2409879 (Migration)

[2024] AATA 4191

2409879 (Migration) [2024] AATA 4191 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  2409879

MEMBER:Justine Clarke

DATE:8 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.212 of Schedule 2 to the Regulations;

·cl 802.214 of Schedule 2 to the Regulations; and

·cl 802.221(2) of Schedule 2 to the Regulations.

Statement made on 08 October 2024 at 10:54am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependency – child over 18 at time of application and over 25 at time of decision – incapacitated due to total or partial loss of bodily or mental functions – medical evidence, statement from mother and letter of support – no consideration of study requirement – priority processing and decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 802.212, 802.214(1)(c), (2), 802.221(2)

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 on 19 April 2024 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 12 May 2022, the applicant applied for the visa. At the time she applied for the visa, the applicant was 24 years of age. At the time of this decision, she is 27 years of age.

3. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

4. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.212 and cl 802.214, which are both time of application requirements.

5. Clause 802.212 relevantly provides:

   (1)  The applicant:

   (a)is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

   (b)subject to subclause (2), has not turned 25.

   (1A) …

   (2)  Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

6. The expression ‘dependent child’ is defined in reg 1.03. A dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’ is as follows.

   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:

   …

   (b)       has turned 18 and:

   …

   (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions

7. Clause 802.214 provides:

   (1)  If the applicant has turned 18:

   (a)the applicant:

   (i)is not engaged to be married; and

   (ii)does not have a spouse or de facto partner; and

   (iii)has never had a spouse or de facto partner; and

   (b)the applicant is not engaged in full-time work; and

   (c)subject to subclause (2), 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.

   (2)  Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

8. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate was not satisfied that either cl 802.214(1)(c) or cl 802.214(2) was met and refused to grant the visa on this basis.

9. On 29 April 2024, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review.

10. On 4 September 2024, the Tribunal received:

    ·Detailed written submissions (21 pages), dated 3 September 2024, ‘urg[ing] the Tribunal to find that clauses 802.212, 802.214 and 802.221 of Schedule 2 to the Regulations are met, and to remit [the applicant]’s application to the Department accordingly. We also seek priority processing and a favourable “papers decision” on the basis that there are compelling reasons for the prompt finalisation of the matter’.

    ·Numerous documents in support, including a statement from the applicant’s mother, various recently-obtained medical evidence, a letter of support from [Ms A] and VEVO checks along with other things. The supporting documents are listed at pages 20 and 21 of the written submissions and need not be listed again here.

11. The Tribunal will provide the written submissions and supporting documents to the Department.

12. On 17 September 2024, the Tribunal granted the request for priority processing of the review.

13. Following constitution to the presiding Member and considering the new evidence received in this review, the Tribunal is satisfied that the criteria in clauses 802.212, 802.214[1] and 802.221(2)[2] are met and has concluded that the matter should be remitted for reconsideration.

    [1] For the avoidance of doubt, the Tribunal notes here that it has found that cl 802.214(2) is met and so has not considered it necessary to assess whether cl 802.214(1)(c) is met.

    [2] This provision provides: ‘(2) In the case of an applicant who had turned 18 at the time of application: (a) the applicant: (i) continues to satisfy the criterion in clause 802.212; or (ii) does not continue to satisfy that criterion only because the applicant has turned 25; and (b) the applicant continues to satisfy the criterion in clause 802.214’.

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

    DECISION

15. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.212 of Schedule 2 to the Regulations;

    ·cl 802.214 of Schedule 2 to the Regulations; and

    ·cl 802.221(2) of Schedule 2 to the Regulations.

    Justine Clarke
    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.

    …