Danao (Migration)

[2018] AATA 738

Danao (Migration) [2018] AATA 738 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Joseph Danao

VISA APPLICANTS:  Miss Jeziel F Danao
Mr Joemar Danao

CASE NUMBER:  1717029

DIBP REFERENCE(S):  2015/032821

MEMBER:Kira Raif

DATE:15 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 15 March 2018 at 10:53am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Whether applicants are financially reliant on the sponsor – Limited evidence of reliance – Requirement to be undertaking studies leading to a qualification – Applicants not undertaking studies leading to qualifications

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

CASES
Huynh v MIMA [2006] FCAFC 122
Sok v MIMIA [2005] FMCA 190

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 1 June 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of the Philippines. They applied to the Department of Immigration for the visas on 13 November 2015. They were sponsored in the applications by their father. The delegate refused to grant the visas on the basis that cl.101.213 was not met because the delegate was not satisfied the visa applicants met the study requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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. 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 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.

7. 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].

8. Further, at the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

9. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

   Dependency

10. With respect to dependence, the review applicant told the Tribunal that the children live with their mother and have lived with their mother since birth. He said they live in a house owned by his ex-wife and he contributes to the cost of maintenance and mainly pays the bills. The review applicant stated that the house is in a squatters area and he believes it is a government property that is given to the poor, so they did not have to buy the house but they still have to pay for electricity and water and other daily expenses. The review applicant said he mainly pays these bills but his ex-wife also pays.

11. The review applicant told the Tribunal that his ex-wife runs a small pig farm and earns about 25,000 pesos (around $600) a quarter and her money is used for personal expenses and to support her mother. He sends $300 or $500 a fortnight or a month and the amounts are not regular. The review applicant said has been sending money since he came to Australia in 2005 but he did not keep the paperwork.

12. Ultimately, while the Tribunal accepts that the review applicant has been providing financial support to the visa applicants, there is no evidence that the money sent by the review applicant to his children is being used for food, shelter and clothing. The review applicant said that he has no involvement, and no control over the money of his ex-wife. He said that she may buy clothes or food or pay electricity with her funds and he cannot know what she does with her funds. That is, there is no way to determine whether it is the applicant’s money or the ex-wife’s money that is being used to meet the children’s financial needs for food, shelter and clothing. In such circumstances, the Tribunal is not satisfied that the children’s reliance on their father for financial support to meet their basic needs is greater than their reliance on any other source (their mother).

13. The Tribunal is not satisfied that at the time of the application and at the time of this decision, the two visa applicants have been wholly or substantially reliant on their father for financial support to meet their basic needs for food, clothing and shelter. The Tribunal is not satisfied the children’s reliance on their father is greater than their reliance on any other person, or source of support, for financial support to meet the basic needs for food, clothing and shelter. There is no evidence that the children are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Tribunal is not satisfied that the children were dependent children at the time of the application and at the time of this decision. The visa applicants do not meet cl. 101.211 and cl. 101.221.

    Study requirements

14. There is evidence before the Tribunal concerning the visa applicant’s past study and the review applicant provided to the Tribunal an explanation about their past study and the breaks in their study. The delegate formed the view that both visa applicants had periods when they were not studying which were not reasonable periods and the parties provided an explanation why the visa applicants could not engage in study in these periods.

15. The Tribunal does not need to determine the period of past study because the review applicant’s evidence to the Tribunal is that the children are no longer engaged in any formal study. He said both have completed their courses and are now doing self-study and his daughter is doing some research at home. The review applicant concedes that the children are not engaged in any formal full-time study.

16. The Tribunal finds that at the time of this decision, the visa applicants are not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal is not satisfied the visa applicants meet cl. 101.221.

17. There is no suggestion that the visa applicants are adopted children of the sponsor, who is their biological father. The Tribunal is not satisfied the visa applicants meet cl. 102.211. The children live with their mother and there is no evidence of her incapacity. The Tribunal is not satisfied that the visa applicants (who were over 18 at the time of the application) cannot be cared for by their parents and they are not orphan relatives of the sponsor. The visa applicants do not meet cl. 117.211.

    Conclusion

18. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

19. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member