1933355 (Migration)

[2021] AATA 1257

1933355 (Migration) [2021] AATA 1257 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933355

MEMBER:Margie Bourke

DATE:16 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.211 of Schedule 2 to the Regulations.

Statement made on 16 February 2021 at 11:00am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – visa applicant is the natural and biological child of the review applicant – DNA report provided – applicant hasn’t turned 25 –visa applicant is the dependent child of an Australian citizen – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cl 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122
MIMIA v Graovac [1999] FCA 1690

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 2 October 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).

2. The visa applicant applied for the visa on 15 June 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).

3. 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 that the visa applicant is the dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen, who has not turned 25 (or is incapacitated within the meaning of r.1.03(b)(ii) and is either the natural child, stepchild or adopted child of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen.

4. The delegate refused to grant the visa on the basis that cl 101.211 was not met because the delegate was not satisfied that the visa applicant was the child of the review applicant, and further the delegate was not satisfied that the visa applicant was dependent upon the review applicant within the meaning of r.1.05A.

5. The Tribunal had regard to the nature of the review and the circumstances of the review applicant, and the Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal decided this matter was an appropriate review in which the hearing could be conducted by way of video.

6. The review applicant appeared before the Tribunal on 9 February 2021 to give evidence and present arguments. The review applicant appeared by video with her representative. The Tribunal also received oral evidence from the visa applicant who attended by video from Bangladesh.

7. The review applicant was represented in relation to the review by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

9. 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

10. 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.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

12. Based on the review applicant’s Australian issued passport, which was issued in 2009, I am satisfied that the review applicant is an Australian citizen.

13. Based on the translated Unmarried Certificate issued 24 December 2020, I am satisfied the visa applicant is not married. Based on the evidence before me I am satisfied that the visa applicant does not have a spouse and is not engaged to be married, and did not have a spouse and was not engaged to be married at the time of application.

14. Based on the visa applicant’s Bangladeshi passport and other identity documents, I am satisfied that he was born in [year], and was aged [age] years at the time of application. There is no evidence before me either written or in submissions made at the hearing that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. I am satisfied that the definition of dependent child in r.1.03(b)(ii) does not apply.

15. Based on the DNA report of the NATA accredited Identitilab dated 24 November 2020, which concluded that the review applicant is the mother of the visa applicant, I am satisfied that the visa applicant is the natural and biological child of the review applicant.

16. Based on the written and oral evidence before me I am satisfied that at the time of application, June 2017, the review applicant resided in Australia and the visa applicant resided with his maternal grandmother in [a named town], Bangladesh. I am satisfied that in June 2017 the visa applicant’s grandmother owned a home in which they lived. I am satisfied that the visa applicant’s uncle and his wife and children also lived in the house. I am satisfied that the visa applicant’s uncle had a [business], and contributed financially to the household by paying bills and providing groceries.

17. The visa applicant stated in the hearing that he would be able to provide records that his mother had provided financial support to him on a monthly basis in the 12 month period prior to the time of application. The tribunal had noted that the delegate recorded only two fund transfer slips were provided to the Department as evidence of the financial support prior to the time of application. The tribunal allowed a period of one week after the hearing for the review applicant to provide the evidence of financial support over the 12 month period prior to the time of application, which was June 2016 until June 2017.

18. After the hearing the review applicant provided the tribunal with copies of twenty receipts for transfer of money from herself to the visa applicant during the period 7 June 2016 to 5 June 2017, for amounts between $200 and $2006. Based on the written and oral evidence before me I am satisfied that the time of application, June 2017, and for a period of at least 12 months prior to that, the review applicant had been providing financially for the visa applicant.

19. Based on the oral and documentary evidence provided, I am satisfied that the review applicant would send the visa applicant money once or twice every month, in amounts of between $200 and $2006 AUD. I am satisfied that this financial support was used to pay for the visa applicant’s school and university education expenses, his transport costs to get to school and university and for his personal and basic needs. I am satisfied based on the evidence given at the hearing that the review applicant also sent the visa applicant gifts, including shoes, phone and cosmetics. I am satisfied that the visa applicant’s uncle requested the visa applicant to contribute financially to the cost of groceries and expenses for the household. I am satisfied based on the evidence before me, that the visa applicant purchased his own clothes (which the evidence was are very cheap in Bangladesh), and also purchased his own food as he had a preference for protein in his food.

20. Based on the evidence before me, I am therefore satisfied that at the time of application and for a substantial period before that time, the basic need of the visa applicant for his shelter and accommodation was provided by his grandmother. I am also satisfied based on the evidence before me that at the time of application and for a substantial period before that time the basic needs of the visa applicant for clothing was provided for by the financial support of the review applicant. I am satisfied based on the evidence before me that at the time of application and for a substantial period before that time the basic needs of the visa applicant for food was provided for by the financial support of the review applicant and, to a lesser extent, by the visa applicant’s uncle. I have assessed the evidence before me, I accept that the visa applicant was substantially reliant on the review applicant for financial support to meet his basic needs for food and clothing.

21. I have applied the principle espoused in MIMIA v Graovac [1999] FCA 1690, and applied a broad practical approach to an assessment of the visa applicant’s dependence on the review applicant. I am satisfied that the visa applicant resides in a home owned by his grandmother, and that some of the finances of the household are supported by his uncle, including bills and groceries. However I accept that the visa applicant’s basic needs are substantially met by the financial support of the review applicant, in providing financial support directly to the visa applicant. I accept the visa applicant relies on the financial support provided by the review applicant to contribute to the finances of the household, for the provision of groceries and food for the house, and relies on the financial support of the review applicant to buy his own food and clothes. I accept that the visa applicant is therefore substantially reliant on the review applicant for his financial support to meet his basic needs of food and clothing.

22. In assessing whether the visa applicant meets the definition of financial dependence within the meaning of r.1.05A the tribunal has assessed the ‘substantial period’ as a period of 12 months.

23. This based on the evidence before it, the tribunal is satisfied that the visa applicant was and had been for a substantial period immediately before the time of application wholly or substantially reliant on the review applicant for financial support to meet the visa applicant’s basic needs for food and clothing. The tribunal finds the visa applicant was not substantially reliant on the review applicant to meet his basic needs for shelter. The tribunal further finds that the visa applicant’s reliance at the time of application on the review applicant was greater then his reliance on any other person, or source of support, for financial support to meet his basic needs. Therefore the tribunal concludes that the visa applicant is dependent upon the review applicant at the time of application within the meaning of r.1.05A.

24. For the above reasons the tribunal finds the visa applicant at the time of application is a dependent child of the review applicant within the meaning of r.1.03 and r.1.05A.

25. The tribunal finds the visa applicant meets the requirements of cl.101.211(1) because the tribunal is satisfied that the visa applicant is the dependent child of an Australian citizen, the visa applicant has not turned 25 years of age, and the visa applicant is the natural or biological child of the Australian citizen.  

26. Therefore, the visa applicant meets the requirements of cl 101.211 at the time of application.

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

    DECISION

28. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.211 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.

    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.

    …