Ianuari (Migration)

[2018] AATA 4549

Ianuari (Migration) [2018] AATA 4549 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emanuel Joseph Ianuari

CASE NUMBER:  1613160

DIBP REFERENCE(S):  CLF2016/30057

MEMBER:John Billings

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 August 2018 at 11:33 am (VIC time)

DATE OF WRITTEN RECORD:                13 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2018 at 9:58am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – under 25 at time of application – residing with his father and step-mother in Australia  – question of dependency – change in circumstances – financial documents – lost or mislaid – credible witness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2 cls 802.212, 802.214, 802.221

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 August 2016 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 11 August 2016, to refuse to grant the applicant a Child (Residence) (Class BT) visa, under section 65 of the Migration Act.

4. The applicant, Mr Ianuari, applied for the visa on 17 May 2016.  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.

5. The criteria are set out in part 802, of Schedule 2, to the Migration Regulations. There is no letter of support from a State or Territory government welfare authority. The criteria to be met in this case include clauses 802.212, 802.214 and 802.221.

6. Clauses 802.212 and 802.221 concern whether the applicant was, at the time of application, and is at the time of decision, the dependant child of a person who is an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen.

7. Clauses 802.214 and 802.221, concern the visa applicant’s relationship status and history. 

8. The delegate refused to grant the visa on the basis that she was not satisfied that Mr Ianuari was the dependant child of a relevant person.  The delegate therefore found that he did not meet the requirements of clause 802.212.  Mr Ianuari applied for review on 19 August 2016.  He provided a copy of the primary decision to the Tribunal.   

9. Mr Ianuari appeared before the Tribunal on 22 August 2018, to give evidence and present arguments.  The Tribunal also received oral evidence from his step-mother, Ms Susan Ianu and from Ms Jaimee Brown.  Mr Ianuari was represented in relation to the review by Ms Ianu.

10. Mr Ianuari is a 25-year-old national of Samoa.  He made short trips to Australia, beginning in December 2009, December 2012 and a longer trip commencing in November 2013.  Mr Ianuari has been in Australia since 4 December 2015, when he arrived holding a Visitor (Class FA) visa.  He was granted a further Visitor visa on 15 January 2016. 

11. Mr Ianuari has been residing with his father and step-mother in Australia.  He was aged 23 years at the day he applied for the Child visa.  He was previously studying in Samoa.  His biological mother, four brothers and one sister, are in Samoa.  His biological mother is not employed and has not been employed at material times.

12. Mr Ianuari submitted documents to the Department and to the Tribunal relating to his studies and to the financial support provided to him by his father and step-mother.  There are said to be many more documents relating to the financial support that have been lost, mislaid or destroyed or faded to the point of becoming illegible.

13. In response to the hearing invitation that was recently issued, Mr Ianuari said that he wished the Tribunal to take evidence from Ms Brown, who is described there as his fiancé.  The hearing response goes on to say that he and she had been in a steady relationship since March 2015 (he meant to say March 2016) and that they were engaged on 14 September 2017.  The Tribunal was told that that date was also Ms Brown’s birthday.  The Tribunal heard that Mr Ianuari and Ms Brown actually met in December 2015, within a fortnight of Mr Ianuari arriving in Australia.  Marriage plans have been put on hold, pending the outcome of the present application.

14. Whereas the issue for the delegate really concerned the question of dependency, Mr Ianuari’s change in circumstances means that the issue for the Tribunal is his relationship status and history. 

15. I mention that the change in circumstances were advised to the Tribunal by Ms Ianu in February of this year.  That was prior to the constitution of the matter in July. 

16. For applicants for Child visas, who are aged 18 years or over, there are particular requirements that must be met at the time of the visa application and at the time of the decision.  Most relevantly, at the time of application, the applicant must not be engaged to be married and must not have or ever have had, a spouse or de factor partner.  That is in clause 802.214(1)(a).  Clause 802.221(2)(b) provides that this must continue to be the case at the time of this decision.

17. I make a comment about the credibility of witnesses.  I found all those who gave evidence to the Tribunal to be impressive witnesses and I accept the evidence that they gave the Tribunal to be credible and reliable evidence. 

18. What the evidence does show in relation to the relationship between Mr Ianuari and Ms Brown however is that he has been engaged to her since September 2017.  That state of affairs, while of course a very happy one in personal terms for the couple, has the unhappy outcome that Mr Ianuari now cannot satisfy clause 802.221(2)(b).

19. The consequence of that is that the relevant time of decision criterion for the visa is not met.  The consequence of that, then, is that the criteria for the grant of a Subclass 802 visa are not met. 

20. There have been no claims advanced in respect of the other visa subclass in Child (Residence) (Class BT), subclass 837.

    DECISION

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

    John Billings
    Senior Member