Katongo (Migration)

[2024] AATA 650

Katongo (Migration) [2024] AATA 650 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chisenga Gander Katongo

VISA APPLICANT:  Mr Abdul Aziz Elias

CASE NUMBER:  2217487

HOME AFFAIRS REFERENCE(S):          F2018/030759

MEMBER:SM Michael Cooke

DATE:8 March 2024

PLACE OF DECISION:  Sydney

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 08 March 2024 at 9:13am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – under 18 years of age at time of application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 101.211, 101.213, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122

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 19 September 2022 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 13 March 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).

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.

4. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the applicant was not dependent on his sponsor. The delegate found that the applicant was over 18 at time of application. However, the delegate was incorrect. The decision record details that clearly, he was under 18 years of age - by two days.

5. The review applicant appeared before the Tribunal on 7 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife.

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 at time of application the visa applicant (the applicant) was a ‘dependent child’ of his sponsoring father.

   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).

   Dependent child

9. 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.

10. 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].

11. At time of application the applicant was under 18 years of age. His date of birth is 15 March 2000. His date of application was 13 March 2018.

12. The Tribunal finds that an applicant for a child visa who is under 18 years is a ‘dependent child’ merely by fact of their age and does not require consideration of whether they are also ‘dependent’ within the meaning of reg 1.05A. Where an applicant was under 18 at the time of application they are also assessed at time of decision as if still under the age of 18, regardless of whether they have since turned 18.  The issue of whether an applicant is ‘dependent’ within the meaning of that term in reg 1.05A, therefore, only arises for an applicant who is over 18 at time of application. 

13. 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. The Tribunal finds from the evidence before it (see delegate’s decision record) that the applicant’s age at time of application was 17 years old. At time of decision, the applicant has not turned 25.

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 Tribunal finds on the evidence before it that at the time of application and decision, that the visa applicant is a child of an eligible person being his father who is an Australian citizen. Accordingly, cl 101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

    Conclusion about dependent child criteria

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

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

    DECISION

21. 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.

    Michael Cooke
    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.

    …