Almero (Migration) - [2024] AATA 2447

Almero (Migration) [2024] AATA 2447 (26 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ryam Jordan Santiago Almero
VISA APPLICANT:  Mr Stephen Kenneth Maitim Almero
CASE NUMBER:  2316216
HOME AFFAIRS REFERENCE(S):          BCC2021/2001184
MEMBER:Deputy President Justin Owen
DATE:26 June 2024
PLACE OF DECISION:  Sydney
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; and
·cl 101.221(1) of Schedule 2 to the Regulations.

Statement made on 26 June 2024 at 12:25pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – satisfied that the review applicant is the biological father of the visa applicant – DNA evidence – visa applicant is a ‘dependent child’ of his father – applicant under 25 – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 19 October 2021. 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).
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(1).
The delegate refused to grant the visa on the basis that cl 101.211 was not met because the delegate was not satisfied the visa applicant was the dependent child of the review applicant at the time of application.
The review applicant appeared before the Tribunal on 25 June 2024 via videoconference to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is a dependent child of a person (as defined in reg. 1.03) who is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
Dependent child criteria
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,…

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 Almero (Migration)

Details

AGLC: Almero (Migration) [2024] AATA 2447
Case: [2024] AATA 2447
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101. The review applicant, identified as the biological father of the visa applicant, sought reconsideration of a decision that had refused the visa. The core dispute revolved around whether the visa applicant qualified as a "dependent child" of the review applicant, who was an Australian citizen.

The Tribunal was required to determine whether the visa applicant met the criteria for a dependent child as defined in regulation 1.03 of the Migration Regulations 1994. Specifically, the Tribunal needed to assess if the visa applicant was under 25 years of age and, if 18 or older, whether they were reliant on the review applicant for financial support to meet basic needs, or incapacitated for work. The delegate's refusal was based on doubts regarding the claimed biological relationship, stemming from a late-registered birth certificate and an uncorroborated affidavit of paternity.

The Tribunal found that the visa applicant was the biological child of the review applicant and was under 25 years of age. It concluded that the delegate's concerns about the biological relationship, while understandable given the evidence presented at the time, did not preclude the visa applicant from meeting the criteria. The Tribunal determined that the matter should be remitted for reconsideration, with the direction that the visa applicant met the criteria under cl 101.211 and cl 101.221(1) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is a dependent child of a person (as defined in reg. 1.03) who is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.Dependent child criteria 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 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. 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]. The Tribunal notes the delegate refused the application on the basis that they were not satisfied the visa applicant had demonstrated the claimed familial biological relationship between himself and his named father, the review applicant. The delegate noted the visa applicant had provided his Philippines birth certificate which lists the review applicant as his father and Mrs Alma Romina Lozano Maitin as his mother. His date of birth is listed as 16 February 2004. The delegate noted that birth registration is legally required within 30 days of birth. Evidence suggested the birth was not registered however for some 78 days, being stamped and signed on 4 May 2004. The delegate noted that this meant the primary supporting evidence of the biological relationship between the review applicant and visa applicant was a late-registered birth certificate. The delegate suggested a delayed birth registration may indicate data manipulation. The delegate noted the review applicant had signed an affidavit of paternity, acknowledging he was the father of the visa applicant. The delegate declined however to give the affidavit any positive weight as it was unable to be verified, nor supported by corroborative documentation or information. The delegate concluded the claimed biological relationship between the visa applicant and review applicant was unreliable.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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; and·cl 101.221(1) of Schedule 2 to the Regulations.Justin OwenDeputy PresidentATTACHMENT – 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.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.…

Ratio Decidendi

Legal Principle Established

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