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

1. 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.

2. 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.

3. 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 in or associated with the case under review. This includes any documents or information that the applicants consider relevant to their review that are on the Department of immigration and Border Protection’s case file and/or the Department of Home Affair’s case file and the Tribunal’s case file.

   The foreign language certified statements and the English translated certified statements are to be provided to the Tribunal. The statements must be correctly witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.

   Translations provided by non-certified translators outside of Australia should be endorsed by the translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.

4. On 1 June 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino (Tagalog) and English languages. The applicant and the sponsor confirmed that they understood the interpreter clearly.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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

7. 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

8. 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.

9. 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

10. 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

11. 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.

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].

    Dependent

13. ‘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.

14. PAM3 s5G Relationships and family members – Dependent family members states that  a ‘substantial period’ is usually taken to be at lease 12 months. Although the Tribunal is not bound by policy and as discussed with the applicant, the Tribunal will consider a ‘substantial period’ in this matter to be from 14 August 2018 to 14 August 2019.

    At the time of application, the applicant was over 18.  There is no evidence that the  applicant was or is incapacitated.

15. The composition of the applicant’s family is as follows:

    ·Father, [sponsor’s name], who lives in Australia.

    ·Mother, [Mother A], who lives in the Philippines.

    ·Sister, [Sister A], who lives in Australia.

    ·[Named sibling], who lives in the Philippines.

    ·Paternal grandmother, [Grandmother A], who lived in Australia, now deceased.

    ·Paternal grandfather, who lives in the Philippines.

    ·Maternal grandmother, who lives in the Philippines.

    ·Maternal grandfather, who lives in the Philippines.

    ·Aunt, [Aunt A], who lives in Australia.

    ·[Relative A], who lives in Australia

16. [In] June 2019, the applicant entered Australia as the holder of a [visitor] visa.  On the visa application form for the Subclass 802 child visa dated 8 August 2019, the applicant declared the following: from July 2015 to present his main source of financial support had been [Aunt A]. She provided him $50 per week for allowances and tuition fees. His other source of financial support was [Grandmother A] who provided him with financial support for tuition fees and accommodation and [Relative A] who provided him with financial support. He declared that his sister, [Sister A] entered Australia [in] June 2019, as the holder of a Tourist visa. He declared that from [birth] to May 2019, his address [Address 1], in the Philippines.

17. On the sponsorship form dated 8 August 2019, the sponsor declared that he was not in paid employment and had not been in paid employment at any time in the past two years and was the recipient of a carer payment. He lived in a two bedroom home living with his mother and the applicant at the New Canterbury Road address. The weekly payment for the home was $268.

18. A Centrelink statement for carer payment addressed to the sponsor is dated 5 August 2019. This stated that the sponsor’s rate of payment from 28 August 2019 would be $926.20 including energy, plus pension supplement. It showed him having a savings account ending 9976 with a last balance of $100 and $50 in cash and household and personal effects of $1,500.  A Centrelink statement for carer payment addressed to the sponsor is dated 8 May 2020. This stated the sponsor’s carer payment as $850, plus energy supplement of $14.10, plus pension supplement of $69.60, less general community housing of $368.28 leaving a total of $368.28.

19. In a statutory declaration [Aunt A] stated that she is the daughter of [Grandmother A] who sponsored [the applicant’s father/sponsor] for a carer visa. She is willing to support the applicant financially during his stay in Australia. She provided copies of her salary advice in support of her statement.

20. In a statutory declaration dated 8 August 2019, [Grandmother A] stated that the sponsor is her carer and cannot work. She provides him some financial assistance and accommodation with the help of her daughter [Aunt A]. She is receiving a fortnightly pension and is willing to support the applicant with accommodation.

21. In a statutory declaration dated 14 August 2020, the sponsor provided information including the following: he is providing the applicant with food, clothing and accommodation. He is living at the New Canterbury Road address. In a statutory declaration dated 25 May 2022, he declared that he is living at the John Street address. From 2019 to January 2022, the applicant lived with him at the New Canterbury Road address.  From January 2022 to present the applicant has lived with him at the John Street [address]. The sponsor declared providing food, clothing, accommodation and education for the applicant. TF124

22. A letter dated 25 May 2022 from [a recruitment provider] certifies that the sponsor  of [the John Street address] has been employed with [Employer 1] on a casual basis since 17 November 2021 as a labourer earning $29.32 per hour with a minimum work requirement of 38 hours per week  and plays a crucial role and is critical to the running of production.

23. The applicant told the Tribunal the following: he lived with his mother in the Philippines from birth until [June] 2019, when he came to Australia. His aunt, [Aunt A] came to Australia about 10 years ago.  Since that time, he lived permanently with his mother, his [sibling] and his maternal grandmother and grandfather. His maternal grandparents own the property where they lived and provided accommodation for him and they didn’t pay any rent. When he lived in the Philippines [Grandmother A] financially supported him for food and tuition fees by providing him $50 weekly. The sponsor paid for his food in the two years prior to him coming to Australia, this was possible because of the money given to the sponsor by [Aunt A]. Then his [Relative A] sent the money via Western Union to the applicant’s mother who provided food and clothing for the applicant. Since arriving in Australia, he lived with his grandmother and the sponsor. During this time [Aunt A] and [Relative A] stopped assisting him financially. [Aunt A] passed away in October 2021. After her passing the sponsor and the applicant moved to the John Street address. The sponsor supports the applicant financially providing him with food, clothes and accommodation.

