Jashtehvand (Migration)

[2023] AATA 3457

Jashtehvand (Migration) [2023] AATA 3457 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Majid Jashtehvand

VISA APPLICANT:  Miss Maryam Jashtehvand

CASE NUMBER:  2100424

HOME AFFAIRS REFERENCE(S):          2019002381

MEMBER:Jennifer Cripps Watts

DATE:6 October 2023

PLACE OF DECISION:  Canberra

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 6 October 2023 at 5:19pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependency – over 18 at time of application – reliant on sponsor for financial support – regular and substantial remittances – now over 25 – continuing full-time study interrupted by periods of care for mother and brother – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(b), Schedule 2, cls 101.211, 101.213(1), 101.221

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 30 November 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 June 2019. 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 applicant is the daughter of the review applicant.

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211 of Schedule 2 to the Regulations.

4. The delegate refused to grant the visa on the basis that cl 101.211 was not met because the applicant was found not to be wholly or substantially dependent on her father, the review applicant who is an Australian citizen, to meet her basic needs for food, clothing and shelter.

5. The review applicant appeared before the Tribunal on 6 October 2023 to give evidence and present arguments.  He is self-represented and brought a support person to the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the ‘dependent child’ (as it is defined in reg 1.03 of the Regulations) criteria in cl 101.211 and cl 101.221. 

   Dependent child criteria

8. 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).

9. The visa application was made when the applicant was 23 years of age and refused, in November 2020, when she was 24 years of age.  Applicants for a subclass 101 child visa may be exempted from the age requirements if they are dependent and incapacitated for work due to total or partial loss of mental or bodily functions.  The applicant is, at the time of this decision, now 27 years of age and there is no information or evidence before the Tribunal, nor has any claim been made by the review applicant, that his daughter is incapacitated for work due to the loss of bodily or mental functions.

10. The Tribunal is, however, satisfied that the applicant is not married or engaged or working full time.

11. With reference to the applicant’s study history as it is included in the visa application made in February 2019 and other evidence provided to the Department and Tribunal, in summary the applicant has completed or is engaged in the following courses of study:

    a.March to June 2013  Noandish Aria Institute

    Pharmacist Degree

    b.October 2014 to October 2016          University of Applied Sciences

    Associate Diploma

    c.18 February 2017  University of Applied Science

    English Language General Translation

    d.October 2020  `          University of Applied Sciences

    English language translation

    Ministry of Science

    Pharmacology

    e.From 2021 - ongoing  Studying law at university in Tehran

12. In 2020, the applicant studied online during the COVID-19 pandemic.  A translated copy of a confirmation of enrolment, dated 19 January 2021, certifying the applicant’s enrolment as a full-time student in a Bachelor’s Degree Program in the field of Law includes that she was admitted in the 2020 academic year at Islamic Azad University, Shahriar Branch is on the Department file.  At the Tribunal hearing, the sponsor gave oral evidence that the applicant continues to study the course at the time of this decision.

13. Any gaps in the applicant’s full-time study since she left school are explained as being because of ‘complex family issues’ and the COVID-19 pandemic. The applicant, her brother and mother live together in Tehran.  The applicant’s brother is about 16 years of age now and was diagnosed, some years ago, with autism. The applicant, during a significant period of time when her mother was suffering depression, has been the primary carer for her brother and responsible for the household more generally. 

    Time of application:  cl 101.211(1)(a)

14. 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 reg 1.03 of the Regulations, which is extracted in the attachment to this decision.  At the time of application, where an applicant has turned 18, they must not be engaged to be married or have a partner; must not be engaged in full-time work; and, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, must have been undertaking a full-time course leading to the award of a professional, trade, or vocational qualification.

15. 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 (reg 1.05A(1)(b).

16. The Tribunal, with regard to the applicant’s circumstances where she has had substantial caring responsibilities for her brother who has autism, and her mother, and for the household they share, is satisfied that the applicant has not engaged in full-time work; that she is not married and does not have a partner; and that the applicant is, and has been for a substantial period immediately before the time of application (and time of decision), wholly or substantially reliant on her father for financial support to meet her basic needs for food, clothing and shelter; and that the applicant has no reliance on another person and no other source of financial support.

