1911988 (Migration) - [2022] AATA 2345

1911988 (Migration) [2022] AATA 2345 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John William Galloway (MARN: 9254439)
CASE NUMBER:  1911988
MEMBER:Margie Bourke
DATE:11 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 11 May 2022 at 10:29am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – applicant over 18 – criteria relating to study not met – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
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 Home Affairs on 9 April 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 14 November 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.211 which requires the visa applicant is a dependent child of either an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and has not turned 25 at the time of application, or meets the definition of dependent child in r.1.03(b)(ii). They also include cl.101.213 which has additional requirements for applicants that have turned 18 at the time of application which relate to the marital status, employment and study of the visa applicant at the time of application. These criteria are required to continue to be satisfied at the time of decision pursuant to cl.101.221.
The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant met the definition of dependent child for the purposes of cl.101.211.
The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, and the visa applicant who would attend via telephone or video connection from overseas, and to the nature of the review, being a dependent child visa. The Tribunal accepted the hearing would not involve a large amount of documents to…

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 1911988 (Migration)

Details

AGLC: 1911988 (Migration) [2022] AATA 2345
Case: [2022] AATA 2345
Decision Date: 11 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the applicant was over 18 years of age. The primary dispute revolved around whether the applicant met the criteria for a "dependent child" at the time of application and decision. The Department had previously decided not to grant the visa, finding that the applicant did not meet this criterion, and the applicant sought review of that decision before the Tribunal.

The Tribunal was required to determine whether the visa applicant met the requirements of clause 101.211 of the Migration Regulations 1994, specifically the definition of a "dependent child." This involved considering whether the applicant, being over 18, was financially reliant on the sponsor for basic needs, or incapacitated for work. The Tribunal also considered other time-of-application criteria that an applicant over 18 must meet, and whether it would be appropriate to remit the matter to the Department if the applicant met only some, but not all, of the relevant criteria.

The Tribunal applied the definitions of "dependent child" and "dependent" as set out in regulations 1.03 and 1.05A of the Migration Regulations 1994. These regulations require a child over 18 to be wholly or substantially reliant on the sponsor for financial support for basic needs, with that reliance being greater than any other source of support, or to be incapacitated for work. Despite granting extensions for the applicant to provide further evidence, including records of money transmissions, the Tribunal concluded that the evidence did not establish that the applicant met the dependent child criteria. Furthermore, the Tribunal noted that the applicant did not meet other time-of-application criteria for applicants over 18.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, Subclass 101, as the criteria for the grant of the visa were not met. No claims were advanced in respect of other visa subclasses within Class AH.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The first issue to be determined in this case, is whether the visa applicant meets the requirements for dependent child. This was the criterion the delegate identified in the Department’s decision record dated 9 April 2019 as the criterion not met by the applicant at the time of application. It is noted that the delegate did not assess whether the applicant met any of the remaining criteria. At the conclusion of the hearing the Tribunal granted the request of the representative to allow 14 days to provide further submissions. At the request of the review applicant, the Tribunal granted a further 14 day extension of time for the review applicant to provide the information or documents. The review applicant requested a second extension until 9 or 10 May 2022, and the Tribunal granted this extension until 9 May 2022, the day before the second scheduled hearing. The review applicant had indicated he may have evidence of further money transmissions to the visa applicant which would be relevant to the considerations in this review, and the Tribunal indicated these would be of assistance to its consideration of whether the visa applicant met the requirements of cl.101.211. The review applicant provided evidence of further money transmissions including further receipts and records of transactions to the Tribunal by 9 May 2022. At the conclusion of the first hearing, the Tribunal indicated it had not made up its mind in relation to whether the visa applicant met the requirements of cl.101.211, and needed to consider the evidence, and wait for the further information or evidence to be provided. During the first hearing, the Tribunal raised with the representative in the hearing that there are other time of application criteria that applicants over the age of 18 were required to meet. The Tribunal discussed if the evidence indicated the visa applicant did not meet this other criteria, it was inappropriate for the Tribunal to remit the matter back to the Department on the grounds the visa applicant met one subclause, knowing he did not meet another subclause. The representative requested time to make submissions as to whether the visa applicant met the other time of application criteria. The submissions were received by the Tribunal from the representative on 9 May 2022Dependent child criteria The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).Dependent child At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 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.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Margie BourkeMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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.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.