Badoola (Migration)

[2018] AATA 260

Badoola (Migration) [2018] AATA 260 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lal Bibi Badoola

VISA APPLICANT:  Mr Razzaq Badoola

CASE NUMBER:  1606709

DIBP REFERENCE(S):  2012000934

MEMBER:Kira Raif

DATE:9 February 2018

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. 101.213 of Schedule 2 to the Regulations

Statement made on 09 February 2018 at 7:34am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Dependent child – Not turned 25 – Biological child of sponsor

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2 cls 101.211, 101.213, 101.221

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 Immigration on 8 September 2014 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 is a national of Pakistan born in May 1995. He applied to the Department of Immigration for the visa on 6 December 2012. The delegate refused to grant the visa on the basis that cl. 101.213 was not met because the delegate was not satisfied the applicant was a dependent child and that he met the relevant study requirements. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal determined it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. 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).

6. ‘Dependent child’ is defined in r.1.03 of the Regulations. 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. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

   Does the applicant meet the study requirement?

7. The delegate found that the applicant had not engaged in any study since March 2004, for a period exceeding ten years by the time of the primary decision and found that the applicant did not meet cl. 101.213.

8. The visa applicant’s birth certificate indicates that he was born in May 2005. The application for the visa was made in December 2012 and the Tribunal finds that the visa applicant was under the age of 18 at the time the application was made. The visa applicant did not turn 18 until May 2013.

9. Clause 101.213 applies if the visa applicant has turned 18 at the time of the application. As the visa applicant was not 18 when the application was made, the Tribunal finds that the study requirement in cl. 101.213 does not apply either at the time of the application or at the time of decision. Notably, for the purpose of cl. 101.221(2), that provision only applies to an applicant who had turned 18 at the time of the application. The Tribunal is satisfied the visa applicant meets cl. 101.213.

10. Further, because the visa applicant was under the age of 18 at the time the application was made, he meets the definition of ‘dependent child’ in subparagraph (a). The Tribunal is satisfied the applicant is a dependent child of a holder of a permanent visa. He has not turned 25 and is a biological child of the sponsor. The applicant meets cl. 101.211.

    Conclusion

11. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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.101.213 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member