Bathla (Migration)

[2019] AATA 1112

Bathla (Migration) [2019] AATA 1112 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mysa Bathla

CASE NUMBER:  1834050

HOME AFFAIRS REFERENCE(S):           CLF2018/855

MEMBER:Helen Kroger

DATE:11 January 2019

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.802.225 of Schedule 2 to the Regulations; and

Statement made on 11 January 2019 at 12:12pm   

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – evidence of signed consent from mother to come to Australia provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth) 1994, rr 1.03, 1.05, Schedule 2, cls 802.212, 802.221, 802.225, Public Interest Criteria, 4017, 4018

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 Home Affairs on 15 November 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 January 2018. 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).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visa on the basis that cl.802.225 in Schedule 2 to the Regulations on the basis that he/she was not satisfied that the applicant’s mother had given her consent for the applicant to come to Australia.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is a dependent child as set out in cl.802.212 of Schedule 2 to the Regulations and if the applicant has not turned 18 years of age, public interest criteria 4017 and 4018 must be met.

   Dependent child criteria

7. 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).

   Dependent child

8. 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 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.

9. The applicant was born in India on 28 May 2017 and the claimed biological parents, named as sponsors in the visa application, are permanent residents in Australia. The Tribunal has reviewed the documentation before it, including the applicant’s birth certificate and a certified copy of her passport, and is satisfied that the applicant is the biological daughter and dependent of the identified parents.

10. Accordingly, cl.802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Public Interest Criteria 4017

11. Public Interest Criteria 4017 states that the Minister must be satisfied of one of the following:

    (a)law of the applicant’s home country permits the removal of the applicant;

    (b)each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

    (c)the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

12. The application was lodged on the 5 January 2018 with the inclusion of Form 1229 that includes the provision for the custodial parents to sign their individual consent, to indicate their support and authority for the application. The Form 1229 returned to the Department included the father’s signed authorisation and whilst identifying the details of the mother, did not include her signature. The application was subsequently refused by the delegate as the second parent had not provided her consent.

13. The Tribunal has carefully reviewed documentation before it that includes an updated Form 1229 (folio14-17), that includes signed consent from the applicant’s mother.

14. Accordingly, the Tribunal finds that part (b) identified above under PIC4017 is satisfied and therefore PIC4017 is met.

    Public Interest Criteria 4018

15. Public Interest Criteria requires that “the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.” There is no evidence before the Tribunal to indicate that the granting of a visa to the applicant would not be in her best interest.

16. Accordingly, the Tribunal finds that the requirements of PC4018 are satisfied.

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

    DECISION

18. 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.802.225 of Schedule 2 to the Regulations; and

    Helen Kroger
    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.

    …