Johnny (Migration)

[2024] AATA 1531

Johnny (Migration) [2024] AATA 1531 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Fchacana Pamela Johnny

REPRESENTATIVE:  Ms Kathy Liu (MARN: 0958014)

CASE NUMBER:  2310317

HOME AFFAIRS REFERENCE(S):          BCC2022/498794

MEMBER:Kira Raif

DATE:28 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2024 at 8:36am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant became a dependent child since the last substantive visa application – Order of Adoption – visa application sent by post delayed – no substantive visa at the time of visa application – best interests of the child – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 65, 351, 501
Migration Regulations 1994, Schedule 2, cls 802.211, 802.216, 802.226

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 3 July 2023 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 is a national of Samoa, born in February 2019. She applied for the visa on 28 February 2022. The delegate refused to grant the visa on the basis that cl 802.211 was not met because the applicant was subject to the operation of s. 48 of the Act and the delegate was not satisfied that she became a dependent child since her last application for a substantive visa was made. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 May 2024 to give evidence and present arguments. Given the applicant’s young age, the sponsor gave evidence on behalf of the applicant. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. 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).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 802.211.

   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.

   Primary decision

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  when making the application, the applicant claimed to be an adopted child of Pamela Jane Theresa Johnny. The application was accompanied by an Order of Adoption issued by the Family Court of Samoa, indicating that on 29 May 2019 the court granted the adoption of Fchacana Malio to Pamela Jane Theresa Johnny and her husband Misa Tisma Johnny.

7. The primary decision record indicates that the applicant had previously applied for an Adoption (Subclass 102) visa on 10 July 2019. That application was refused in November 2021. It is noted that the applicant was not a holder of a substantive visa at the time she made the application for the Child visa on 28 February 2022. A letter accompanying the application indicated that the applicant’s Visitor visa was to expire on 27 February 2022.

8. The delegate referred to the requirement that the applicant, who was not a holder of a substantive visa when the application was made, must have become a dependent child of the sponsor since her previous application was made in July 2019. The delegate noted that since the visa applicant was under the age of 18, she was considered to be a dependent child of the sponsor since her adoption in May 2019 and she was thus a dependent child when the first Adoption visa application was made, she did not become and adopted child since that application was made.

9. In February 2023 the delegate wrote to the applicant seeking comments on the above information. In response, the applicant confirmed that she held a Visitor visa which expired on 27 February 2022. The applicant stated that she posted her visa application on 22 February and had no control over the delivery time, which in this case was delayed due to Covid. The applicant referred to the Departmental policy which indicated that applications received by mail should be considered as being received the previous working day, which in this case would be prior to the expiry of her Visitor visa. However, when making the decision the delegate noted that this rule was already applied because the application was date-stamped on 1 March 2022 and hence the lodgement date was considered to be the previous business day, 28 February 2022, which was consistent with the information provided by the Australia Post.

   Evidence before the Tribunal and disposition

10. The information in the primary decision record indicates that the visa applicant had previously made another visa application in July 2019 and that application was refused in November 2021. There is no evidence that the applicant had departed Australia since that decision was made.

11. In oral evidence to the Tribunal the sponsor stated that the visa application was posted on 22 February and they had no control over the delivery time by the Australia Post. The Tribunal accepts that evidence.

12. Information in the primary decision record indicates that that the applicant’s substantive visa ceased on 27 February 2022. The application for the visa was not made until 28 February 2022 (the delegate notes that the usual practice of determining the date of receipt as a day prior to postal delivery was applied in this case). The Tribunal acknowledges the applicant’s evidence that she posted the application a few days earlier, that there were delays with postal deliveries due to Covid and that she had no control over these matters, however, the Tribunal does not consider that there is any discretion to either extend the period of operation of the earlier visa, or to deem earlier receipt of the application on the basis of such considerations.

13. The Tribunal finds that the application was received by the Department on 28 February and that the applicant’s substantive visa ceased on 27 February 2022. The Tribunal finds that  the applicant was not the holder of a substantive visa at the time the application was made. The Tribunal thus finds that the applicant is a person to whom section 48 applies.

14. Clause 802.211(b) relevantly requires the applicant to have become a dependent child of an Australian citizen or permanent resident since last applying for the substantive visa. However, as the applicant is under the age of 18, she would be considered a dependent child of her parents since the adoption took place in May 2019. She did not become a dependent child of an Australian citizen or a holder of a permanent visa or an eligible New Zealand citizen since last applying for the substantive visa. The Tribunal is not satisfied the applicant meets cl. 802.211.

15. The applicant’s adoptive parent is considered to be her mother. The Tribunal is thus not satisfied that the applicant cannot be cared for by her parents because each of them is deceased, incapacitated or of unknown whereabouts. The Tribunal is not satisfied the applicant meets the requirements for the grant of the Orphan Relative visa.

16. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The sponsor stated that the child has been in her care since the age of 7 months and has nowhere to go. She does not know any other parents and does not presently have a passport to travel overseas. The Tribunal accepts, for the purpose of this review, that the child has been in the care of her adoptive parents since the young age and that  she requires such care, due to her young age. The Tribunal is of the view that separation of the young child from her parents would not be in her best interests.

17. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

18. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

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

    Kira Raif
    Senior Member