Javier (Migration)

[2021] AATA 4196

Javier (Migration) [2021] AATA 4196 (21 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kyla Javier

CASE NUMBER:  2007033

HOME AFFAIRS REFERENCE(S):          CLF2019/6476

MEMBER:Meredith Jackson

DATE:21 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.212 of Schedule 2 to the Regulations; and

·cl.802.221 of Schedule 2 to the Regulations.

Statement made on 21 October 2021 at 2:00pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – financial support while applicant in home country and Australia – currently enrolled in full-time education – consent of father – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 802.212(1)(a), 802.221(1)

CASE
Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 March 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 February 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). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212, which requires that the applicant is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen.

4. The delegate refused to grant the visa on the basis that cl.802.212 was not met because the applicant had not demonstrated that she met the definition of being a dependent child of a person as defined. The delegate had requested that the applicant provide a variety of documents in support of the application, including her birth certificate, paternal identity and consent, and the applicant did not respond. The delegate found the applicant did not meet the definition of ‘child of a person’ under section 5CA and did not meet the definition of ‘dependent child’ under regulation 1.03 and the visa was refused on that basis.

5. The applicant appeared before the Tribunal on 12 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and sponsor, Janice Javier Graham. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

6. The applicant was represented in relation to the review by her registered migration agent Marimi Tarag of Bridges Immigration in Caulfield, Victoria.

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

   Background

8. The visa applicant is Kyla Javier, aged 18, a resident of the Philippines. At the time of the visa application, she was aged 15 years. She arrived in Australia on 7 November 2018 on a visitor visa. The applicant claims she had been living with her biological father and grandmother in the Philippines; her mother having migrated to Australia in 2017 as the partner of Don Carlos Graham. The applicant is now 18 years of age and has been onshore for close to three years and she is completing her high school education. She is currently the holder of a Bridging visa.

9. The review applicant is Janice Javier Graham, aged 36, a permanent resident of Australia who arrived onshore on 17 October 2015. Ms Graham was married to Australian Don Carlos Graham on 30 June 2012 and was granted a Partner visa on 11 October 2017. Ms Graham has declared that the applicant is her natural child and has provided evidence that she herself was aged 17 at the time the applicant was born out of wedlock. The applicant’s birth certificate, provided to the Tribunal, states that the applicant’s father is Joven Benemerito Dizon, a resident of the Philippines. The sponsor has four other children in Australia.

   ISSUES AND LAW

10. The issues in the present case are whether the applicant, at the time of the application, was the dependent child of the sponsor (cl.802.212); and, continues to meet the criteria at the time of this decision because, while she has turned 18 at the time of this decision, she is dependent on the sponsor for her basic needs (cl.802.221).

    Dependent child criteria

11. 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.

12. 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 r.1.03 of the Regulations, which is extracted in the attachment to this decision. 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. 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).

13. 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].

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is the applicant a dependent child of the sponsor?

14. Kyla Javier was born in the Philippines in 2003. She has provided a Certificate of Live Birth from the Philippines to that effect, which records her mother as Janice N. Javier and her father as Joven B. Dizon of the Philippines. It states that each of the parents was 17 at the time of the birth.

15. At the time of application, the applicant was a 15 year-old school student living with her mother and sponsor, Janice Javier Graham in Australia, having arrived on a visitor visa on 7 November 2018.

16. On review, the applicant claims that while she turned 18 in 2021, she remains wholly dependent on her mother and sponsor Janice Javier Graham, in that she has no other form of income and is reliant on the sponsor for financial support to meet the basic needs of food, clothing and shelter.

17. The applicant has provided evidence that she is in currently enrolled in a full-time course of education. She has provided a letter from Julie Peel, the Principal, stating that on 22 March 2021, Ms Javier was a student of the school studying a full time program in English as an Additional Language. The applicant has also provided a letter from the Principal of Yeronga State High School dated 7 July 2021, incorporating a photograph of the applicant and student identity details, which states that Ms Javier became enrolled at that school on 13 July 2021. The applicant has declared that she remains there and has approval to study at Yeronga SHS until such time as she is granted permanent residency. She stated at the hearing that when she completes secondary studies, she wants to be a nurse. She intends to enrol in TAFE as soon as she can.

18. The applicant gave oral evidence that she undertakes no paid work and receives no employment income; therefore she claims to be entirely reliant on her mother to pay all her expenses. In a post-hearing submission, the applicant provided statements extracted from an NAB bank account in her name, showing transactions between 7 November 2020 and 8 October 2021. The transactions are entirely comprised of small debit and credit amounts ranging from $0.50 to $100, and the statements show closing balances between $0.59 and $50.34. The Tribunal is satisfied on the evidence that the account reflects transfers between the applicant and her sponsor. The applicant also submitted evidence of 28 transfers of funds from Don Carlos Graham, the sponsor’s partner, to Erlinda Manita Javier in the Philippines over a period from 1 January 2017 to 4 October 2018, the latter being the month prior to the applicant’s arrival in Australia. The sponsor has claimed that these sums were for the support of the applicant’s basic needs while living with her grandmother.

19. The Tribunal has considered the evidence before it, including the documents submitted and the oral testimony of the applicant and sponsor, and is satisfied the applicant was a dependent child of an eligible person, as defined, at the time of application. At the time of review, the applicant has turned 18 but not 25. The Tribunal is satisfied that the applicant is wholly or substantially reliant on the eligible person, her mother, at the time of this decision for the support of the applicant’s basic needs, and has no other means of support and meets the definition of dependent child of an eligible person as defined in r.1.03 of the Regulations. There is no evidence before the Tribunal that the applicant is engaged to be married or has a spouse or de facto partner or has ever had a spouse or de facto partner. The applicant is not engaged in full-time work.

20. As the applicant is a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen, she meets the requirements of  cl.802.212(1)(a). The applicant has turned 18 at the time of this decision and does not continue to satisfy c.802.212, but only because she has turned 18 (cl.802.221(1)).

    Consent to grant an Australia visa to a child under 18

21. For completeness, the Tribunal raised with the applicant in the hearing that she had not provided to the Department, or the Tribunal with her application for review on 13 April 2020 (when she was aged 17), a completed Form 1229 providing consent to grant an Australian visa to a child under the age of 18 years, signed by her biological father. The Tribunal noted this had been specifically asked for in the Department’s letter of 27 November 2019. The applicant’s representative stated that a submission to the Tribunal had been intended and it had not been provided, this was an oversight. After the hearing, the applicant provided a copy of a Form 1229, signed by the applicant’s father, Joven Dizon on 8 March 2020. The applicant also provided certified evidence of Mr Dizon’s Filipino professional driver’s licence as identification and confirmation of his signature. On the evidence, the consent of the applicant’s biological father Joven Dizon to the visa grant was provided in 2020, when the applicant was aged 16.

22. Having considered all the evidence and for the reasons above, the Tribunal finds that cl.802.212(1)(a) is met at the time of application and cl.802.221(1) is met at the time of decision. Accordingly, cl.802.212 is met and cl.802.221 is met.

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

    DECISION

24. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.212 of Schedule 2 to the Regulations; and

    ·cl.802.221 of Schedule 2 to the Regulations.

    Meredith Jackson
    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.

    …