Latu (Migration)

[2024] AATA 3132

Latu (Migration) [2024] AATA 3132 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Laino Paea I Salt Lake Latu

REPRESENTATIVE:  Mr Joseph Italiano (MARN: 9902423)

CASE NUMBER:  2014937

HOME AFFAIRS REFERENCE(S):          CLF2020/43319

MEMBER:Meena Sripathy

DATE:29 August 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 29 August 2024 at 3:36pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 18 years – dependent child of an Australian sponsor – sponsor’s court order – sole parental responsibility – no adoption orders – death of the applicant’s mother – lengthy period in Australia – impact on the family – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 65, 351, 417
Migration Regulations 1994, Schedule 2, cls 802.212, 802.216, 802.226; rr 1.03, 1.05, 1.14

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 17 September 2020 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 applied for the visa on 14 August 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 (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 802.212.

4. The delegate refused to grant the visa on the basis that cl 802.212(1) or (1A) was not met because the applicant is not a ‘dependent child’ or a ‘step child’ within the specific meanings of those terms, given that he had turned 18 years old at the time of application.

5. The applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Edward Brown and the applicant’s sister, Victorine ‘Ofa Ki Phillipne Latu. 

6. The applicant was represented in relation to the review however the representative did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant applied for the Subclass 802 Child visa on 14 August 2020 on the basis of being the dependent child of the sponsor, Edward John Brown.  Edward John Brown is named in the application as his step-parent, alongside the names of his biological parents.  Included in the application was a copy of the applicant’s birth certificate, which stated his mother is Akosita Latu and father is Talitaufa Latu. The applicant’s date of birth is 25 March 2002, making him 18 years of age at the time the application was lodged.

9. In the Form 40CH – Sponsorship for a child to migrate to Australia, at question 14, the sponsor advised that the applicant is his step-child. At question 16, the sponsor advised the applicant is not the child of his current partner. In Part G, the sponsor advised that he has a court order giving him sole legal right to determine where the child shall live or the right to permanently remove the child from the country. At question 31 details are provided of another step-child, Victorine Ofa Ki Phillipine Latu (born in 2004) who is dependent on him. 

10. The following documents were included with the application: sponsor’s current Australian passport; applicant’s mother’s death certificate indicating her death on 27 September 2019; copy of an interim and final Australian court order giving the sponsor sole parental responsibility for the applicant dated 25 November 2019 (interim) and 24 February 2020 (final).

11. An affidavit dated 1 November 2019 by Edward John Brown sets out the background circumstances of the application. He states that he met the applicant’s mother approximately six years earlier. She told him she had fled a situation of severe domestic violence in Tonga and did not wish to return to her former partner, and father of her children. The applicant, his mother and sister moved in with Mr Brown and he began supporting them, including with accommodation, school and food.  The applicant’s father contacted the mother just before her death and indicated he was visiting Australia and wanted to see the children. The mother died suddenly on the weekend that the children were to meet their father. The father indicated he wanted to take them back to Tonga. The children were devastated and terrified by this and had no wish to go with him there. The father has returned to Tonga. He has had no contact with the children since he left. Prior to the mother’s death they had plans to apply for permanent residency for the mother and children. Since her death he sought immigration advice and understood they could apply for Child visas if he had court orders in respect of parental responsibilities for the children and for this reason, he seeks those orders. He indicates his intention to continue to support the children and provide accommodation for them.  He is financially secure, owns his own home and is employed.

12. The issue in this case is whether the applicant meets clause 802.212.

    802.212 (Criteria to be satisfied at time of application)

    (1) The applicant:

    (a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and

    (b) subject to subclause (2), has not turned 25.

    (1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the
    applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

    (2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the
    application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

    Regulation 1.03 provides the definition of step-child:

    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.

    Tribunal hearing

13. At the hearing the Tribunal explained the issues arising in the matter, and its preliminary view that cl.802.212(1)(a) and (1A) cannot be met, on the basis that there is no evidence the applicant can meet the definition of child in subparagraph (1) because there is no evidence of adoption orders, or step-child in subparagraph (1A) because the applicant is over 18 years.  The Tribunal also explained that it has considered whether the applicant can meet the criteria for the alternative subclass in the class BT, being  Subclass 837 Orphan Relative. However, the definition of orphan relative in r.1.14 requires the applicant to be under 18 years, among other requirements, and therefore he does not appear to meet this.  It invited his comments or response to these issues. 

14. The applicant indicated he understood this and had nothing further to add on his eligibility to meet the criteria.  He said everything he knows is in Australia and he cannot live elsewhere.  

15. The Tribunal explained that if the decision of the Tribunal is to affirm the refusal, which it must do if he cannot meet the criteria, he can seek ministerial intervention under s351, which gives the Minister power to substitute a decision of the Tribunal.  It understands, from his representative, that he wants the Tribunal to consider referring the matter for consideration under this power.  The applicant confirmed this.

16. The applicant told the Tribunal he lives in Euston, NSW with the sponsor and his sister. He has lived here since his mother met the sponsor in 2014.  Prior to this they lived with an uncle in Robinvale for around 3 years and before that with another uncle in Melbourne for around one year. Apart from these two uncles he has other family, including cousins around the Robinvale area. As far as he knows most of his mother’s family are in Australia or New Zealand and he has no close relatives on his mother’s side in Tonga.

17. The applicant said he is not working or studying at this time. He studied until year 8 level but stopped after that because of his lack of visa status. 

