Mirupasi (Migration)

[2021] AATA 3592

Mirupasi (Migration) [2021] AATA 3592 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Miriam Mirupasi
Master Vincent Andawe Junior Mirupasi
Miss Tanya Mirupasi
Master Surea Mirupasi
Master Julian Richard Mirupasi
Miss Vinniane Beatrice Mirupasi

CASE NUMBER:  1832308

HOME AFFAIRS REFERENCE(S):          CLF2017/109240 CLF2017/109238 CLF2017/109246 CLF2017/109216 CLF2017/109207 CLF2018/1734

MEMBER:Meredith Jackson

DATE:2 September 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Child (Residence) (Class BT) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 802 visa:

· cl.802.211 of Schedule 2 to the Regulations; and

· cl.802.212 of Schedule 2 to the Regulations.

Secondary applicants to be remitted on the basis of the remit of the primary applicant.

Statement made on 02 September 2021 at 11:47am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant’s mother had provided the applicant with full financial support to meet her basic needs – applicant was a dependent child of the sponsor – substantial period – children’s father went back to PNG – decision under review remitted

LEGISLATION

Migration Act 1958, ss 48, 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 802.212, 802.211, 802.221

CASES
Bretag v MILGEA [1991] FCA 582
Huynh v MIMA [2006] FCAFC 122

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 12 October 2018 to refuse to grant the applicants Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 November 2017. 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 (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.802.211.

4. The delegate refused to grant the visas on the basis that cl.802.211 was not met because the applicant had not, since last applying for a substantive visa, become the dependent child of an Australian citizen.

5. The applicant Miriam Mirupasi appeared before the Tribunal on 31 August 2021 by video link, and was accompanied by her mother Mrs Theresa Maia Mirupasi and four of her siblings who are the secondary applicants, to give evidence and present arguments. The Tribunal received oral evidence provided with the applicant’s consent by Mrs Mirupasi. The Tribunal also received oral evidence from the applicant, and from Vinniane and Tanya

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

8. The primary applicant in this case is Miss Miriam Mirupasi, born 2006 and a national of New Guinea. Her five are siblings are also citizens of Papua New Guinea (PNG). They are Master Vincent Andawe Junior Mirupasi, born 2008; Miss Tanya Mirupasi, born 2005; Master Surea Mirupasi, born 2010, Master Julian Richard Mirupasi, born 2004; and Miss Vinniane Beatrice Mirupasi, born 2003. Their mother and sponsor Mrs Theresa Maia Mirupasi was in September 2015 granted Australian citizenship by descent. She has two Australian children by descent. The children’s father is Vincent Mirupasi, a citizen and resident of Papua New Guinea who is a legal practitioner in Port Moresby. The six children arrived in Australia on 13 December 2015 with their mother and continue to live with her. Relevantly, Mr Vincent Mirupasi applied for a Partner (subclass 820) visa on 12 February 2016, sponsored by Mrs Mirupasi and including the six children as migrating dependent applicants. After the lodgement, Mr Mirupasi returned to PNG, where the applicant claims he provides for two other wives and ten other children. He continued to visit them in Australia until 2019. As secondary applicants for the Partner visa refused in February 2016, the applicant was granted a Bridging E visa and applied for the Child visa in November 2017. The applicant became subject to section 48, which bars her from applying for certain visas but not a Child (Residence) (Class BT) visa, in certain circumstances, and relevantly to the present matter, this includes if since last applying for a substantive visa, she had become a dependent child of an Australian citizen. The applicant claims she meets this condition, because while she was fully dependent on her father for her care at the time of the Partner visa application, she received no substantial support from him after the Partner visa refusal, and became substantially dependent on Mrs Mirupasi after he went to PNG in September 2017. The applicant argues that between visa applications, she became the dependent child of an Australian citizen, i.e. Mrs Mirupasi. The delegate considered this argument, but found that, because the applicant had always been dependent on her mother, she had not become her dependent child in the period between applications.

   ISSUES AND LAW

   Does s.48 of the Migration Act 1958 (the Act) apply?

9. If an applicant does not hold a substantive visa and has had a visa refused or cancelled since their last entry to Australia, they will be subject to s.48 of the Act. This section bars them from applying for another visa while in Australia, except for certain prescribed visa classes, for example Child (Residence) (Class BT) visas. Clause 802.211 of Schedule 2 to the Regulations requires that since the applicant last applied for a substantive visa, they have become a dependent child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand citizen

10. In the present case, on 12 February 2016, the applicant’s father applied for a Partner visa. In that application the applicant was recorded as a dependent secondary visa applicant along with her five PNG-born siblings. On 20 July 2017, after the visas were refused, Mr Mirupasi sought review of the decision by the Tribunal but on 3 October 2017 the Tribunal found it had no jurisdiction in the matter as the application for review was lodged out of time. Mr Mirupasi moved back to PNG. At the time of this visa application on 17 November 2017, the applicant, having been refused a substantive visa, remained onshore as the holder of a Bridging E visa. She has not departed Australia. Therefore, s 48 of the Act applies to the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal has taken into consideration in forming a view in this case, all submissions on review, all the evidence in the Department of Home Affairs (the Department) case file, the evidence in the Tribunal case file and the evidence given at the Tribunal hearing on the behalf of the applicant by Mrs Mirupasi, and by the applicant Miriam and Tanya Mirupasi.

