Brown (Migration)

Brown (Migration) [2018] AATA 5496 (12 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Poppy Jane Brown

CASE NUMBER:  1810901
HOME AFFAIRS REFERENCE(S):           CLF2017/20933
MEMBER:Ann Duffield
DATE:12 November 2018
PLACE OF DECISION:  Brisbane
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.802.211 of Schedule 2 to the Regulations;
·cl.802.212 of Schedule 2 to the Regulations; and
·cl.802.221 of Schedule 2 to the Regulations.

Statement made on 12 November 2018 at 1:45pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – meaning of ‘become a dependent child’ – applicant has ‘become dependent child’ for purposes of the Act – decision under review remitted
LEGISLATION
Migration Act 1958, ss 48, 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 802.211, 802.212, 802.216 802.221, 802.226

CASES
Huynh v MIMA [2006] FCAFC 122 at [39]
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 28 March 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 8 March 2017. 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).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (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.802.211. This clause requires the applicant to have “become a dependent child” of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand Citizen since she last applied for a substantive visa. The applicant had previously applied for a visa as a dependent on an application made by her mother in November 2016. That application was refused in February 2017.
The delegate refused to grant the visa on the basis that cl.802.211 was not met because the delegate formed a view that the applicant had always been a dependent of the sponsor as she was under the age of 18 years and could not, therefore, “become a dependent child” in the meaning of the Migration Act..
The applicants appeared before the Tribunal on to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, his parents, sister and brother in law.
The applicant was not represented in relation to this review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a British citizen born on 16 May 2005 (13 years old). She first arrived in
Australia with her parents, the sponsor and his then wife (Ms H) in 2010. The sponsor and Ms H separated in October 2014 and the applicant and her brother went to live with Ms H and her new partner.
In November 2016 Ms H made an application with her then de-facto partner for a partner visa and included the applicant and her brother as dependents. That application was refused on 6 February 2017. The applicant was unlawful from the cessation of the bridging visa associated with that partner application on 6 March 2017 until 8 March 2017 when she lodged the application subject to this review. The application was refused on 28 March 2018. The applicant is on a bridging visa in relation to this review.
The application was refused because the applicant did not meet the requirements of 802.211 which is as follows:
802.211
If the applicant is a person to whom section 48 of the Act applies, the applicant:
(a) has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(b) since last applying for a substantive visa, has become a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen.
The issues in the present case hinges on the definition of “dependent child” and “dependent”. Both terms are defined in the Migration Act and Regulations as Follows:
Regulation 1.03 definition of "dependent child "
The 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.
Regulation 1.05A Definition of 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.
(2) A person (the first person ) is dependent on another person for the purposes of an application for:
(d) a protection visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
The applicant’s agent in his submission to the department on the applicant’s behalf has used the definition “dependent” in regulation 1.05A and not “dependent child” in regulation 1.03.
The submission by the agent is that the applicant has “become dependent” upon the sponsor since the previous negative decision according to the definition of “dependent” in r.1.05A. In the delegate’s mind, however, this conflated the two definitions in a manner not intended by the Migration Act.
The matter is important as the applicant, by virtue of her period of unlawfulness for 3 days, is prevented under s.48 of the Migration Act to make another application whilst onshore unless it can be shown that she has “become dependent” on the sponsor in the meantime as required by cl.802.211. The delegate formed a view that as the applicant is the biological child of the sponsor, she has always been his “dependent child” and cannot therefore “become” one for the purposes of the Migration Act.
The delegate accepted that the applicant’s living arrangements had changed since her previous application, however he went on to find that as the applicant has been a dependent child of the sponsor since last applying for a substantive visa, she does not meet clause 802.211.
This surely defeats the purpose of the Regulations which the Tribunal believes is to allow the migration to Australia of dependent biological or step children, under the age of 18 years. It seems self-defeating to have to take into account “living arrangements” which can change for many valid reasons. For example, if the delegate were to apply his reasoning to a circumstance where one of the applicant’s biological parents had died, the applicant’s application would be refused.
The Tribunal is mindful that the definition of “dependent” in Regulation 1.05A was de-linked from Regulation 1.03 in around 1999. For what reason is not clear. However, “become dependent” clearly cannot mean that a child has “become” a biological child of the sponsor or a step-child of a sponsor who is their biological father (or mother). That would be absurd. There is no test for “dependency” in relation to regulation 1.03.
In the Tribunal’s mind, therefore, the “becoming” must relate to the dependency aspect of the definition and the only guidance the Tribunal has on that matter is in relation to Regulation 1.05A.
The Tribunal has also considered the change of the sponsor’s status since the applicant was last dependent upon him. Taken literally, 802.211(b) would also apply to the status of the sponsor. When the applicant was last a dependent upon the sponsor, her father, he was not an Australian permanent resident. His status has since changed to that of a permanent resident; hence the applicant could be seen as becoming a dependent child of the sponsor who now had the status of a permanent resident.
