Kaewsawang (Migration) - [2022] AATA 105

Kaewsawang (Migration) [2022] AATA 105 (7 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kittituch Kaewsawang
REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)
CASE NUMBER:  2008224
HOME AFFAIRS REFERENCE(S):          CLF2019/11374
MEMBER:SM Justin Owen
DATE:7 January 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 07 January 2022 at 4:47pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian permanent resident – substantial period – applicant employed – accommodation provided by the sponsor’s former partner – greater reliance upon the applicant’s own finances than upon the sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.216, 802.221, 802.226; rr 1.03, 1.05
CASES
Al Naqi v MIAC [2007] FMCA 874
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
Vo v Minister for Home Affairs [2019] FCAFC 108
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 April 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s. 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a 24-year old Thai national that applied for the visa on 7 March 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).
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 (cls. 802.216 and 802.226A), the criteria to be met in this case include cl. 802.212.
The delegate refused to grant the visa on the basis that cl. 802.212 was not met because the delegate was not satisfied that the applicant had been wholly or substantially reliant on the sponsor, his mother Ms Pattanit Kammamoon, for financial support to meet his basic needs for food, clothing and shelter for a substantial period immediately before the time of application; and subsequently did not meet the definition of ‘dependent’ as per reg. 1.05A(1)(a). The delegate also noted that the applicant had not provided any evidence of incapacity, and therefore did not meet reg. 1.05A(1)(b). As the applicant did not meet the definition of dependent, as per reg. 1.05A, and subsequently did not meet the definition of ‘dependent child’ in reg. 1.03, the delegate found they were not satisfied the applicant met cl. 802.212.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaewsawang (Migration)

Details

AGLC: Kaewsawang (Migration) [2022] AATA 105
Case: [2022] AATA 105
Decision Date: 7 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, Subclass 802. The applicant was sponsored by their mother, who held an Australian permanent resident visa. The core dispute revolved around whether the applicant, aged 21 at the time of application, met the definition of a "dependent child" as required for the visa subclass.

The Tribunal was required to determine if the applicant qualified as a "dependent child" under regulation 1.03 of the Migration Regulations 1994, specifically in relation to clause 802.212(1)(a) of the Migration Act 1994. This involved assessing whether the applicant was reliant on their sponsor for financial support to meet basic needs, and if that reliance was greater than reliance on any other person or source, or if the applicant was incapacitated for work due to loss of bodily or mental functions.

The Tribunal found that the applicant did not meet the criteria for a dependent child. The applicant was in gainful employment, and had been for a significant period, including prior to lodging the application. There was no claim or evidence presented to suggest the applicant was incapacitated for work due to loss of bodily or mental functions. Furthermore, the Tribunal noted that the applicant's accommodation was provided by the sponsor's former partner, indicating a greater reliance on the applicant's own finances than on the sponsor. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the visa applicant is a dependent child of an Australian citizen; the holder of a permanent visa; or an eligible New Zealand citizen. Dependent child criteria 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 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. 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]. At the time of application, the applicant was 21 years of age. He was sponsored by his mother, an Australian permanent resident. The Tribunal has subsequently considered whether he meets the definition of a ‘dependent child’ as defined in reg. 1.03 of the Regulations for the purposes of cl. 802.212(1)(a). The definition of ‘dependent’ as it applies to this application is set out in reg. 1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their sponsor, if at the relevant time the applicant was wholly or substantially reliant on their sponsor for financial support to meet their basic needs for food, clothing and shelter; and their reliance on their sponsor was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their sponsor is due to the total or partial loss of their bodily or mental functions: reg. 1.05A(1). There is no claim before the Tribunal that the applicant is wholly or substantially reliant on the sponsor for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions (reg 1.05A(1)(b)). At the hearing the applicant responded in the negative as to whether he had any mental or physical incapacities that precluded him from working. The sponsor concurred. He is currently in gainful employment and has been previously for a significant period, including during the period prior to lodging his application. The applicant therefore does not meet the definition of dependent as per reg. 1.05A(1)(b) and the definition of ‘dependent child’ under reg. 1.03(b)(ii). Accordingly, cl. 802.212(1)(b) is not met at the time of application, and does not continue to be met at the time of decision.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Justin OwenSenior MemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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.…

Ratio Decidendi

Legal Principle Established

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