24. The sponsor told the Tribunal the following: in the Philippines the applicant lived with his mother and [sibling] in a home owned by the applicant’s maternal grandparents. The sponsor cared for [Grandmother A] and [Aunt A] and [Relative A] gave him money. Then [Relative A] sent this money via Western Union to the applicant’s mother to support the applicant and his [sibling] and provide them with food and clothing. Sometimes the amounts sent were $200 or $300.

25. The Tribunal discussed with the applicant the claims that the sponsor sent money to the applicant’s mother via Western Union and that this money supported him financially for food and clothing. The Tribunal told the applicant that copies of money transfers dated 20 October 2017 for $300, 28 November 2017 for $270 and 14 December 2017 for $270 recorded [Relative A variant] as the sender. However, the recipient was not recorded on the transfers. The Tribunal told the applicant that other money transfers dated 23 August 2018 for $306, 6 December 2018 for $306, 24 April 2019 for $506 and 16 May 2019 for $306 did not record the sender. The recipient is recorded as [Mother A] to address [Address 1], Philippines. At the top of the  transfers [Mother A] is also recorded and it is noted ‘payment required’.

26. The applicant told the Tribunal that the money [Grandmother A] provided the applicant was used for food and tuition fees and the money [Relative A] provided him was used for tuition fees. When the sponsor came to Australia, the sponsor’s mother and [Aunt A] supported the sponsor financially. The sponsor then sent money to the applicant’s mother who provided the applicant with food and other expenses. [Relative A] transferred the money on behalf of the sponsor to the applicant’s mother.

27. The Tribunal put information to the applicant under s. 359AA of the Act. He was told the relevance and consequence of the information.  He was invited to comment on or respond to the information and advised that he could seek additional time to comment on or respond to the information.  The applicant responded to the information orally at the Tribunal hearing. The information put to the applicant is as follows:

    ·The sponsor told the Tribunal the following: he came to Australia in 2008 and the applicant continued to live with his mother in her parents’ home until the applicant came to Australia.  They didn’t pay any rent for the property as it was owned by the applicant’s maternal grandparents.  This information was put to the applicant as it is inconsistent with his evidence that after the sponsor came to Australia the applicant sometimes lived at the sponsor’s home in the Philippines and sometimes lived with his mother in the Philippines.

    ·The sponsor told the Tribunal the following: he had no income prior to August 2019 and [Grandmother A] or [Aunt A] paid the rent for the New Canterbury Road address and supported them financially. This information was put to the applicant as it is inconsistent with his evidence that when living with [Grandmother A] and the sponsor, they both paid the rent and the sponsor provided money for food and clothing.

28. The applicant told the Tribunal the following: sometimes he slept at his father’s home for a day or two. He would then return to his mother’s home which was his permanent address. He didn’t understand the financial arrangements.  However, the sponsor gave him money and it may have come from [Grandmother A] or [Aunt A].

29. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and as a whole. The Tribunal does not accept the sponsor’s claim that he supported the applicant financially when he lived in the Philippines by sending money provided to him by [Aunt A] and [Relative A] as there is no independent evidence to support his claim. The Western Union money transfers sent by [Relative A] in 2017 provide no evidence of the recipient. The money transfers recording [Mother A] as the recipient do not record a sender and it appears that payment had not been made for these transactions. The sponsor’s claims, which have been provided after the visa refusal, are also challenged by the applicant’s evidence which was given at the time of application where he clearly declared that from July 2015, [Aunt A] had been his main financial support and he received addition financial  support from [Grandmother A] and [Relative A].  The Tribunal finds that at the time of application, the applicant was financially supported by [Aunt A] who had financially supported him since July 2015 by providing him with $50 for allowances and his basic needs for food. He was further assisted financially by [Grandmother A] and [Relative A]. The evidence from the applicant and the sponsor is clear and that is that prior to the applicant entering Australia [in] June 2019, he lived with his mother, his [sibling] and maternal grandparents who provided the applicant with his basic needs for shelter. The sponsor’s evidence is that prior to August 2019 he had no income and the rent was paid for by [Grandmother A] or [Aunt A], who also supported them financially.  The Tribunal is of the view that up until the applicant entered Australia [in] June 2019, his maternal grandparents provided financial support for his basic needs for shelter and financial support for his basic needs for food and clothing were provided by [Aunt A], [Grandmother A] and [Relative A]. After he entered Australia and up until the time of application financial support for his basic needs for food, clothing and shelter were provided by [Grandmother A] and [Aunt A]. This is supported by the sponsor’s evidence that he had no income prior to August 2019 and [Grandmother A] or [Aunt A] paid the rent and supported both him and the applicant financially.

30. The Tribunal is satisfied that after August 2019, the sponsor would have provided financial support for the applicant’s basic needs for food, clothing and shelter because, on the evidence from 28 August 2019 the sponsor was receiving an income in the form of a carer payment and from 17 November 2021 he was employed at [Employer 1].

31. The Tribunal is satisfied that for a substantial period immediately before the time of application, the applicant was wholly or substantially reliant on [Aunt A] and [Grandmother A] for financial support to meet his basic needs of food and clothing and was wholly or substantially reliant on his maternal grandparents and  [Aunt A] and [Grandmother A] for financial support to meet his basic needs for shelter. The Tribunal is satisfied that his reliance on [Aunt A] and [Grandmother A] and his maternal grandparents was greater than his reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.

1. Accordingly, cl 802.212(1)(a) of Schedule 2 to the Regulations is not met at the time of application and does not continue to be met at the time of decision.

2. As the Tribunal has determined that the applicant does not meet cl.802.212(1)(a) of Schedule 2 to the Regulations it has not gone on to consider the other requirements for the grant of the visa, including the study requirement.

3. 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

4. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

   Helena Claringbold
   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.

   …

   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.