The Tribunal is very mindful that the applicant would not be in a position where she would need to demonstrate that she has “become a dependent child” of the sponsor, and hence meet the requirements of 802.211, if the application was lodged by her migration act on time.
The Tribunal has also considered the application of the s.48 bar in this circumstance. The Tribunal notes that there are no exceptional circumstances which can be considered in relation to the application of the s.48 bar. However, it seems to this Tribunal that the applicant would not be subject to the bar at all if the application for the visa subject to this review, was lodged by his representative, on time – ie on 5 March 2017. The application was received by the department on 8 March 2017.
A review of the applicant’s file shows that his representative at the time completed the application to the department on 3 March 2017. This included an explanation in relation to a potential for the application to be out of time as a result of some difficulties with the Agent receiving funds from the sponsor into his trust account and also the period of time involved in getting the documents from Brisbane to the processing office in Perth.
The Tribunal is of the view that a correct approach to this application takes these matters into account in such a way as to ameliorate the outcome for the applicant, a minor child. To, in effect, take a correct and preferable view of all the circumstances of the applicant and weigh them accordingly.
CONSIDERATION OF CLAIMS AND EVIDENCE
Dependent child criteria
The Tribunal does not accept that the intention of the Migration Act and Regulations is to exclude dependent children on the basis of which of their parents has formal or informal custody, or their “living arrangements”.
The facts are these:
a.the applicant is the biological daughter of the sponsor;
b.the applicant lived separately from the sponsor for a period of some 24 months;
c.the applicant was a secondary applicant on her mother’s application for a subclass 309 visa which was refused and the applicant’s mother has since departed Australia;
d.the application for the visa subject to this review was lodged 3 days out of time in circumstances not of the applicant’s making;
e.the applicant was not dependent upon the sponsor within the meaning of the Act prior to the lodgement of this application, and in any case, his status has changed to that of permanent resident. During the prior period of the applicant’s dependency upon the sponsor, he was the holder of a temporary visa.
At the Tribunal hearing the sponsor and the witnesses told the Tribunal that there had been no formal or court mandated agreements made in relation to the custody or financial support of the children during the period of the sponsor’s separation from his wife. They were not divorced. Apart from a period of around 6 months the sponsor remained in touch with the children and his ex-wife.
The sponsor’s tax returns indicate that he provided financial support to the children during his separation from his wife and also declared them as dependents. The sponsor and the children have lived together as a family unit since February 2017. This evidence is supported by the sponsor’s family as well as the applicant. He claims to have provided financial support to them out of a moral obligation and not a legal obligation. The Tribunal accepts this and in any case, the level of support provided to the applicant could not be construed as her thus becoming wholly or substantially dependent upon him within the meaning of the Migration Act.
From February 2017 to the present date the sponsor has been the sole provider of the applicant’s material and physical needs, as well as emotional support during what has been a difficult and traumatic time. The sponsor’s extended family also provided significant support in terms of holiday care and social interaction.
Whilst the sponsor’s wife is in the UK, her accommodation comprises a room in a shared house. She has contract work which is not stable. The sponsor and his witnesses emphasised to the Tribunal the detrimental effect such an unstable and unfamiliar environment would have on the children.
The sponsor also pointed out that if the children’s application fails and they are required to return to the UK, he would also be required to withdraw his current spouse application with his wife and make another application which included the children as dependents. As there is no question that the applicant and her brother are dependent, in all possible meanings of the word upon the sponsor and their mother it seems particularly unfair to have to put them through such a pointless multiplicity of applications, traumas and disruptions.
In the context of the totality of the applicant’s circumstances, the absence of a test for “dependency” in r.1.03 and the reasons set out above, the Tribunal is satisfied that the applicant meets the requirements of cl.801.211, in that the applicant has become dependent upon the sponsor since the lodgement of her last application.
But for the s.48 bar, the applicant would have to satisfy the requirements of cl.802.212. This 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).
There is no question in the Tribunal’s mind that both the applicant and her brother meet these requirements.
Dependent child
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.
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 applicant is under 18. The applicant is the biological child of the sponsor and the sponsor is an eligible person. Documentary evidence including the applicant’s birth certificate and the confirmation of the sponsor’s residency are on the department’s files.
Accordingly, cl.802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.
Conclusion about dependent child criteria
For the reasons above, the criteria in cl.802.211, cl.802.212 and cl.802.221 are met.
CONCLUSION
Given the findings above, the Tribunal has formed a view that the correct and preferable decision in the context of the entirety of the applicant’s circumstances, 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 (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.211 of Schedule 2 to the Regulations;
·cl.802.212 of Schedule 2 to the Regulations and
·cl.802.221 of Schedule 2 to the Regulations.
Ann Duffield
Senior 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.
…

[2018] AATA 5496

12 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Reliance

Natural Justice

Procedural Fairness