1921071 (Migration)

[2020] AATA 5370

1921071 (Migration) [2020] AATA 5370 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921071

MEMBER:Margie Bourke

DATE:17 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 visa:

·cl.836.221 of Schedule 2 to the Regulations; and

the Tribunal remits the applications for reconsideration with the direction that the second named applicant meets the following criteria for a subclass 836 visa:

·cl.836.321 of Schedule 2 to the Regulations.

Statement made on 17 December 2020 at 4:48pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – parents of the sponsor – provides care to step-child of sponsor – relationship between the sponsor and biological parent of step-child end – continuation of step relationship – Parenting Orders made in the Family Court of Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360

Migration Regulation 1994 (Cth), r 1.15A; Schedule 2, cls 836.221, 836.321

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 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 17 June 2016. The delegate refused to grant the visas on 19 July 2019.

2. In the decision record the delegate recorded that on 18 August 2017 the Department had determined that the first named applicant met the criteria for the carer visa application as of 9 May 2017.  The visa applications were then placed in a queue awaiting release for further assessment prior to the grant of the visa.

3. The visa applicants are the parents of the Australian resident for the purpose of Carer visa, and the person requiring care is the step son of the Australian resident.  The Australian resident is the daughter of both the visa applicants, and she was married to the biological father of the person needing care at the time of application, and at the time the Department assessed the visa applicants met the criteria for the carer visa application in 2017.

4. The Australian resident advised the Department on 17 June 2019 that she had separated from the biological father of the child needing care.  The visa applicants provided information to the Department that the Australian resident had joint custody of the child and he remained in her care.

5. The delegate made the decision on the basis that Part (b) of the definition of step child recognises a step relationship between a step child and step parent can continue for the purpose of visa applications, although the relationship between the step parent and biological parent has ended. However, the regulations require that the child is under 18 years old, and the step parent has a parenting order under the Family Law Act 1975 in force under which the step child is to live with the step parent or the step parent is to be responsible for long term day to day care and development and welfare of the step child, or the step parent has a custody or guardianship order of the step child. At the time of the Department decision dated 19 July 2019 the Australian relative of the visa applicants did not have the required parenting order or custody or guardianship order. Therefore the Department found that relationship between the Australian relative of the visa applicants and the person requiring care did not meet the criteria for a carer visa in r.1.15A(1).

6. The tribunal has noted that the Department has previously determined that the applicants satisfied the criteria for the grant of the visa. The only issue to be considered is whether there is satisfactory evidence that the step relationship between the Australian relative, the step mother, and the person in need of care, the step child, has continued.

7. On 20 November 2019 the Tribunal received Parenting Orders made in the Family Court of Australia dated [in] November 2019.  The parenting orders are made by consent, and are signed by the child’s step mother and both biological parents. The parenting orders set out equal shared parenting responsibility between the step mother and the biological father in relation to all long term issues effecting the welfare and development of the child.  The parenting orders set out shared residence arrangements, including that the child spends equal time (one week alternately) with the stepmother and then the biological father. The consent parenting orders set out arrangements for contact with the child’s biological parents and stepmother.  The tribunal is satisfied that the parenting orders meet the requirements of the regulations, and therefore the step relationship between the step mother (who is the Australian relative) and the step child (who is the person in need of care) for the purposes of the criteria for the carer visa.

8. Based on the documents provided I am satisfied that the child was born in [year] and is aged under 18 years. Based on the parenting order provided, I am satisfied that the step relationship between the step mother and the step child continues and meets the requirements of the regulations although the relationship between the step mother and the child’s biological parent has ended. I am satisfied that the person in need of care is the step child of the Australian relative.

9. Therefore the first named applicant continues to meet the requirements of carer in the r.1.15A, and continues to satisfy the primary criteria for the grant of the visa. Further, the second named visa applicant, the spouse of the first named visa applicant, is a secondary visa applicant who is a member of the family unit of and made a combined application with a person who satisfies the primary criteria.

10. In light of the new evidence received, the Tribunal is satisfied that the criterion is met by both applicants, and has concluded that the matter should be remitted for reconsideration.

11. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 visa:

    ·cl.836.221 of Schedule 2 to the Regulations; and

    the Tribunal remits the applications for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 836 visa:

    ·cl.836.321 of Schedule 2 to the Regulations.

    Margie Bourke
    Member