and remains an Australian citizen. There are six other biological siblings who are also in Australia.
Originally, the Applicant arrived in Australia [in] December 2013 as a [Age 1]-year old child. At the point of initial entry to Australia the Applicant was the holder of a Tourist (Subclass FA-600) visa. Subsequently, on 21 January 2014, a Child (subclass 802) visa was lodged on the Applicant’s behalf, yet this was refused, on 7 April 2015 (‘the refusal decision’). The Applicant has never left Australia since his initial entry.
At the time of the refusal decision the Applicant was still aged only [Age 2] and was not managing his own affairs. An application for review of the refusal decision was never lodged before the Administrative Appeals Tribunal. The Applicant says that in 2014 an ‘uncle’ (family friend) had promised his parents that he would assume responsibility for obtaining the Applicant a permanent residence visa. In these circumstances the Applicant was not even aware that an application for review of the refusal decision had not been lodged in the Tribunal.
The Applicant turned 18 on [Date 1]. On 9 January 2018 an application was lodged with the Department for the current Child (Residence) Class BT visa. As at the time of the current application, the Applicant was not the holder of either a Bridging visa, or an Australian temporary resident visa, and nor had he departed from Australia. In the result therefore the Applicant has remained in Australia with the status of an illegal alien, such that section 48 is applicable. Section 48 has the effect that illegal non-citizens who remain in the migration zone may only apply for a visa in a class that is prescribed for the purposes of section 48, but not for a visa in any other class.
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 by the Applicant 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’). The criteria to be met in this case include cl.802.211 and cl. 802.214.
Clause 802.211 provides:
802.211 (Criteria to be satisfied at the time of application)
If the applicant is a person to whom section 48 of the Act applies, the applicant:
(a)Has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(b)Since last applying for a substantive visa, has become a dependant child of:
(i)An Australian citizen; or
(ii)The holder of a permanent visa; or
(iii)An eligible New Zealand citizen
Clause 802.214 provides:
802.214 (requirement to be met at time of application)
(1)     If the applicant has turned 18:
(a)       the applicant:
(i)        is not engaged to be married; and
(ii)       does not have a spouse or de facto partner; and
(iii)      has never had a spouse or de facto partner; and
(b)     the applicant is not engaged in full-time work; and
(c)subject to subclause (2), the applicant has, since turning 18, or within six 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.
(2)Paragraph 1(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
Clause 802.211 makes use of the expression “dependent child”. The meaning of that expression is to be found in regulation 1.03, which provides that a dependent child is the child or step-child of a person, who has not turned 18, and who is dependent on that other person. “Dependent” is then defined in regulation 1.05A and essentially requires that the child be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter to a greater extent than their reliance on any other means of financial support.
On 8 February 2019 the Delegate refused to grant the visa on the basis that cl.802.211(b) and cl.802.214(1)(c) were not met, because the Applicant had not newly become dependent on his mother since last applying for a substantive visa (cl.802.211(b)); and had not since turning 18 commenced a course of study leading to the award of a professional, trade or vocational qualification (cl. 802.214(1)(c)). It is this decision that the Applicant now seeks to have reviewed before the Tribunal.
The Applicant appeared before the Tribunal on 14 September 2021 to give evidence and make submissions, accompanied by his authorised recipient, [named], who is a personal friend of the Applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, yet the matter should nonetheless now be considered for Ministerial intervention.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the Applicant can satisfy the requirements for a Child visa (Subclass 802) and in particular the requirements specified in each of clauses 802.211, and 802.214.
[The applicant] was born in Tonga on [Date 2]. At that time his heavily pregnant Australian permanent resident mother, [Ms A], and Australian citizen father, [Mr B], and six siblings had all travelled to Tonga in order to visit relatives. The plan had been to return to Australia prior to the birth of [the applicant]. However, on [Date 2], [Ms A] fell [very heavily] and unexpectedly went into labour. [The applicant] was delivered in an emergency delivery and thereafter his mother underwent emergency surgery due to significant blood loss.
