Marqueses (Migration) - [2021] AATA 4428

Marqueses (Migration) [2021] AATA 4428 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Angelica Faye Mariano Marqueses
CASE NUMBER:  2015087
HOME AFFAIRS REFERENCE(S):          CLF2020/9321
MEMBER:Andrew McLean Williams
DATE:28 October 2021
PLACE OF DECISION:  Brisbane
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:
·cl.802.212 of Schedule 2 to the Regulations; and
·cl.802.214 of Schedule 2 to the Regulations.

Statement made on 28 October 2021 at 1:27pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent on the sponsor for a substantial period – period of full-time work – gap in full-time studies – money transfers exceeded temporary salary – delay in enrolment – reasonable time – greater reliance on the sponsor than other sources of financial support – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.05
CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 23 September 2020 thereby refusing to grant the Applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (‘the Act’).
The Applicant applied for the visa on 26 February 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 advanced by the Applicant 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’). 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, and cl.802.214. These require that as at the date of the visa application the Applicant be a “dependent child” of an Australian citizen or permanent visa holder or eligible New Zealand citizen, and in the case of an Applicant aged 18 years or older, that the Applicant has within 6 months after completing the equivalent of year 12 or a reasonable time after completing the equivalent of year 12 been undertaking a continuous course of study.
The Delegate refused to grant the visa on the basis of the Delegate having taken the view that cl.802.212 and cl.812.214 were not met, because the Applicant completed a course of undergraduate studies in the Philippines on 11 June 2019, and then worked full-time as a marketing assistant from 1 August 2019 until 15 December 2019, before resuming her full-time studies in Australia, in February 2020. In light of this, the Delegate took the view that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marqueses (Migration)

Details

AGLC: Marqueses (Migration) [2021] AATA 4428
Case: [2021] AATA 4428
Decision Date: 28 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who was 24 years old. The dispute centred on whether the applicant met the criteria for being a "dependent child" of an eligible sponsor, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant was a "dependent child" under the Regulations at the time of application and decision. Specifically, the Tribunal had to assess whether the applicant, being over 18, was reliant on her mother in Australia for financial support to meet her basic needs, and whether this reliance was greater than any other source of support.

The Tribunal found that the applicant had completed her undergraduate studies and, due to unforeseen delays in obtaining necessary documents from her university, faced a delay in commencing her planned postgraduate studies. During this period, she took on a full-time role as a graduate trainee marketing assistant, earning a modest income. However, the Tribunal noted that the financial remittances from her mother in Australia, which covered her essential living expenses, significantly exceeded her earnings during this employment. Applying the principles from *Huynh v MIMA* [2006] FCAFC 122, the Tribunal concluded that the applicant was, as a matter of fact, reliant on her mother for financial support to meet her basic needs, and this reliance was greater than any other source of support.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that the applicant met the criteria under clauses 802.212 and 802.214 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should now be remitted to the Department for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the Applicant meets the requirements of clauses 802.12, and 802.14 in Schedule 2 of the Regulations.Dependent child criteria The criteria within cl.802.212 essentially require that, as at the time of application, the Applicant must be a ‘dependent child’ of an eligible person, and be under 25 years of age or otherwise incapacitated for work. These requirements must continue to be met at the time of decision, or, if they are not met, it is only because the Applicant has turned 18 (or if already 18, only because the Applicant has turned 25): cl.802.221(1) or (2)(a).Dependent child At the time of application, the Applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). ‘Dependent child’ is defined in r.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. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44]. The Applicant was born on 12 February 1997 and is presently aged 24. The Applicant remains unpartnered, and is not engaged to be married. The Applicant completed her secondary schooling in the Philippines in April 2015 and immediately thereafter commenced undergraduate studies at the University of Santo Thomas, in Manila. The Applicant completed a Bachelor of Science (Business Administration majoring in Marketing Management) at that institution on 3 June 2019. Throughout her undergraduate studies the Applicant was entirely financially dependent on support from her Mother in Australia, who met all of the Applicant’s essential living expenses in the Philippines, by means of sending her daughter the equivalent of approximately $AUD 200, per week. There is now sufficient evidence before the Tribunal of financial remittances from Ms Munt to her daughter in the Philippines, to confirm this to have been the case. Originally, upon graduation from the University of Santo Thomas, the Applicant had planned to immediately commence in a full-time Master’s program, also in the Philippines. In order to be able to do that the Applicant required her academic transcript and Bachelor of Science certificate from the University of Santo Thomas as supporting documents to underpin her application for enrolment in the Master’s program. For reasons that were beyond her control the Applicant did not however receive these documents from the University of Santo Thomas until about mid-August 2019, which was after the cut-off date for enrolment in the planned Master’s program, thus meaning that the Applicant was then required to wait to commence that program in the following semester in calendar year 2020. Thus facing an unexpected delay to her studies the Applicant resolved to at least make worthwhile use of enforced sojourn from her studies and took a job as a graduate trainee marketing assistant, working for Masterpiece Asia Properties Inc. This role entailed the Applicant working on promotional campaigns for Disney movies in shopping centres. The Applicant worked in that role from 1 August 2019 until 15 December 2019 (22 weeks). During this time the Applicant earned the equivalent of only $2,543.95 AUD. Meanwhile, Ms Munt continued to send her daughter an allowance of $200 per week which was obviously an amount that is in excess of what her daughter managed to earn during this period.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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:·cl.802.212 of Schedule 2 to the Regulations; and·cl.802.214 of Schedule 2 to the Regulations.Andrew McLean WilliamsMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.