Fernando (Migration) - [2022] AATA 2569

Fernando (Migration) [2022] AATA 2569 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jordan Imanuel Fernando
REPRESENTATIVE:  Mr Duong (MARN: 0215067)
CASE NUMBER:  2011463
HOME AFFAIRS REFERENCE(S):          CLF2020/596
MEMBER:Moira Brophy
DATE:2 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 02 May 2022 at 9:22am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adopted child – dependent child of the sponsor – not holder of substantive visa at time of visa application – section 48(1A) applies – time of application criteria – whether became dependent child since last visa application – compassionate circumstances of hardship and distress – unfair or unreasonable result – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 48, 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 802.211, 802.212
CASES
Huynh v MIMA [2006] FCAFC 122
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 June 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 30 December 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 (the Regulations). Relevantly, one of the criteria to be met in this case is cl.802.211 which applies to applicants to whom s48 of the Act applies, and requires that, since last applying for a substantive visa, the applicant has become a dependent child of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. Section 48 of the Act applies to an applicant who does not hold a substantive visa at time of lodgement of the application, and who has had a visa refused or cancelled since their last entry into Australia.
The delegate refused to grant the visa on the basis that cl.802.211 was not met because the delegate was not satisfied that the applicant had become a dependent child of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen since he last applied for a substantive visa on 3 April 2014 as he is considered to have been a dependent child of the sponsor since he arrived in Australia on 6 February 2014.
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…

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 Fernando (Migration)

Details

AGLC: Fernando (Migration) [2022] AATA 2569
Case: [2022] AATA 2569
Decision Date: 2 May 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Child (Residence) (Class BT) visa, subclass 802. The applicant, Jordan Imanuel Fernando, an adopted child, sought to have the refusal decision affirmed by the Tribunal. The sponsor, Ms Eleni Makineth Fernando, is an Australian citizen and the applicant's adoptive mother. The applicant had previously applied for a Child (subclass 802) visa on 3 April 2014, which was refused on 12 November 2014. At the time of the current application, the applicant did not hold a substantive visa, his previous visa having ceased on 10 December 2014.

The primary legal issues before the Tribunal were whether section 48 of the Migration Act 1958 (Cth) applied to the applicant, and if so, whether he had become a dependent child of the sponsor since his last substantive visa application, thereby satisfying the criteria under regulation 802.211 of the Migration Regulations 1994 (Cth). The Tribunal was required to consider the definition of a "dependent child" and the timing of when that dependency must arise in relation to the applicant's last visa application.

The Tribunal reasoned that section 48(1A) of the Migration Act applied to the applicant because he did not hold a substantive visa at the time of his current application and had previously had a visa application refused after his last entry into Australia. Consequently, the applicant was required to satisfy regulation 802.211, which mandates that a person to whom section 48 applies must have become a dependent child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen *since* their last substantive visa application. The delegate had found that the applicant did not meet this criterion because he was considered to have been a dependent child of his sponsor mother since his arrival in Australia in February 2014, and his sponsor had been an Australian citizen since 1997. Therefore, the applicant had not *become* a dependent child since his last visa application on 3 April 2014.

The Tribunal concluded that the decision under review should be affirmed. The applicant failed to satisfy the requirement under regulation 802.211 that he must have become a dependent child of an Australian citizen since his last substantive visa application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Since this application was refused, the applicant had not departed Australia and he no longer held a visa at the time of lodgement of this application, his previous visa having ceased on 10 December 2014.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is a person affected by s48 of the Migration Act and if so, has become a dependent child of the sponsor since last applying for a substantive visa, and meets cl.802.211.The relevant provisions of the Migration Act and Regulations are as follows:802.211 (Criteria to be satisfied at time of application)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.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 applicant was not holder of a substantive visa at the time the present visa application was made. Therefore s48(1A) applies to him as he did not hold a substantive visa and, after last entering Australia, he was refused a visa for which an application had been made on his behalf, as a minor, being the application for Child (subclass 802) visa made on 3 April 2014. As the applicant is a person to whom s48 of the Act applies, he is required to meet time of application criteria cl.802.211, which requires that since last applying for a substantive visa he has become a dependent child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen. The delegate found that the applicant did not meet this criterion because he is considered to have been a 'dependent child' of his sponsor mother since he arrived in Australia on 6 February 2014, given the sponsor acquired Australian citizenship on 25 February 1997, the applicant has not become the dependent child of an Australian citizen since he last applied for a substantive visa on 3 April 2014.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant Jordan Imanuel Fernando was born in Tonga on 20 July 2012. He was adopted by the sponsor, Ms Eleni Makineth Fernando and her husband in Tonga on the 28 November 2013. The sponsor is an Australian citizen. She lives with her husband and they have seven sons including the visa applicant who is their youngest child. The applicant came to Australia on 6 February 2014. On the 3 April 2014, the applicant applied for a Child (subclass 802) visa, the application was refused on the 12 November 2014. At the time this application for a Child (subclass 802) visa was lodged, the applicant held a Tourist visa (FA-600) which ceased on the 6 May 2014, the applicant was also granted a Bridging Visa (subclass WA 010) visa. This visa ceased on 10 December 2014. The application lodged on 3 April 2014 was refused because the delegate found the sponsor and her husband had not resided overseas for more than 12 months prior to the adoption taking place and he did not find there were compassionate or compelling circumstances to waive the requirement. Since this application was refused, the applicant had not departed Australia and he no longer held a visa at the time of lodgement of this application, his previous visa having ceased on 10 December 2014.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is a person affected by s48 of the Migration Act and if so, has become a dependent child of the sponsor since last applying for a substantive visa, and meets cl.802.211.The relevant provisions of the Migration Act and Regulations are as follows:802.211 (Criteria to be satisfied at time of application)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.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.

Ratio Decidendi

Legal Principle Established

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