2002456 (Migration)

[2020] AATA 4371

2002456 (Migration) [2020] AATA 4371 (4 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2002456

MEMBER:Justin Meyer

DATE:4 August 2020

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(1) of Schedule 2 to the Regulations; and

·cl.101.221(2) of Schedule 2 to the Regulations.

Statement made on 4 August 2020 at 12:55pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – wholly or substantially reliant on the sponsor for financial support – dependent child of the sponsor – visa applicant over 18 years – full-time course of study at time of decision – providing regular support to the visa applicant – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.213, 101.221; rr 1.03, 1.05

CASES

Huynh v MIMA [2006] FCAFC 122

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 6 December 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 November 2018. 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 (the Regulations). Relevantly to this case, they include cl.101.221 and cl. 101.213(1)(c) or cl. 101.221(2)(b).

4. The delegate refused to grant the visa on the basis that cl.101.211(1)(a) was not met because not they were not satisfied that the visa applicant had been wholly or substantially reliant on the sponsor for financial support to meet his basic needs for food, clothing and shelter. The delegate went on to find that the visa applicant did not meet cl.101.221(1)(a).

5. Per cl.101.211(1)(a) ‘dependent child’ is defined in r.1.03 of the Regulations. Here it provides that the child must not be engaged or partnered, and if 18 or older (which he was at the time of the application), 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. The refusal therefore extended to the grounds of the applicant not continuing to satisfy the criterion in cl.101.211.

6. The review applicant (sponsor) appeared before the Tribunal on 23 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [the visa applicant]. [Two named persons] were put forward as witnesses but the Tribunal concluded that it was unnecessary to seek further corroboration of the visa applicant’s account and arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. The review applicant (sponsor) was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the visa applicant is a ‘dependent child’ as defined in the Regulations.

   Dependent child criteria

10. 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

11. 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 r.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.

12. 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].

13. According to information provided as part of the visa application, the visa applicant was born in [Country 1] on [date]. From this uncontradicted information I find the applicant was 18 years old or over under the requirement at the time of application (14 November 2018).

14. I also find that the visa applicant is the natural child of the review applicant (sponsor), who is a female Australian permanent resident. This is evident from the identity documents supplied to the department. The visa applicant is sponsored by the review applicant.

15. The Tribunal considers it evident that the visa applicant is a ‘dependent child’ of an eligible person at the time of application and/or decision, that is to say that as a person over 18 at time of application he is incapacitated or ‘dependent’ (wholly or substantially reliant for basic needs).

16. There is evidence submitted to the department to this effect, and there has been a substantive submission to the Tribunal.

17. It is established that:

    ·In [Country 1], the visa applicant completed his primary and secondary schooling and commenced tertiary studies.

    ·Between [specified years], the visa applicant was enrolled in [a Subject 1] course at [a named] University in [Country 1].

    ·From [specified year] to [year], the visa applicant was enrolled in a [Subject 2] course at [a second] University.

    ·In September 2016, the visa applicant sought refuge in [Country 2], following the outbreak of [civil war]. The visa applicant now resides in [Country 2].

    ·The visa applicant completed a [Subject 3] course from 15 September 2016 to 1 June 2018.

    ·On 7 September 2018, the visa applicant commenced a full-time [Subject 4] course with an expected end date of 31 January 2022. This course has a theoretical and practical component. The practical component requires him to complete an apprenticeship and the visa applicant is currently completing an apprenticeship in [two subjects] on a part time basis, as part of his course.

    ·The visa applicant receives government benefits.

    ·The visa applicant, from various declarations and oral evidence, I conclude has never married and does not have a partner. He receives regular money transfers from his mother, the review applicant (sponsor). This is evidence of several years and there is further evidence about relatives and friends travelling to [Country 2] being given cash to take to him. Consistent evidence was given here. Western Union transfers receipts and statutory declarations were supplied, which covered a period to 2020. The majority of the visa applicant’s living expenses for food, shelter and clothing is paid for by his mother. His father died some years ago. He receives some limited income form a scholarship/ apprenticeship which is part of his course, but I accept this this is a minority of his funds

    ·He had no savings. His mother funds this out of her Australian government benefit, while living with her child in Australia.

    ·The visa applicant receives a study benefit in [Country 2] but this is a minimal sum which reduces whenever he receives an increased income in [Country 2] (from his apprenticeship for example).

    ·He is substantially reliant on his mother (the review applicant (sponsor)) for financial support for his financial needs. This has occurred for substantial period immediately before the relevant time.

    ·I accept that the visa applicant’s monthly expense for food, clothing and shelter is EUR1,865.

    ·The visa applicant is currently renting, with a monthly overall cost to him of him of around EUR515.

    ·His monthly expenses breakdown is as follows:

    o   Rent:                    EUR 305 

    o   Electricity:            EUR 40 

    o   Gas and water:     EUR 50  

    o   Toiletries:             EUR 120

    o   Clothing:               EUR 200

    o   Food:                    EUR 1,150

    o   Water:                  EUR 146

    ·The visa applicant’s monthly earnings are as follows:

    o   EUR 663 from [a named employer] (corroborative bank statements were sent)

    o   EUR 348.86 monthly government benefits

    ·The minimum monthly financial assistance provided by the sponsor to the visa applicant amounts to approximately EUR945. I note that larger sums have been given over certain months.

18. The visa applicant has been, for a substantial period immediately before the application, substantially reliant on the sponsor for his financial support to meet his basic needs for food, clothing and shelter. The visa applicant relies on the review applicant (sponsor) more than anyone else, or source of support, for financial support to those needs. From the evidence the payments have extended from 2019 onwards until the present. The Tribunal sighted receipts from money transfer companies and the sponsor could discuss the payments in satisfactory detail, as could the visa applicant. Other witnesses in the form of family members were prepared to give further evidence on this point, but the Tribunal having satisfied itself as to veracity of the oral and written evidence (including declarations) did not require further response.

19. The overall credibility of the visa applicant satisfied the Tribunal – he could detail his former studies in [Country 1], his departure seeking refugee protection in [Country 2] and his current day life and studies were consistently described.

20. I accept from his identity documents that he is born on [date] and is thus [age] years old.

21. The applicant is a ‘dependent child’ of an eligible person at the time of application and decision i.e. he is over 18 at time of application, and is ‘dependent’ (wholly or substantially reliant for basic needs),

22. Accordingly, cl.101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Child-parent relationship

23. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

24. At the time of application and decision, the visa applicant is a child of a permanent visa holder. Accordingly, cl.101.211(1)(c) met at the time of application, and continues to be met at the time of decision.

25. For the reasons above, the criteria in cl.101.211(1) and cl.101.221(2) are met.

26. Although not grounds utilised for the refusal by the delegate I, for completeness, find the visa applicant has turned 18, is not be engaged to be married, and has not or ever had a spouse or de facto partner. The applicant has not been engaged in full-time work at the time of application and decision, having only been in a part time apprenticeship.  He has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. I base this on his oral evidence and institution and financial records provided.

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(1) of Schedule 2 to the Regulations; and

    ·cl.101.221(2) of Schedule 2 to the Regulations.

    Justin Meyer
    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.

    …