    Issue

12. The issue in this case is whether the applicant, since last applying for a substantive visa while in Australia, has become a dependent child of an Australian citizen and continues to be a dependent child at the time of the decision.

    Dependent child criteria

13. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person and is under 25 years of age or 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

14. 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.

15. 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].

    Is the applicant a dependent child?

    1.05A Dependent

16. (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

    (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.

    Has the applicant become a dependent child since they last applied for a substantive visa?

17. The applicant claims that after the children’s father applied for the Partner visa on 2 February 2016 and then went back to PNG, the applicant became wholly and substantially reliant on Mrs Mirupasi for financial support to meet basic needs for food, clothing and shelter and the applicant’s reliance on Mrs Mirupasi became greater than any reliance on any other person, or source of support, to meet the applicant’s basic needs. The applicant claims that up until Mr Mirupasi returned to PNG in February 2016, the children had been wholly reliant on him for their needs. After returning to PNG, Mr Mirupasi began struggle financially, partly because he was supporting two other wives and ten other children and their school costs, and because his firm was facing financial difficulty. Mrs Mirupasi began receiving Centrelink in July 2017 for the applicant’s support. The applicant claims that therefore, the applicant became a dependent child in the relevant window between 12 February 2016, when they last applied for a visa, and 17 November 2017, when they applied for the visa under review. The delegate’s decision records that the applicant was declared as a dependent child of Mr Vincent Andawe Mirupasi in his application for the Partner visa.

18. As the Partner visa was refused on 12 February 2016 and the Child visa under review was applied for on 17 November 2017, it follows that the period during which the applicant needs to have “become” a dependent child of the eligible person is the period between those dates. At the hearing, the Tribunal raised that while it had an open mind to the issue of when the applicant became a dependent child, the Tribunal may consider that the applicant had always been a dependent child of the sponsor, who is their mother, and therefore at the time of application the applicant was already a dependent child of the sponsor. The applicant responded that she only began to provide for their basic needs when her husband left for PNG, and to do it she sought help from Centrelink. She had, and has, no other income.

19. The Tribunal has carefully considered when the applicant became a dependent child of Mrs Mirupasi in the period between applying for the Partner visa and the Child visa under review. The Tribunal notes that dependency is defined in the Regulations as wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter. It is not necessary in this matter to calculate which degree of support is or has been afforded to any or all of the aforementioned elements or to determine whether any particular element support is provided by one person within a family or both. As stated above, at the hearing, Mrs Mirupasi gave evidence that she is the sole provider for all her children and relies entirely on Centrelink payments to support them financially.

20. The Tribunal has considered the timing of the Child visa application on 17 November 2017, and notes this was two months after Mr Mirupasi returned to PNG, having been unable to secure a Tribunal review of his Partner visa refusal because he lodged out of time. The applicant provided a submission he sent to the office of a Commonwealth Member of Parliament, the Hon. Luke Howarth MP, in which  Mr Mirupasi stated in relation to the visa applications that he and his wife Theresa Mirupasi have eight children, two of whom are Australian citizens, as is Mrs Mirupasi who grew up on Moreton Bay; and that the refusal of their second round of permanent residency applications had been distressful and devastating, especially for his wife Theresa. He stated that there was a “real possibility of our children being deported back to PNG”. He stated he had paid for their applications twice, and although it is expensive, he is committed to his children’s cause and held great fears for their mental wellbeing.

21. The delegate’s decision states that on 5 September 2018, prior to the Child visa refusal, the applicant responded to a letter from the department, written by her authorised recipient and “exempt person” stating that “although Theresa Maia Mirupasi was the sponsor for the applicant’s previous visa application, the family was 100% financially dependent on her father, Vincent Andawe Mirupasi for her welfare and wellbeing” and “Vincent Andawe Mirupasi returned permanently to Papua New Guinea for work purposes (after lodging his Partner visa application in February 2016). Since lodging her last substantive visa in Australia on the 12 February 2016, the applicant lives alone with her mother and siblings in Australia and is fully dependent on her mother in the absence of her father. Therefore, since lasty applying for a substantive visa, the applicant has become dependent on the sponsor.” The applicant provided a copy of an income statement from Centrelink concerning government payments for the applicant.

