1918501 (Migration)

[2020] AATA 5321

1918501 (Migration) [2020] AATA 5321 (9 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1918501

MEMBER:Margie Bourke

DATE:9 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.211 of Schedule 2 to the Regulations.

Statement made on 09 October 2020 at 4:38pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – holder of a substantive visa – becoming the dependent child of an Australian relative – financially dependent on the sponsor – sponsor became an Australian citizen – citizenship or visa status of the sponsor – last application for a substantive visa – decision under review remitted           

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 360, 501
Migration Regulations 1994 (Cth), rr 1.03, 1.05; Schedule 2, cl 802.211

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 Home Affairs on 20 June 2019 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 for the visa on 12 April 2019. 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.802.211.

4. The delegate refused to grant the visa because the delegate found that the applicant did not meet the requirements of cl.802.211(b).  The applicant does not hold a substantive visa and the applicant had applied for, and been refused an application for a visa, and therefore s.48 of the Act applied to the applicant.  For this reason the applicant had to meet the requirements of cl.802.211(b), which requires that since last applying for a substantive visa the applicant has become the dependent child of (i) an Australian citizen; or (ii) the holder of a permanent visa; or (iii) an eligible New Zealand citizen. The delegate found that the applicant had been the dependent child of the sponsor before and after applying the for the last substantive visa, and therefore did not meet the requirements of cl.802.211(b).

5. I have considered the matters in the Department’s decision record dated 20 June 2019, and the submission from the applicant’s representative to the tribunal dated 10 September 2019, and the information on both the Department and tribunal files.  I have reached a different conclusion to the delegate in the Department’s decision record.  I am satisfied that I can make a decision favourable to the applicant on the information available to me without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.  

6. The following are the written reasons that the tribunal has concluded that the matter should be remitted to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. As stated above, the applicant is a person to whom s.48 of the Act applies, and who must meet the requirements of cl.802.211. Cl.802.211 states that at the time of application if the applicant is a person to whom s.48 of the Act applies, the applicant (a) has not been refused a visa or had a visa cancelled under s.501 of the Act; and (b) since last applying for a substantive visa, has become a dependent child of (i) an Australian citizen; or (ii) the holder of a permanent visa; or (iii) an eligible New Zealand citizen.

8. There is no evidence that the applicant has been refused a visa, or had a visa cancelled under s.501 of the Act, and the applicant meets the requirements. of cl.802.211(a).

9. The following are the essential facts pertinent to this review. Based on certificate of birth entry records and the DNA report, I am satisfied that the applicant is the biological son of the sponsor, [Ms A], and he was born in [specified year]. I accept the submissions of the applicant and finding of the delegate that the applicant is financially dependent upon his mother, the sponsor. I am satisfied the applicant is the dependent child of the sponsor.

10. The applicant arrived in Australia as the holder of a visitor visa [in] December 2016. The applicant made an application for a protection visa on 31 January 2017, and this application was refused by the Department on 12 February 2019.  [Ms A] was granted Australian citizenship [in] May 2018. The sponsor has become an Australian citizen since the applicant last applied for a substantive visa.

11. The delegate concluded that the applicant was the dependent child of his parent, [Ms A], and this had not changed since he last applied for a substantive visa, and therefore the applicant did not meet the requirements of cl.802.211(b).

12. Cl.802.211(b) requires that since last applying for a substantive visa, the applicant has become a dependent child of (i) an Australian citizen; or (ii) the holder of a permanent visa; or (iii) an eligible New Zealand citizen. It is relevant that the legislation requires the applicant be the dependent child of (i) or (ii) or (iii), and not (i) and (ii) and (iii), and not (i),(ii) or (iii). I accept the submission that the use of the word “or” twice removes ambiguity from the interpretation and intention of the legislation. The three (i), (ii) and (iii) cannot be grouped together as alternative and interchangeable requirements. The decision maker has to assess whether the citizenship or visa status of the person upon whom the applicant is dependent has changed since the applicant last applied for a substantive visa.  This means, that if the status of the sponsor changes from permanent visa holder to citizen, the applicant has not continued to be the dependent child of the sponsor who is a permanent visa holder and an Australian citizen but the applicant has become the dependent child of an Australian citizen. The decision maker must assess the status of the sponsor, and if the status has changed, assess whether it changed after the applicant last applied for a substantive visa. 

13. The applicant last applied for a substantive visa on 31 January 2017. [In] May 2018 the applicant’s mother was granted Australian citizenship, and the applicant became the dependent child of an Australian citizen on [that day]. Therefore the applicant, since last applying for a substantive visa has become the dependent child of an Australian citizen. Accordingly, the applicant meets the requirements of cl.802.211(b).

14. For the reasons above, the applicant meets the criteria in cl.802.211.

15. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

16. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.211 of Schedule 2 to the Regulations.

    Margie Bourke
    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.

    …