El Daye (Migration) - [2020] AATA 5655

El Daye (Migration) [2020] AATA 5655 (11 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Lamia El Daye
VISA APPLICANT:  Ms Rola Said
CASE NUMBER:  1820275
HOME AFFAIRS REFERENCE(S):          2017007960 OSF2017/007960
MEMBER:Moira Brophy
DATE:11 December 2020
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.101.221 of Schedule 2 to the Regulations.

Statement made on 11 December 2020 at 3:30pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child of the sponsor – age requirement – child-parent relationship – relationship status and history – not engaged in full-time work – full-time study – current course of study – Bachelor of English Literature – wholly or substantially reliant on the review applicant ‘for a substantial period immediately before the relevant time’ – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 101.211, 101.213, 101.221
CASES
Huang v MIMA [2007] FMCA 720
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Zeng v MIMIA [2005] FMCA 546

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 4 June 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 11 October 2017. 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).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211(1) of the Migration Regulations which requires the applicant to meet the definition of dependent contained in regulation 1.05A(1) of the Regulations.
The delegate refused to grant the visa on the basis that cl.101.211(1) was not met because the applicant was not the dependent child of the sponsor.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity…

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.

Continue reading El Daye (Migration)

Details

AGLC: El Daye (Migration) [2020] AATA 5655
Case: [2020] AATA 5655
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 101 (Child) visa. The review applicant, Ms Lamia El Daye, an Australian citizen, sought to sponsor her daughter, Ms Rola Said, for the visa. The Administrative Appeals Tribunal was required to determine whether the visa applicant met the criteria for a dependent child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen, as well as additional criteria applicable to a child who had turned 18 at the time of application.

The Tribunal was tasked with assessing whether the visa applicant was a 'dependent child' under clause 101.211(a) of the Regulations, and whether she met the further requirements of clause 101.221 concerning applicants who have turned 18. These provisions generally require the applicant to be under 25 years of age, or incapacitated for work, and to maintain a relevant child-parent relationship, with these criteria needing to continue to be met at the time of the decision, or only not met because the applicant has turned 25. The Tribunal considered documentary evidence, including the visa applicant's birth certificate, and oral evidence from both the review applicant and the visa applicant.

The Tribunal found that the visa applicant, born on 27 March 1996, had turned 18 at the time of application. Consequently, clause 101.211(1)(b) was satisfied at the time of application and continued to be met at the time of decision, as per clause 101.221(2)(a)(i). However, the Tribunal noted that there was no evidence presented to establish that the visa applicant was an adopted child or a specific type of step-child of the review applicant, as required by clause 101.211(1)(c).

Given these findings, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria under clauses 101.211 and 101.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant Ms Rola Said was born in Tripoli, Lebanon in 1996. Her parents are Ms Lamia El Daye (the review applicant) and Mr Hasan Youssef Said. Her parents divorced in 2001. At the time of application, the applicant was living in Tripoli with her father, her stepmother and her half-brother. The review applicant is an Australian citizen. She was granted citizenship on 2 March 2017. She arrived in Australia on 25 February 2012 sponsored on a subclass 309 visa by her then partner. The visa applicant is the only child of the review applicant. The review applicant is in receipt of a Centrelink payment and lives alone in social housing.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the question for the Tribunal to determine is whether at the time of application, the visa applicant is a 'dependent child' of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.101.211 (a), and whether the visa applicant meets the additional criteria in respect of a child who has turned 18 at the time of application. 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). In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing by the review applicant and visa applicant. The Tribunal has also considered the information received after the hearing. Age requirement At the time of application, the visa applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2). Applicants who turned 18 at the time of application, must continue to satisfy the dependent child time of application criterion and not have turned 25, or if they do not satisfy that criterion, it is only because they have since turned 25: cl.101.221(2)(a)(ii). The visa applicant claims to have been born on 27 March 1996. The visa applicant provided the Department with a copy of her Birth Certificate. Relevantly, the Certificate provides that the visa applicant was born on 27 March 1996. Based on this information, the Tribunal is satisfied that the visa applicant had at the time of application turned 18. Accordingly, cl.101.211 (1)(b) is met at the time of application and continues to be met at the time of decision: cl.101.221(2)(a)(i).Child-parent relationship At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

Evidence

Evidence Before The Court

The review applicant is an Australian citizen. She was granted citizenship on 2 March 2017. She arrived in Australia on 25 February 2012 sponsored on a subclass 309 visa by her then partner. The visa applicant is the only child of the review applicant. The review applicant is in receipt of a Centrelink payment and lives alone in social housing.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the question for the Tribunal to determine is whether at the time of application, the visa applicant is a 'dependent child' of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.101.211 (a), and whether the visa applicant meets the additional criteria in respect of a child who has turned 18 at the time of application. 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). In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing by the review applicant and visa applicant. The Tribunal has also considered the information received after the hearing. Age requirement At the time of application, the visa applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2). Applicants who turned 18 at the time of application, must continue to satisfy the dependent child time of application criterion and not have turned 25, or if they do not satisfy that criterion, it is only because they have since turned 25: cl.101.221(2)(a)(ii). The visa applicant claims to have been born on 27 March 1996. The visa applicant provided the Department with a copy of her Birth Certificate. Relevantly, the Certificate provides that the visa applicant was born on 27 March 1996. Based on this information, the Tribunal is satisfied that the visa applicant had at the time of application turned 18. Accordingly, cl.101.211 (1)(b) is met at the time of application and continues to be met at the time of decision: cl.101.221(2)(a)(i).Child-parent relationship At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c). There is no evidence at the time of application that the visa applicant is an adopted child or a specific kind of stepchild of the review applicant.

Decision

Reasons for decision

Given the findings above, the appropriate course 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 (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.101.221 of Schedule 2 to the Regulations.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.