2012130 (Migration) - [2022] AATA 2607

2012130 (Migration) [2022] AATA 2607 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2012130
MEMBER:Helena Claringbold
DATE:14 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 14 June 2022 at 10:21 am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – substantial period – money transfers – support from multiple family members over time – decision under review affirmed
LEGISLATION
Migration Act 1958, s 359AA
Migration Regulations 1994, rr 1.03, 1.05; Schedule 2, cls 802.212, 802.214, 802.221
CASES
Huynh v MIMIA [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

On 14 August 2019, [name], the applicant, applied for a Child (Residence) (Class BT) Subclass 802 visa. The application was based on him being a dependent child of [father’s name], the sponsor.
On 15 July 2020, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant met cl. 802.212, cl. 802.214(1)(c) and cl. 802.214(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) made under the Migration Act 1958 (the Act). On 27 July 2020, the applicant provided the Tribunal with a copy of the delegate’s decision. This is a review of the delegate’s decision brought by the applicant.
On 24 March 2022, the Tribunal wrote to the applicant and invited him to a hearing scheduled for 1 June 2022. The hearing was to be conducted in person. On 31 March 2022, the applicant confirmed his attendance. The applicant was advised to the following:
Please provide all documents you intend to rely on to support your case by 25 May 2022. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
Statements written in Australia by the applicant and the sponsor and third party statements are to be provided as statutory declarations. The statutory declarations must be correctly witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.
Statutory declarations and third party statements written by persons who do not write and understand the English language, are to be written in the persons’ own language.
Documents not written in English must be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved…

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 2012130 (Migration)

Details

AGLC: 2012130 (Migration) [2022] AATA 2607
Case: [2022] AATA 2607
Decision Date: 14 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, brought by the applicant, who sought to establish that they were a dependent child of the sponsor, an Australian permanent resident. The applicant was born in the Philippines, and their father, the sponsor, resided in Australia. The applicant also had other family members in the Philippines and a sister in Australia, and their grandmother had resided in Australia until her passing in October 2021. The core dispute revolved around whether the applicant met the criteria for being a "dependent child" as defined by the Migration Regulations 1994.

The court was required to determine two primary legal issues. Firstly, whether the applicant qualified as a "dependent child" of the sponsor at the time of application and decision, considering the definition of dependency in Regulation 1.05A, which requires substantial reliance for basic needs and that this reliance is greater than any other source of support. Secondly, the court needed to assess whether the applicant had, since turning 18 or within a reasonable time after completing Year 12, undertaken a full-time course of study leading to a professional, trade, or vocational qualification.

The Tribunal affirmed the decision not to grant the visa. The reasoning focused on the definition of "dependent child" under Regulation 1.05A. The Tribunal found that the applicant had not been wholly or substantially reliant on the sponsor for financial support to meet basic needs for a substantial period immediately preceding the application. Crucially, the evidence indicated that support for the applicant came from multiple family members over time, and this reliance was not demonstrably greater than reliance on other sources. The Tribunal also considered the applicant's educational status, but the primary basis for affirming the decision was the failure to establish the requisite degree of dependency on the sponsor.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the applicant is a dependent child of the sponsor. The second issue is whether the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.BACKGROUND ON THE EVIDENCE The applicant was born in [year] in Quezon City, Philippines. His father (the sponsor) lives in Australia. His mother, [sibling] and maternal grandparents live in the Philippines. He has a sister living in Australia. At the time of application, his grandmother lived in Australia. In October 2021, she passed away. The sponsor was born in [year] in Quezon City, Philippines. [In] October 2007, he entered Australia on a [temporary] visa. On 28 March 2019, he was granted a (Class BU) Subclass 836 Carer visa.Dependent child criteria The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a) of Schedule 2 to the Regulations.Dependent child At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(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. 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].Dependent ‘Dependent’ is defined in reg.1.05A of the Regulations as follows:(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.

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 Tribunal has taken into consideration, individually and as a whole, all of the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in the present case is whether the applicant is a dependent child of the sponsor. The second issue is whether the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.BACKGROUND ON THE EVIDENCE The applicant was born in [year] in Quezon City, Philippines. His father (the sponsor) lives in Australia. His mother, [sibling] and maternal grandparents live in the Philippines. He has a sister living in Australia. At the time of application, his grandmother lived in Australia. In October 2021, she passed away. The sponsor was born in [year] in Quezon City, Philippines. [In] October 2007, he entered Australia on a [temporary] visa. On 28 March 2019, he was granted a (Class BU) Subclass 836 Carer visa.Dependent child criteria The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a) of Schedule 2 to the Regulations.Dependent child At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(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. 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].Dependent ‘Dependent’ is defined in reg.1.05A of the Regulations as follows:(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.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Helena ClaringboldMemberATTACHMENT – 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.…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.…Dependent child‘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.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 MIMIA [2006] FCAFC 122 at [39], [44].Dependent‘Dependent’ is defined in r.1.05A of the Regulations as follows:(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

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