The [family] were compelled by their fixed circumstances into needing to return to Australia on the scheduled return date, even notwithstanding the unexpectedly early delivery of their youngest child [the applicant]. In these circumstances it was not possible to arrange travel documents for [the applicant] prior to their departure, and the new baby was handed into the custody of the [C] family, who had been guardians of [Ms A] during her own childhood, in Tonga. The head of the [C] family, [Mr C], was at the time also [an office holder] of [a Church in] Tonga. The Tribunal was informed, and now accepts that kinship care arrangements of this kind are not unusual in Tonga.
[The applicant] first travelled to Australia in 2013 as part of a [school] tour. It was at this stage that he met his biological brothers and sisters for the first time and met his parents, in Australia. Later in that same year [Mr C] resolved that it was in the best interests of [the applicant] for him to move to Australia in order to live with his biological family, in Sydney.
[The applicant] arrived in Australia [in] December 2013. An application for a Child (Subclass 802) visa was then lodged by his mother [Ms A], on 21 January 2014.
Shortly after the lodgement of that visa application [Ms A] and [Mr B] were approached by [Mr D], the son of [Mr C]. [Mr D] lived with his wife [Ms E] and several young children in [City 1], NSW. At that time [Ms E] was terminally ill, and [Mr D] requested that the [parents] allow for [the applicant] to come and live with the [D] family in [City 1], in order for [the applicant] to assist [Mr D] to take care of the [D] children, in circumstances wherein [Ms E] was far too ill to do that. [Mr D] also promised to assume all responsibility for the paperwork relating to [the applicant]’s visa.
In these circumstances [Ms A] and [Mr B] agreed, and [the applicant] went to live with the [D] family in [City 1]. Over time, a great deal of money was also demanded by [Mr D] from [Ms A] and [Mr B] ostensibly to be used by [Mr D] in relation to the application process for [the applicant]’s residency visa.
[Ms E] passed away from her illness in 2015, yet [Mr D] still kept [the applicant] in [City 1] to act as a live-in carer for the [D] children. All the while [Mr D] continued to assure both [the applicant] and his parents that [the applicant]’s residency paperwork was, by this stage, “with the Tribunal”. In fact, this was not the case, and the visa application was not even lodged with the department until as late as 9 January 2018, by which point [the applicant] had already turned 18.
[The applicant] was also encouraged by [Mr D] to wholly discontinue his education after grade 10, in order to pursue a career in professional [sport], instead. Opportunities to do that have however been since been thwarted by the Applicant sustaining significant injuries that now require surgery, which cannot be obtained in consequence of [the applicant]’s uncertain visa status.
Only more recently has the Applicant assumed responsibility for managing his own visa application, and now in particular seeking a review before the Tribunal of the refusal decision made on 8 February 2019.
The Applicant is unable to provide evidence to show that he has become the dependent child of the person identified as his sponsoring Australian citizen or permanent resident. In these circumstances the Tribunal is unable to be satisfied that the Applicant meets the requirements of cl. 802.211(b).
The Applicant is now [Age 3] years of age and is not now and has not previously been in any form of education or training since his originally leaving high school a number of years ago under [Mr D]’s encouragement, in year 10. In these circumstances the Applicant is unable to meet the requirements of clause 802.214(1)(c) in Schedule 2 of the Regulations, and he is also unable to avoid the application of that provision by means of cl.802.214(2).
Accordingly, cl.802.211(b) and cl. 802.214(1)(c) was not met at the time of the visa application, and continue to be unmet at the time of this decision.
For the reasons given 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). However, the circumstances of this case do give rise to concerns that the Applicant has been unfairly denied the opportunity to obtain a Subclass 802 visa in consequence of deliberately misleading and predatory behaviour occasioned on him by a third party. In these circumstances the Tribunal recommends that the matter be subject to further discretionary consideration by the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa, yet recommends there be Ministerial intervention.
Andrew McLean Williams
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 or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.
…

[2021] AATA 4920

8 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction