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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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 to give evidence and present arguments.

6. The review applicant gave evidence to the Tribunal at a telephone hearing on 20 July 2020. The Tribunal also received oral evidence by telephone from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

8. 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.

9. 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

10. 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.

11. 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).

12. 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

13. At the time of application, the visa applicant must not have turned 25.

14. 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).

15. 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.

16. 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

17. 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).

18. 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.

19. The visa applicant claims to be the child of the review applicant who is an Australian citizen. As mentioned above at para [14], the visa applicant provided a copy of her Birth Certificate to the Department. The Certificate records the review applicant as the visa applicant's mother. Based on this information, the Tribunal is satisfied that at the time of application, the visa applicant is the child of the review applicant.

20. Records obtained by the Department provide that the review applicant acquired Australian citizenship on 2 March 2017. Based on this information, the Tribunal is satisfied that the review applicant is an Australian citizen for the purposes of cl.101.211.

21. Accordingly, cl.101.211 (1)(c) is met at the time of application and continues to be met at the time of decision.

    Criteria for applicants over 18

22. As the visa applicant had at the time of application turned 18, she needs to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Relationship status and history

23. At the time of application, the visa applicant must not be engaged to be married and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

24. The Tribunal has reviewed the information and evidence on the files of the Department and the Tribunal and has considered the evidence given at the time of hearing. In the absence of any evidence to the contrary, the Tribunal is satisfied that the visa applicant is not engaged to be married or has ever had a spouse or de facto partner.

25. Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

26. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

27. The visa applicant told the Tribunal she has done some work experience in her father’s office but that has been intermittent unpaid work.

28. The Tribunal is satisfied that the visa applicant is not engaged in full-time work.

29. Accordingly, cl.101.213(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

30. 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).

31. 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]-[16]. In determining what is a 'reasonable time' for cl.101.213(1)(c), 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 [19]. 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).

32. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

33. The visa applicant claims to have completed her higher secondary schooling in June 2014. The Tribunal accepts that the visa applicant completed her higher secondary schooling in June 2014. The Tribunal has considered whether the visa applicant's higher secondary schooling is the equivalent of year 12 in the Australian school system.

34. The Tribunal is satisfied that the visa applicant's higher secondary schooling is the equivalent of year 12 in the Australian school system because it entitled the visa applicant to admission into university to undertake an undergraduate degree.

35. The visa applicant told the Tribunal that she is currently enrolled in a Bachelor of English Literature at the Lebanese University in Tripoli. The Tribunal has received written information issued by the University which confirms that the visa applicant has since October 2014 been enrolled in full-time studies. The Tribunal is satisfied on this evidence that the visa applicant has since the time of application on 11 October 2017 been actively engaged in her undergraduate degree.

36. The Tribunal has considered whether the visa applicant's current course of study will lead to the award of a professional, trade or vocational qualification. The Tribunal has reviewed the Australian Commonwealth Register of Institutions and Courses for Overseas Students. The Tribunal has identified from that Register similar undergraduate courses as being offered by Australian universities that appear to be the equivalent of the course currently being undertaken by the visa applicant. Based on this information, the Tribunal is satisfied that the visa applicant's current course of study will lead to the award of a professional, trade or vocational qualification.

37. Accordingly, cl.101.213(1)(c) is met and continues to be met at the time of decision.

    Is the visa applicant a dependent child of the review applicant?

38. 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, which is extracted in the attachment to this decision.

39. Essentially, a person is “dependent” on another person if at the relevant time the 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 persons basic needs for food, clothing and shelter and the reliance on the other person is greater than any reliance on any other person, or source of support for financial support or the person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to total or partial loss of the first person’s bodily or mental functions.

40. The Tribunal accepts the oral evidence provided at the hearing that the review applicant has been providing financial support to the vis applicant since December 2019 when she moved to live with the sister of the review applicant. Prior to that time, she had lived with her father, but he wished to reunite with his wife and she and the visa applicant did not get along. The Tribunal accepts from the bank statements provided that since that time the review applicant has sent money to the visa applicant each month. When the Tribunal considers the evidence as to the amount of rent the visa applicant is required to pay to her aunt and the cost of her basic needs by way of food, clothing and transportation  the Tribunal accepts that although the visa applicant has continued to receive monies from her father she has been substantially reliant on the review applicant for her basic needs. However, r.105A requires that the visa applicant must be wholly or substantially reliant upon the review applicant at the relevant time and for a substantial period immediately before the relevant time. In this case the relevant time includes the time of decision.

41. There is no definition in the Regulations of what constitutes a ‘substantial period’, but in the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period (Huang v MIMA [2007] FMCA 720). Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months. In Zeng v MIMIA [2005] FMCA 546 the following factors were identified as relevant to the consideration of whether the dependence was for a “substantial period”:

    ·  the actual period of dependence;

    ·  the reason for the dependence; and

    ·  the extent or nature of the dependence.

42. The Tribunal has had regard to the Departmental policy in this case.

43. At the time of hearing the review applicant told of her financial support for her daughter since the time she came to Australia in 2012 and especially since the delegate’s decision in June 2018. The Tribunal accepts this evidence and finds she has provided support for her both financially and emotionally for a substantial period i.e. period of at least twelve months prior to the application being lodged on 11 October 2017. The review applicant told the Tribunal of the deterioration in the domestic circumstances where the applicant had previously lived. She told of having to move her daughter out of the home she was living in with her father and stepmother and of having to find emergency accommodation for her at the home of her sister.

44. The Tribunal is therefore satisfied that the visa applicant has been wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter for a substantial period immediately before the application. It is satisfied the visa applicant’s reliance on this financial support is greater than her reliance on any other person or source of support.

45. Therefore, the Tribunal is satisfied that the visa applicant is dependent on the review applicant within the meaning of r.1.05A.

46. For the reasons above the Tribunal is satisfied the visa applicant satisfies the requirements of cl. 101.211 and cl. 101.221.

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

    DECISION

48. 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 Brophy
    Member