Kidd (Migration)

[2021] AATA 562

Kidd (Migration) [2021] AATA 562 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Imogen Rose Emilia Kidd

CASE NUMBER:  2017856

HOME AFFAIRS REFERENCE(S):          CLF2020/882

MEMBER:Russell Matheson

DATE:25 January 2021

PLACE OF DECISION:  Sydney

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:

·Regulation 1.20KB.

Statement made on 25 January 2021 at 6:22pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – approved sponsorship – sponsorship limitation – evidence of charge or conviction – police check – UAE Criminal Clearance Certificates – Singapore Certificate of Clearances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.20KB; Schedule 2, cls 802.215, 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 8 December 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 8 January 2020. 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.802.226 because the sponsorship in cl.802.215 had not been approved.

4. The applicant seeks review of the delegate’s decision.

5. No hearing was held in this case as the Tribunal was able to make a favourable determination on the materials before it in accordance with 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 the present case the visa application is not supported by a letter of support from a State or Territory government welfare authority and therefore the applicant does not meet cl.802.215(a) and must meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person.  At the time of decision, this sponsorship must have been approved and still be in force: cl.802.226.

8. Regulation 1.20KB limits the Minister’s discretion to approve sponsorships. Regulation 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

9. 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

10. Sub-regulations 1.20KB (11) and (12) say:

    Evidence of charge or conviction

    (11)      To determine whether a sponsor, or the spouse or de facto partner of a sponsor, has been charged with, or convicted of, a registrable offence, the Minister may request the sponsor, or the spouse or de facto partner of the sponsor, to provide a police check from:

    (a)      a jurisdiction in Australia specified in the request; or

    (b)      a country, specified in the request, in which the sponsor or the spouse or de facto partner has lived for a period, or a total period, of at least 12 months.

    (12)     In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:

    (a)      the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

    (b)      the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.

    Application details

11. In the present case the application for the visa included the applicant’s birth certificate, which stated that her date of birth is 14 March 2018. This information confirmed that the applicant is under 18 years of age. Accordingly, the applicant was under 18 years of age at the time of application.

12. The applicant is sponsored by her father, Jonathan Michael Chalmers KIDD. Departmental records show that the sponsor has spent more than 12 months in Australia in the last 10 years.

13. In response to question 34 of the Form 40CH - Sponsorship for a child to migrate to Australia, the sponsor advised that he had lived in the following countries for a cumulative period of 12 months or more, over the last 10 years:

    ·United Arab Emirates;

    ·Singapore; and

    ·Australia.

14. At question 37 of the Form 40CH, the sponsor advised he is in a partner relationship with Claire Anne KIDD (applicant’s mother).

15. In response to question 52 of the Form 40CH, the sponsor advised his spouse had lived in the following countries for a cumulative period of 12 months or more, over the last 10 years

    ·United Arab Emirates;

    ·Singapore; and

    ·Australia.

16. The Form 956 – Advice by a registered migration agent/exempt person of providing immigration assistance authorised the migration agent, Johanna B, to be the nominated recipient only for the applicant.

17. On 01 July 2020, the Department wrote to the sponsor and sponsor’s spouse via their nominated e-mail address as stated in the Form 40CH and requested the following documents to be provided within 28 days (the prescribed period):

    ·An Australian Federal Police (AFP) clearance certificate for both parents; and

    ·Police clearance from each country where both parents have lived for a total of 122 months or more in the last 10 years (calculated accumulatively).

18. On 13 August 2020, the Department wrote to the sponsor and sponsor’s spouse again, and requested the following documents to be provided within 28 days (the prescribed period):

    ·A new Australian Federal Police (AFP) clearance certificate for both parents; and

    ·Police clearance from each country where both parents have lived for a total of 122 months or more in the last 10 years (calculated accumulatively).

19. On 17 August 2020, the migration agent for the applicant, Johanna B, advised the Department that the sponsor and sponsor’s spouse were having difficulties obtaining fingerprints for the Singaporean police certificates.

20. The Department advised the migration agent that the requested items were still outstanding on 02 October 2020.

21. At the time of the delegates decision on 8 December 2020 the police certificates from the United Arab Emirates for the sponsor and sponsor’s spouse (applicant’s parents), and the police certificate from Singapore for the sponsor’s spouse, had not been received by the Department.

22. UAE Criminal Clearance Certificates dated 21 June 2020 for the sponsor and 29 June 2020 for the sponsor’s partner have now been provided. The certificates state that there are no criminal antecedents for the sponsor and the sponsor’s partner. The parties also provided Singapore Certificate of Clearances dated 12 November 2020 for the sponsor and the sponsor’s partner indicating they have no criminal record.

23. Accordingly, the requirements in r.1.20KB are met.

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

    DECISION

25. 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:

    ·            Regulation 1.20KB

    Russell Matheson
    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.

…