17. The applicant claims to have completed the equivalent of year 12 in September 2012 and to have commenced studying a pharmacist degree in March 2013.  At the applicant’s telephone interview November 2020, the applicant gave some responses to questions that were asked that were noted by the delegate in the primary decision record as being inconsistent with this study history. The Tribunal has regard to evidence as to the reason why she gave inconsistent information about her claim to be engaged in full time study in November 2020.  The phone interview was on 20 November 2020 and the confirmation of enrolment in a Bachelor of Law was provided to the Department three days later.  The Tribunal is satisfied with the applicant’s explanation that she meant she was waiting for her offer to come through, which it did, three days later. 

18. The review applicant provided the Tribunal with a document from Fact Exchange, a registered and licensed business that provides remittance services, mainly between Australia and Iran, confirming that the sponsor has used their remittance services since 23 June 2016 to send money to ‘his daughter’, the applicant, which has been directly deposited into her bank account (account number for Bank Sepah provided).  The statement includes that details of the transactions are available on request.

19. Relevant to the issue of the financial support the sponsor provides to the applicant, there are two non-disclosure certificates (NDC) on the Department file, issued under s 375A and s 376 of the Act.  Copies were given to the sponsor at the Tribunal hearing.  One refers to a ‘Client of Interest Note’ on the Department file relating to the transfer overseas of $171,000. 

20. The sponsor was asked some questions about money he sends to his family overseas and gave oral evidence, prior to the Tribunal informing him as to the information in the folios that are specified in the NDCs, that he has been sending money to his (now) ex-wife and children since 2013.  He was asked how much he estimated he might have sent and said the amounts vary but that it would be quite a lot because he has been their sole source of financial support for 10 years.  The applicant was asked whether the amount could be as high as $170,000 over that period and he responded that it could have been.  The Tribunal does not consider the information that is the subject of the NDC’s to be adverse information and is of the view that its obligations under s 359A or s 359AA of the Regulations to be engaged.

21. On the evidence, which includes documentary evidence of the review applicant’s remittances to his daughter in Iran, of around $170,000, the Tribunal accepts that the applicant is dependent on her father. 

22. Therefore, on the basis of the above, the Tribunal finds that the applicant is a ‘dependent child’ of the sponsor (her father, who is an eligible person) at the time of application.  The applicant is no longer a ‘dependent child’ at the time of decision because she has turned 18.

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

    Applicant under 25 or incapacitated for work

24. 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, was incapacitated for work due to the total or partial loss of bodily or mental functions: cl 101.211(1)(b), (2).

25. The visa application was made in June 2019.  At the time of application, the applicant who was born in April 1996, had not turned 25.  The criterion is not met at the time of decision, but only because the applicant has now turned 25.

26. Accordingly, cl 101.211(1)(b) is met at the time of application, and is not required to be met at the time of decision.

    Child-parent relationship

27. 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).

28. The applicant is the child (as defined in reg 1.03) of an ‘eligible person’ (her father).  Accordingly, cl 101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

    Conclusion

29. For the reasons above, the criteria in cl 101.211 and cl 101.221(2)(a) are met.

    Criteria for applicants over 18

30. If, at the time of application, the visa applicant has turned 18, they need 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

31. There is no information before the Tribunal that indicates the applicant was engaged to be married, or that she had a spouse or de facto partner at the time of application (cl 101.213(1)(a), or that that does not continue to be the case at the time of this decision:  cl 101.221(2)(b).

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

    Not engaged in full-time work

33. 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).

34. In the applicant’s circumstances, including that she is studying full time and has significant responsibilities to her family at home, the Tribunal is satisfied that the applicant was not engaged in full time work at the time of application and that this continues to be the case at the time of decision.

35. 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)

36. 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).

37. 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 has looked at the time period from the commencement of the applicant’s study until the time of decision and, on the basis of the study she has undertaken and her current enrolment, is satisfied as a whole, that the applicant has been undertaking relevant study.

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

    DECISION

39. 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

    Jennifer Cripps Watts
    Senior 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.

    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.

    …