Lazo (Migration)

[2021] AATA 5418

Lazo (Migration) [2021] AATA 5418 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mark Ryan LAZO
Laurence Mogol LAZO

CASE NUMBER:  1936459
1936676

HOME AFFAIRS REFERENCE(S):          CLF2019/25155
CLF2019/25163

MEMBER:Mireya Hyland

DATE:3 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants a Child (Residence) (Class BT) visa.

Statement made on 03 December 2021 at 1:08pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant is not a step-child within the meaning of paragraph (b) of the definition of step-child – Ministerial Intervention – no bar to applicants making a further valid application for a Subclass 802 visa – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 65, 351, 501

Migration Regulations 1994, r 1.03, cls 802.211, 802.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. These are applications for review of decisions made by a delegate of the Minister for Immigration on 12 December 2019 to refuse to grant the applicants, Mark Ryan Lazo and Laurence Mogol Lazo, a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. Mark and Laurence Lazo applied for the visa on 24 May 2019 on the basis of their relationship with their sponsor, Peter Charles CLARKE. 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 (the Regulations). Mark and Laurence are represented in relation to the review by their solicitor, Ashor Georges.

3. As there is no letter of support from a State or Territory government welfare authority (cl.802.216, cl.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(1A) was not met because Mark and Laurence are not Mr Clarke’s step-children within the meaning of paragraph (b) of the definition of step-child in r.1.03 of the Regulations. Those decisions were provided to the Tribunal by the Lazos as part of their review applications.

4. The applications for review were lodged on 27 December 2019 and constituted to the Tribunal on 21 October 2021. Mark and Laurence Lazo agreed to have their applications heard together and the Tribunal has made a joint decision in this case. On 15 November 2021, the Tribunal contacted the Lazos’ solicitor, Mr Georges, to ask if his clients would waive the prescribed period for a hearing. He stated that they would not because they were taking their high school exams. In light of the fact that, for the reasons below, it was never possible for Mark or Laurence to succeed in this matter, the Tribunal asked Mr Georges if his clients would prefer not to have to attend a hearing and for the Tribunal to make its decision on the papers. It offered to give them ample time to make submissions on whether the Tribunal should refer the matter for the Minister’s intervention under s.351. Mr Georges told the Tribunal he did not want the matter to proceed on the papers.

5. On 16 November 2021, the Tribunal invited Mark and Laurence to a hearing to be held on 2 December 2021. On 22 November 2021, Mr Georges wrote to the Tribunal and requested that the hearing be postponed because Mark and Laurence were sitting their final exams and their course did not end until 2 December 2021. The Tribunal contacted Mr Georges and requested that he provide evidence that the Lazos had exams on either 2 or 3 December 2021 and, therefore, could not attend the Tribunal hearing. Mr Georges informed the Tribunal that he was unable to provide evidence that Mark and/or Laurence had exams on or after 2 December 2021 and he agreed to have the hearing proceed as scheduled. Mark and Laurence Lazo both appeared before the Tribunal on 2 December 2021 at 9:30am via Microsoft Teams to give evidence and present arguments. The Tribunal also received oral submissions from Mr Georges.

6. The issue in the current matter is whether Mark or Laurence Lazo is Mr Clarke’s step-child as defined in cl.802.212(1A) and paragraph (b) of the definition in r.1.03. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Mark and Laurence were born in Manila, the Philippines on 29 December 2000 and are 20 years of age. At the time of the child visa application, they were 18 years old. Cynthia MOGOL, born 10 November 1969 and a citizen of the Philippines, is their mother. Mr Clarke was born in Australia on 14 November 1964 and is an Australian citizen. Ms Mogol married Mr Clarke on 13 April 2019 and so he is, and was at the time of application, Ms Mogol’s spouse. Therefore, Mark and Laurence are Mr Clarke’s step-children. The family lives together in Lurnea, New South Wales and the Lazo children have just completed their high school certificate at Bankstown Senior College. Documents provided show both Mark and Laurence have achieved academically and expect to go on to university.

8. On 22 March 2017, Ms Mogol was granted a Visitor (Class FA) Subclass 600 visa and she entered Australia on 10 May 2017 without Mark and Laurence who remained in the Philippines studying at the University of Makati in Makati City. Ms Mogol applied for and was granted further Visitor visas on 31 May 2017, 3 November 2017, and 29 January 2018, the last of which ceased on 10 May 2018. On 4 May 2018, Ms Mogol applied for a Partner (Temporary) (Class UK) Subclass 820 visa and was granted a Bridging Visa A (Class WA) Subclass 010 visa (BVA) in relation to that visa application. Mark and Laurence were not included as dependent children in that partner visa application because they remained in the Philippines and Item 1214C(3)(c) of Schedule 1 to the Regulations requires that the applicant must be in Australia to make a valid Subclass 820 application.

9. Mark and Laurence completed their University of Makati course on 11 April 2018. They were granted Subclass 600 Visitor visas in July 2018 and first entered Australia on 11 August 2018. They applied for and were granted further Visitor visas on 30 November 2018 and 22 February 2019, the last of which ceased on 11 August 2019. On 12 June 2019, they were granted BVA visas in relation to their child visa applications. On 5 October 2020, Ms Mogol was granted a Subclass 820. On the same day she was also granted a Partner (Residence) (Class BS) Subclass 801 visa and became an Australian permanent resident.

10. To satisfy the criteria for the visa under review Mark and Laurence must meet cl.802.212:

    802.212

    (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.

