Maqdassi (Migration)

[2018] AATA 5369

Maqdassi (Migration) [2018] AATA 5369 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Maha Maqdassi

VISA APPLICANTS:  Mr Mahmoud Arnaout
Mr Fekri Arnaout

CASE NUMBER:  1618832

HOME AFFAIRS REFERENCE(S):           OSF2016/014800

MEMBER:Kira Raif

DATE:19 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 19 December 2018 at 10:51am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent children of the sponsor – Australian resident sponsor – sponsored by the applicants’ step-mother – children of the sponsor’s former partner – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, Schedule 2, cls 101.211, 101.212

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 Immigration and Border Protection on 27 September 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Lebanon, born in 2002 and 2006 respectively. The visa applicants applied for the visas on 15 June 2016. The delegate refused to grant the visas on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicants were dependent children of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. On 14 November 2018 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 19 December 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the review applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. The applicant’s representative informed the Tribunal that they had difficulty contacting the applicant in relation to the hearing but the Tribunal is mindful that two SMS reminders were sent directly to the review applicant and there is no evidence before the Tribunal at the time of this decision that these have not been successfully delivered.

5. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

6. 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).

7. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

8. Clause 101.212 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. 

   Is the applicant a dependent child of the sponsor?

9. Regulation 101.212 provides that the applicant must be a dependent child of an Australian citizen or a permanent resident or an eligible New Zealand citizen. According to the primary decision record, a copy of which the review applicant provided to the Tribunal, the visa applicants were sponsored by their step-mother. The primary decision record indicates that in 2015 the sponsor lodged a sponsorship form to sponsor Mr Ahmad Arnaout, who is the father of the visa applicants. Mr Arnaout travelled to Australia holding an ETA in December 2014 and in March 2015 made an application for a Partner visa. At the time of the primary decision, he was holding a Bridging visa.

10. As the visa applicants were sponsored by the partner of their biological father, the Tribunal finds that the sponsor is not a biological parent of the children but a step-parent.

11. Clause 101.211(c)(i)(B) requires the applicant to be a step-child within the meaning of paragraph (b) of the definition of ‘step-child’. That is, the applicant must be a child of the parent’s former spouse or de facto partner. In the present case, the evidence before the Tribunal indicates that Mr Arnaout is the current partner of the sponsor and at the time of the application, was seeking a Partner visa on the basis of his relationship with the sponsor. That is, the visa applicants are not children of the sponsor’s former spouse or de facto partner. Rather, the visa applicants are children of the sponsor’s current partner.

12. The Tribunal finds that at the time of the application, the visa applicants were not children of the sponsor’s former spouse or former de facto partner. When the application was made, the children were the children of the sponsor’s current partner. The Tribunal finds that the visa applicants were not the children of the sponsor. They were not step-children of the sponsor within the meaning of paragraph (b) of the definition of step-child. There is no evidence that the children were adopted overseas. The Tribunal is not satisfied the visa applicants meet cl. 101.211(1)(c) and cl. 101.211.

13. There is no evidence that the visa applicants were adopted and the Tribunal is not satisfied they meet the requirements for the grant of the Subclass 102 visa. There is no evidence of the children being orphan relatives and the Tribunal notes that the children’s biological father is alive, his whereabouts are known and there is no evidence of incapacity. The Tribunal is not satisfied the visa applicants are orphan relatives of an Australian relative. They do not meet the requirements for the grant of the Subclass 117 visa.

    Conclusion

14. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

15. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member