Karanja (Migration)

[2022] AATA 1626

Karanja (Migration) [2022] AATA 1626 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Peter Gathungu Karanja

VISA APPLICANT:  Miss Sandra Nyambura Gathungu

CASE NUMBER:  1921884

HOME AFFAIRS REFERENCE(S):          2018011139

MEMBER:Christine Kannis

DATE:1 March 2022

PLACE OF DECISION:  Perth

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 01 March 2022 at 3:38pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – visa applicant was under 18 years of age at the time of application – visa applicant is the natural and biological child of the review applicant – DNA report provided –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 101.211, 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 28 June 2019 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 10 December 2018. 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 criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The visa was refused on the basis that cl.101.211 and cl.101.221 were not met because the delegate was not satisfied that the visa applicant is the biological child or step-child of the review applicant. 

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. 

8. The issue in this case is whether visa applicant meets the dependent child criteria at the time of application and at the time of decision.

   Dependent child criteria

9. 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).

   Dependent child

10. 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. 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.

11. The review applicant is the holder of a permanent visa.

12. The evidence before the Tribunal includes a Certificate of Birth dated 25 April 2007 issued by the Republic of Kenya in the visa applicant’s name and a passport issued by the Republic of Kenya in the visa applicant’s name. Both documents show the visa applicant’s date of birth as 13 February 2007. This means that she was 11 years of age at the time of application. There is no evidence to suggest that the visa applicant is engaged or partnered. The Tribunal finds that the visa applicant was under 18 years of age at the time of application and was a dependent child as defined in reg.1.03(a).

13. The visa applicant is now 15 years of age and the Tribunal finds that she is a dependent child at the time of this decision. 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

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

15. As the visa applicant was under the age of 25 at the time of application, she meets cl.101.211(1)(b). As noted, the applicant is currently 15 years of age.

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

    Child-parent relationship

17. 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).

18. The visa applicant’s Certificate of Birth identifies the review applicant, Peter Gathungi Karanja as her father. The delegate decided that the Certificate of Birth  and additional documentation provided were not sufficient to establish that the review applicant is the visa applicant’s biological father.

19. The Tribunal requested the review applicant undergo DNA testing.  DNA testing has verified that the visa applicant is the biological child of the review applicant[1], the holder of a permanent visa.

    [1] DNA Diagnostics Center results report dated 28 February 2022.

20. On the basis of the DNA test results, the Tribunal is satisfied that the visa applicant is the child of the review applicant. Accordingly, cl 101.211(1)(c) is met at the time of application and continues to be met at the time of decision.  

21. The Tribunal has found that the visa applicant meets the cumulative requirements of cl.101.211(1)(a), cl.101.211(1)(b) and cl.101.211(1)(c), and therefore she meets cl.101.211 in its entirety.

22. For the reasons above, the criteria in cl.101.211 and cl.101.221(1) are 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 (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.

    Christine Kannis
    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.

    …