Lumacang (Migration)

[2021] AATA 3790

Lumacang (Migration) [2021] AATA 3790 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rosalie Lumacang

VISA APPLICANT:  Mr Mark Anthony Lumacang

CASE NUMBER:  2102331

HOME AFFAIRS REFERENCE(S):          CLF2020/39601

MEMBER:Christine Kannis

DATE:28 September 2021

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 28 September 2021 at 4:38pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – biological child – birth certificate provided to tribunal – certificate contains no information about father – visa applicant turned 18 since application made – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.03(a), Schedule 2, cl 101.211(1)

CASE
Hasran v MIAC [2010] FCAFC 40

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 23 February 2021 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 30 July 2020. 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). Relevantly to this case, they include cl.101.211 which requires the applicant be a dependent child of an Australian permanent resident.

3. The delegate refused to grant the visa on the basis that cl.101.211(1)(a) was not met because the delegate was not satisfied that the visa applicant is the biological child of the review applicant (the sponsor). The delegate noted the absence of documents including the absence of a birth certificate or any other documents to support the birth of the visa applicant.

4. On 5 August 2021, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting her to provide proof that the visa applicant is a child of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and information to demonstrate the visa applicant’s dependency on the Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The invitation advised that if the information was not provided in writing by 19 August 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant did not provide the information within the prescribed period and no request for an extension of time was received. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. On 20 August 2021, the Tribunal advised the review applicant that she had lost her entitlement to appear before the Tribunal. She was also advised that the Tribunal had decided to allow her 7 days to provide any further information failing which the Tribunal would make a decision based on the information available. In response, the review applicant provided documents which included but were not limited to the visa applicant’s Certificate of Live Birth.

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.

   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 has provided the Tribunal with a Certificate of Live Birth for the visa applicant which shows his date of birth as 25 November 2002. This means that he was 17 years old 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).

12. As the visa applicant was under the age of 25 at the time of application, he meets cl.101.211(1)(b).

13. 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 (cl.101.221(1)(b)). The visa applicant is now 19 years of age and the Tribunal finds that the he is a dependent child at the time of this decision. 

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

    Child-parent relationship

15. 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).

16. The Certificate of Live Birth, issued by the Republic of the Philippines Office of the Civil Registrar General, indicates the review applicant is the visa applicant’s mother. No details are provided for the visa applicant’s father and where the Date and Place of Marriage of Parents details are to be provided, the word “Illegitimate” is typed.

17. On the basis of the Certificate of Live Birth, 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.  

18. 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 he meets cl.101.211 in its entirety.

19. The Tribunal finds that the visa applicant does not continue to satisfy the requirements of cl.101.211 at the time of this decision only because he has turned 18 and therefore meets cl.101.221(1)(b). As cl.101.221(2) does not apply because the visa applicant was under the age of 18 at the time of application, he therefore satisfies the requirements of cl.101.221 in its entirety.

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.

    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.

    …