    Mr Clarke applied to sponsor Mark and Laurence by completing and signing the Sponsorship for a child to migrate to Australia Form 40CH. The Tribunal accepts that he is a person who is an Australian citizen for the purposes of cl.802,212(1)(a). The Tribunal notes that at the time of application Ms Mogol was the holder of a BVA visa granted in relation to her partner visa application which had not yet been finalised. She was not an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen and so could not be the person referred to in cl.802.212(1)(a) and sponsor her children.

11. Relevantly, cl.802.212(1A) applies in this case because Mark and Laurence are the step-children of Mr Clarke, the person referred to in cl.801.212(1)(a). Therefore, they must meet the definition of step-child found in paragraph (b) in r.1.03 of the Regulations. The definition of step-child found in r.1.03 states:

    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.

    In essence, for the purposes of this case, the step-child must be the child of a former spouse and not have turned 18 at the time of application.

12. The Tribunal confirmed with Mark and Laurence at the hearing that at the time of application and at the time of this decision, Ms Mogol remained Mr Clarke’s current spouse, not his former spouse. Further, on 24 May 2019 when the application was lodged Mark and Laurence were 18 years old, not under the age of 18. Therefore, at the time of application they did not meet (b)(i) and (ii) of the definition of step-child in r.1.03 of the Regulations.

13. Both Mark and Laurence are a step-child of Mr Clarke, being the person mentioned in 802.212(1)(a), because they are not the child of the parent but are the child of the parent's current spouse or de facto partner, being the definition in paragraph (a) for step-child in r.1.03. But neither Mark nor Laurence is a step-child within the meaning of paragraph (b) of the definition of step-child. Accordingly, cl.802.212(1A) is not met.

14. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

15. There are no claims made in respect of the other visa subclass in Class BT, being Subclass 837 (Orphan Relative). In any event, neither Mark nor Laurence satisfy the definition of orphan relative in r.1.14 of the Regulations and, therefore, they do not meet cl.837.213.

    MINISTERIAL INTERVENTION

16. Mr Georges has requested that the Tribunal refer the Lazos’ case to the Department of Home Affairs for consideration by the Minister pursuant to s.351, 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. The Tribunal has considered their case and the Minister's Guidelines on Ministerial Powers (s351, s417 and s501J) (the ministerial guidelines) set out in the Department’s Procedures Advice Manual (PAM3) relating to the discretionary power. On 24 November 2021, Mr Georges provided a submission with attached documents, none of which address the circumstances in which a case should be brought to the Minister’s attention set out in the ministerial guidelines.

17. Part 3 of the ministerial guidelines, Ministerial Intervention Principles, states that if a person has a visa pathway available to him or her, including an offshore pathway, it is generally not appropriate for the Minister to intervene. The Tribunal believes that Mark and Laurence do have an onshore visa pathway. They can make another Subclass 802 visa application sponsored by their mother who is now the holder of a permanent visa and, therefore, can be the person referred to in cl.802.212(1)(a).

18. The Tribunal has considered whether there is any bar to the Lazos making a further Subclass 802 visa application. Section 48(1) of the Act states that persons like the Lazos, who are the holders of a BVA visa, and who have been refused a visa after last entering Australia, can apply for a class of visa prescribed for the purposes of that section, but not for a visa of any other class. Regulation 2.12 lists the classes of visa prescribed for s.48, including, at r.2.12(p), a Child (Residence) (Class BT) visa. Relevantly, if subject to s.48 of the Act, to make a valid application Item 1108A(3)(e) in Schedule 1 to the Regulations requires that the applicant has not turned 25 and provides an approved Sponsorship for a child to migrate to Australia Form 40CH completed and signed by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the parent. Neither Mark nor Laurence have turned 25 and their mother, Ms Mogol, is now an Australian permanent resident who can complete and sign a Form 40CH. There is no bar to Mark and Laurence making a further valid application for a Subclass 802 visa.

19. Clause 802.211 of Schedule 2 to the Regulations also deals with persons to whom s.48 of the Act applies. An applicant must not have been refused a visa or had a visa cancelled under s.501 of the Act and since last applying for a substantive visa, must have become a dependent child of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Lazos have not had a visa refused or cancelled under s.501 and last applied for a substantive visa on 24 May 2019. Although there is no judicial authority on the correct interpretation of cl.802.211(b), it is not ambiguous and there is no reason why it should not be given its ordinary meaning. A straight reading of the clause makes clear that the question for the decision-maker is on what date did the child become dependent on a person with the relevant migration status and was that date after the child last applied for a substantive visa. Therefore, if they are found by the decision-maker to be dependent on Ms Mogol at the time of application, Mark and Laurence will have become the dependent children of a holder of a permanent visa on the date she was granted her Subclass 801 visa, being 5 October 2020, which is since last applying for a substantive visa. It is not relevant for the purposes of meeting cl.802.211(b) who they were dependent on prior to that date as long as that person was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

20. As the situation currently stands, the Tribunal can see no bar to the Lazos re-applying for Subclass 802 visas and meeting the necessary criteria for making a valid application and satisfying Part 802 of Schedule 2. However, it is a question for the relevant decision-maker whether that remains the case at the time of application and time of decision of any future visa application.

21. For the above reasons, the Tribunal has decided not to refer the matter to the Department for consideration by the Minister. However, it notes that Mark and Laurence Lazo can still make a request directly to the Minister.

    DECISION

22. The Tribunal affirms the decisions not to grant the applicants a Child (Residence) (Class BT) visa.

    Mireya Hyland
    Member