18. Mr Brown told the Tribunal that soon after he met the applicant’s mother, and learned of their visa status he has been in contact with the Department and sought advice and was in the process of making an application for his mother and the children. The Tribunal noted that there is no information before it to indicate the commencement of a partner visa application. He was not sure what stage it was at and whether an application had been lodged. Their mother died suddenly, of an aneurysm. It has devastated them all and since then the family has been in shock.  The father was here at that time and threatened to take the children back to Tonga. They did not want to go.  He engaged a family law solicitor and the process to obtain the family law orders was started. 

19. The applicant told the Tribunal, since coming to Australia, he only saw his father once at the funeral of his mother.  He has had no contact with him before that or since then.  He understands from his mother that she left Tonga because he was abusive towards her. The applicant understands his father has left Australia. He has not been in contact with him since he left.

20. The Tribunal asked the applicant why he cannot return to Tonga.  He said he has no family connections there. He has been here since he was 7 years old, and his sister was 5 years old. He only knows life here.  He feels safe here. He wants to support his family, including his sister and stepfather who has been so good to him. His sister now has permanent residency, and she is able to get on with her life.  He wants to be able to do the same.  He wants to be able to work and support his sister.  His stepfather is over 70 years old and should be retiring but he is working to support him. He feels like a burden to his family.  His whole life is here. His sister is here. His mother is buried here.

21. Victorine told the Tribunal that she and her brother have found it very difficult to navigate their life without their mum, after her sudden death. The refusal of her brother’s visa has made this even harder.  The toll on the family is great and she does not want her brother to be sent back to Tonga. She explained she was granted a permanent visa which she applied for at the same time as the applicant. She was able to finish her schooling and is now working full time as an allied health employee at the hospital and studying for a Certificate IV in Allied Health. 

    CONSIDERATION

22. The Tribunal has considered the information and evidence before it and finds the applicant’s mother is deceased and therefore he is not the child of the current partner of the sponsor. He was 18 years at the time of application, therefore he does not meet the requirements of the definition of step child in subparagraph (b) of the definition in r.1.03, despite the Family Law Act 1975 court order dated 24 February 2020 which gave the sponsor sole parental responsibility for him. There is no evidence before it to support a finding that the applicant is otherwise a child of the sponsor, within the meaning of the terms dependent child and child, for the purposes of cl.802.212(1).

23. Accordingly, neither cl 802.212(1)(a) nor cl 802.212(1A) is met at the time of application.

24. For the reasons above, the criteria in cl 802.212 are not met.

25. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. As the applicant had turned 18 years at the time of application, he also cannot meet the definition of orphan relative in r.1.14 for the purposes of the criteria for Subclass 837, being the other visa subclass in Class BT.

    Request for Ministerial intervention referral

26. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act 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.

27. The Tribunal took evidence from the applicant, sponsor and the applicant’s sister about their background and circumstances, as set out above.  The Tribunal found the applicant and witnesses to be credible, honest and compelling in their description of the impact of recent events in their lives and their circumstances.  On the basis of their oral evidence and documents before it, the Tribunal makes the following findings.  The applicant has been living in Australia continuously since the age of 7 years, having been brought here by his mother with his younger sister, who was 5 years old at the time.  He is now 22 years. In September 2019, at the age of 17, their mother died suddenly of an aneurysm. The applicant told the Tribunal he had no contact with his biological father since he has been in Australia.  He was aware that his father was coming to Australia and had arranged to see him and his sister, but as it transpired his visit coincided with the unfortunate event of his mother’s death.  The applicant said he only saw his father once and this was at his mother’s funeral.  The applicant’s biological father has since returned to Tonga and the evidence of the applicant and Mr Brown is that he has had no contact with him since. 

28. The Tribunal accepts on the evidence of Mr Edward Brown’s Affidavit dated 1 November 2019, deposed in the context of the application for Family Law Act court orders, and the applicant and his sister’s oral evidence before the Tribunal, that the applicant and his sister have been supported practically, financially and emotionally by Mr Edward Brown over the past 10 years.

29. It accepts that the applicant has been living in Australia for the formative years of his young life, being 15 out of his 22 years, and has formed close and significant bond with Mr Brown, an Australian citizen who has taken on a parental role for him and his sister and supported them for a substantial period prior to and since the tragic sudden death of their mother. 

30. The applicant’s sister, who also applied for a Child visa sponsored by Mr Brown, at the same time as the applicant, was granted a Subclass 802 Child visa on 22 October 2020 as she was still under the age of 18 at the time the application was made.  She is now gainfully employed and engaged in post-secondary study.  She told the Tribunal she relies heavily on the applicant, her only brother, for emotional and psychological support.  The Tribunal accepts that the impact of her brother being forced to depart Australia would be significant for her having recently lost her mother unexpectedly and tragically, and especially given their shared history and hardship in Australia over the past 15 years.  

31. The Tribunal has considered the applicant’s circumstances and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ and has decided to refer the matter.  Having regard to the above findings, the Tribunal considers the circumstances of this matter fall within the following ‘unique or exceptional circumstances’ specified in the Guidelines on ministerial powers: 

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. In the present case this hardship would be to Mr Brown, who is an Australian citizen and Ms Victorine Latu, aa permanent resident.

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.  The applicant is a young person, 22 years of age who has lived continuously in Australia for the past 15 years. His formative years, including formation of close ties, have all been in Australia. 

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.  In the present case, the combined circumstances of the sudden, unanticipated death of the applicant’s mother, and requirement for Mr Brown to navigate the legal system and obtain family law orders, led to the application being lodged several months after the applicant had turned 18. His age was the only reason he was unable to meet the criteria, while his sister was granted the same class of visa.  

32. The applicant may also wish to provide, directly to the Department, further supporting material for the Minster’s consideration.

    DECISION

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

    Meena Sripathy
    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.

    …

    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.

    …