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

1. 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).

2. 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).

3. 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.

4. 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.

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 applicant appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mrs Eleni Makineti Fernando. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

9. 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.

10. 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.

11. 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.

12. 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.

13. 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

14. 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

15. 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

16. 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.

17. 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].

18. 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.

19. 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.

20. 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.

21. The Tribunal has independently considered this clause. In the Tribunal's view, the criterion establishes a window of time in which the applicant needs to have 'become' a dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. The window of time starts when they last applied for a substantive visa (in this case 3 April 2014) and ends when they applied for the Subclass 802 visa that is under consideration (in this case, 30 December 2019). The requirement is a composite one, focused on both the relationship between the applicant and another person (i.e. whether they are a dependent child), and on that other person's immigration status (i.e. whether they are an Australian citizen, holder of a permanent visa or eligible New Zealand citizen).

22. In the present case, it is not in dispute the applicant is the adopted child of the sponsor and therefore he comes within the meaning of 'child of a person' in s5CA. It is also not in dispute that the sponsor acquired Australian citizenship on 25 February 1997. Therefore, on the facts before it, the requirements of the child relationship and the other person's residency status were both met prior to the relevant window of time.

23. The Tribunal is satisfied on the evidence given at the hearing that since the applicant arrived in Australia on 6 February 2014 the sponsor has met the costs of the applicant’s housing, education, food, and medical costs. Her evidence which the Tribunal accepts is that after the applicant was born, he was in the care of her mother and sister in Tonga until formal orders for his adoption could be obtained. The sponsor said that she sent $400 each month to Tonga to meet the applicant’s needs.

24. The Tribunal finds the applicant has been the dependent child of the sponsor since he arrived in Australia on 6 February 2014.

25. As there does not appear to have been any relevant change in circumstances during the relevant period, the applicant does not appear to meet these criteria because they cannot be said to have 'become' a dependent child of the sponsor during the relevant period.

26. For the reasons above, the criteria in cl.802.211 is not met.

    Ministerial intervention

27. The applicant is a 10-year-old minor who came to Australia on 6 February 2014 following his adoption by his sponsor on 28 November 2013. The applicant has been living here continuously with his Australian citizen mother, father and five brothers. He is regarded as an integral part of the family unit. This period of eight years are formative years in the span of his young life.

28. The reasons for the previous refusal of the visa application were outside the applicant's control as he is a minor. The applicant's mother told the Tribunal she decided to adopt Jordan prior to his birth. His biological mother was the sister of her husband and was not able to provide a home for him. While the sponsor already had five sons, she did not consider there to be an alternative. From the time he was born she has treated him as her son. Her husband and other sons have treated him in the same way. It is the only family the applicant had known. The husband of the sponsor has faced major health challenges since 2015 and he has been unable to work since that time. The older sons have taken on the responsibility of ensuring the material needs of the family are met. When considering the implications if the applicant is required to return to Tonga to lodge a fresh application the Tribunal considered the impact on both the applicant and the sponsor who was not able to leave her husband for any period of time. Along with the obvious issues imposed by the global pandemic, which are continuing, relating to travel restrictions going into and out of Australia, the Tribunal considered these may be relevant to a consideration of whether there are sufficiently strong compassionate circumstances of hardship and distress to the applicant's Australian citizen close family members of the decision to refuse the application in the present case and require the minor applicant to return overseas only to relodge fresh Child visa applications from offshore. The Tribunal considers it may also be relevant to consider whether the application of the legislation in this case leads to an unfair or unreasonable result, and the feasibility and purpose of requiring the applicant to travel offshore to relodge a Child visa application in the context of an ongoing global pandemic and travel restrictions. The Tribunal accepts that the applicant would be unable to care for himself if he has to depart Australia. The Tribunal also accepts that the departure of the applicant from Australia will have a significant negative impact on the Australian citizen sponsor and other family members.

29. However, the Tribunal is unable to take these circumstances into account in assessing whether the applicant meets the essential criteria for the grant of the visa.

30. Having regard to the applicant's circumstances, in particular the matters referred to above, and having considered the ministerial guidelines relating to the Minister's discretionary power under s 351, set out in the Department's Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister's attention.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Moira Brophy
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     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.

    …

    Schedule 2, Part 802

    …

    802.213(1)    If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

    (a)was under 18 when the adoption took place; and

    (b)meets the requirements of subclause (2), (3), (4) or (5).

    (2)The applicant meets the requirements of this subclause if the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate is in force in relation to the adoption.

    (3)The applicant meets the requirements of this subclause if the adoptive parent was not an Australian citizen, holder of a permanent visa or New Zealand citizen when the adoption took place, but subsequently became an Australian citizen, holder of a permanent visa or New Zealand citizen.

    (4)The applicant meets the requirements of this subclause if:

    (a)the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b)before the adoption, a competent authority in Australia approved the adoptive parent as a suitable adoptive parent, or the adoptive parent and the adoptive parent's spouse or de facto partner as suitable adoptive parents, for the applicant.

    (5)The applicant meets the requirements of this subclause if:

    (a)the applicant was adopted in an overseas country and the adoptive parent was, when the adoption took place, an Australian citizen, holder of a permanent visa or New Zealand citizen; and

    (b)either:

    (i)when the adoption took place, the adoptive parent had been residing overseas for more than 12 months; or

    (ii)the Minister is satisfied that, because of compelling or compassionate circumstances, subparagraph (i) should not apply to the applicant; and

    (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

    (d)the adoptive parent has, or the adoptive parent and the adoptive parent's spouse or de facto partner have, lawfully acquired full and permanent parental rights by the adoption.