Custodio (Migration) - [2022] AATA 919

Custodio (Migration) [2022] AATA 919 (1 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Alvin Christian Custodio
REPRESENTATIVE:  Mr Martin Udall (MARN: 0746812)
CASE NUMBER:  2015163
HOME AFFAIRS REFERENCE(S):          CLF2019/35838
MEMBER:Maxina Martellotta
DATE:1 April 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 01 April 2022 at 1:53pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – study requirements – gaps in full-time studies – applicant’s mother provided funds for his support – bank transfers – wholly or substantially reliant – financial hardship – reasonable time – conditions of the bridging visa – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.05
CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIAC [2007] FCA 413
Sok v MIMIA [2005] FMCA 190
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 23 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 September 2019. 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 (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 (1) (a), 802.214 and 802.221 (2) (a).
The delegate refused to grant the visa on the basis that 802.212 (1) (a), 802.214 and 802.221 (2) (a) were not met because the applicant at the time of application and at the time of decision had not met the requirement that he was dependant in accordance with regulation 1.05A(1) and as such did not satisfy the definition of dependant child as specified in regulation 1.03(b). Further that the applicant did not demonstrate that at the time of application he met the study requirements of 802.214(1)(c).
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Mrs Quency.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also…

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.

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Details

AGLC: Custodio (Migration) [2022] AATA 919
Case: [2022] AATA 919
Decision Date: 1 April 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, specifically Subclass 802. The applicant sought to establish that he was a dependent child of an Australian relative and satisfied the relevant study requirements. The decision under review was made by the Migration Review Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for being a "dependent child" as defined by the Migration Regulations 1994, and if so, whether he also satisfied the study requirements for the visa. The definition of "dependent child" under regulation 1.03 and the broader concept of "dependent" under regulation 1.05A were central to the determination.

The Tribunal considered the applicant's evidence regarding his financial reliance on his mother. It noted that the definition of dependency under regulation 1.05A requires the applicant to be wholly or substantially reliant on the other person for financial support to meet basic needs, and that this reliance must be greater than reliance on any other source. The Tribunal found that while the applicant's mother provided significant financial support, including funds transferred to his grandparents for his upbringing and direct deposits into his Australian bank account, the evidence did not establish that he was wholly or substantially reliant on her to the exclusion of other potential sources of support, particularly in light of funds from the sale of a family home being deposited into his account. The Tribunal concluded that the applicant did not meet the criteria for being a dependent child.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicant meets the dependent child criteria and if so does he also satisfy the study requirements?Dependent child criteria 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 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 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 term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44]. According to his visa application the applicant claimed that his mother was and continues to provide him with financial support. This includes the period he was living in the Philippines and since he has been in Australia. He stated that prior to coming to Australia he lived with his paternal grandparents who took care of him by using money provided by his mother. The applicant provided the following evidence relevant to his dependency status at hearing:a)His mother left the Philippines when he was a baby. His mother worked in Australia and would come back once or twice a year to visit. His paternal grandparents took care of him until he moved to Australia with his mother in 2019.b)He lived at a property which belonged to his mother with his grandparents and his sister. His father did not live with them or take care of him as he had another family in a different city. He did not have much to do with his father. He did not think his father gave his grandparents any money for his support as he is unemployed.c)His grandparents took care of his day to day needs. They lived in his mother’s house as his mother had a close relationship with his paternal grandparents. His grandparents also have their own home (where other members of the family live) but the arrangement was that they would stay in his mother’s house when caring for the applicant and his sister. d)His mother did not owe any money on the house which she had bought with her own funds. His mother financially supported him when he lived with his grandparents. His mother transferred funds to his grandparents on a monthly basis and they would use those funds to pay for food, schooling costs, clothing and other everyday living expenses. If he needed extra items, he would ask his mother and she would send money to his grandparents or would deposit money into his bank account when he was old enough to have an account.e)After arriving in Australia he lived with his mother and her (now ex) partner). Her partner and she separated in December 2019. His mother is employed as a carer. She met the cost of the rent and other day to day household costs for the applicant. The applicant did not pay for any of these costs and is reliant upon his mother. When he needs something, he asks his mother.f)After the separation the applicant and his mother and sister moved to another area and his mother rented a property. They continue to live in that property and his mother meets the accommodation costs.g)From July 2019 he has operated an Australian bank account. This is the account into which his mother deposits money into which he can use for his own expenses or when he needs to do the household grocery shopping.h)His mother sold the family home in the Philippines in late 2019 after everyone had left and his grandparents moved back to their own home. Those funds were deposited into his bank account. He does not know why his mother had the money deposited into his bank account, but his mother accesses the funds in his account.i)His mother purchased a car in December 2019 using money from his account. He does not have a driver’s licence. This was because she needed a car following the separation.j)Some cash deposits were made into his account, but he cannot recall where they came from.k)He does not have any source of income and is wholly dependent upon his mother to meet his day to day costs of living.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Maxina MartellottaMemberATTACHMENT – 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.…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.…

Ratio Decidendi

Legal Principle Established

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