22. The claim concerning the change in dependency in paragraph [21] above was discussed with Mrs Mirupasi at the hearing. She was economical in response, but this appeared to be a related to her ability to understand what was being asked of her, and that was made more difficult by issues of poor video transmission (the hearing was recommenced by telephone). Two of the applicants, Vinniane Mirupasi and Tanya Mirupasi, also gave evidence, again in an economical manner, which seemed to be shyness. Julian Mirupasi did not given evidence, as he had experienced difficulties contacting the Tribunal. None of the witnesses who were present were other than exceptionally polite, however despite the Tribunal’s efforts to explain the issues, each clearly experienced difficulty with what information they needed to provide to the Tribunal, and the Tribunal noted this was not assisted by the absence of their former nominated exempt person, who did not participate in the hearing. The Tribunal found that each of the witnesses nonetheless appeared credible. Mrs Mirupasi and the two secondary applicants made clear that Mrs Mirupasi became wholly responsible for their basic needs as defined, after their father stopped providing for them.

23. The applicant provided written testimony from the children’s schools, including a letter from the leader of the Redcliffe State High School’s Rugby League Excellence Program, Scott Murray, who described Julian Mirupasi as an “important member of our school” with “outstanding leadership qualities who has brought much kudos to the school for his representation”. Julian’s report card describes his behaviour and effort as “excellent” in English and General Mathematics. School reports for the applicant and the remaining children show very good to excellent marks in most subject areas.

24. Mrs Mirupasi gave evidence that once she was forced to rely on her own resources to provide for her eight children, she needed to move to Maclean in NSW to live with her brother and sister in law, who is an indigenous Australian. She provided a support letter from Aneika Kapeen, the CEO of Mudyala Aboriginal Corporation, who described the involvement of Mrs Mirupasi and her children in the Lower Clarence area of NSW and stated that the community has “the utmost respect for Theresa and the children who are very well mannered and respectful”. Merinda Breckenridge, also of Mudyala Aboriginal Corporation, who stated that among the families who attend the corporation’s programs are Theresa Mirupasi and her children, and all are part of a strong connected indigenous community which her sister-in-law is a proud Aboriginal woman from country; and they are “very much accepted within community.”

    Have the applicants “become” dependent on the sponsor?

25. The issue in the present matter is whether the applicant, at the time of the visa application, was a dependent child of an eligible person; and whether, at the time of decision and since last applying for a substantive visa while in Australia, has become a dependent child of an Australian citizen.  The Tribunal has carefully considered the delegate’s reasoning for why this is not the case, which is basically that Mrs Mirupasi is the applicant’s mother, and the applicant has always been her dependent child.

26. The Tribunal has also considered that Mrs Mirupasi has effectively been handed full financial and other responsibility for the applicant and her other children since the time of the failed review of the Partner visa refusal and Mr Mirupasi going home. There is no evidence before the Tribunal that Mrs Mirupasi has any source of income other than Centrelink payments. There is no evidence that she shares in the ownership of family assets or has ever had access to the family finances. Given that she birthed six of her children in environs of the patriarchal system of her home country, and given her credible claim that her husband has been facing financial difficulties, there is considerable reason to accept her claim as the truth: that she had no control over the finances, assets or interests within the relationship with Mr Mirupasi until he left the family soon after the Partner visa was refused, when he returned to PNG and his other two families and Ms Mirupasi became the sole provider for her PNG-born children as well as the two born in Australia. It is clear from her statements and actions that she has struggled to provide for them and has been forced to move six of her children to New South Wales so they could live together with relatives, while Julian and Vinniane continued their education in Queensland (Vinniane Mirupasi has progressed to training in aged care). A further consideration for the Tribunal is that the children have two Australian born citizen siblings, and, as Mrs Mirupasi claimed in the hearing, the six affected including the applicant, will have no home to go to in PNG. Were they required to return, she states, they would not be able to rely on their father to support them. She said in the hearing: “He cannot take the kids back, he is in financial difficulties, the kids do not have a home to go to; he is married to two other persons; they have five children each, so ten children. There is no-one to look after the kids, because he has other families in PNG.”

27. A brief reading by the Tribunal of PNG media publications verifies that Mr Mirupasi has been facing some scrutiny of his financial dealings in his home country[1]. Mrs Mirupasi stated: “After we lodged the visa he was travelling between PNG and here, at that time he was like, supporting the kids where he could, like if he would send something for the kids; until about a year or two ago. That is when he stopped, not completely, he supported the kids when he could. But it was not much, just gifts. In 2019 that all stopped. That is when he started facing difficulties, so he could not support us; he was only helping us where he could, but then that stopped when the business went down. Now he provides nothing; I am on Centrelink benefits and it is only me providing for them.”

    [1] The National , Vincent Mirupasi: type="1">

28. The Tribunal acknowledges that on the face of it, the children may be seen as having been dependent upon their mother since birth, and therefore cannot have “become” dependent upon her between visa applications. But that is not the obvious reality here. Prior to the refusal of the Partner visa application, the applicant had relied on the financial inputs of Mr Mirupasi, a lawyer and investor, while her home-bound mother credibly had no control over his financial arrangements or assets. In short, they were dependent on him, he was their provider, the one on whom the applicant relied more than any other to meet her basic needs. This arrangement appears to have substantively ended in September 2017. As the applicant claims, at that time she (like all eight children in the family) became fully dependent on their mother. The Tribunal further notes that all of the children are at vulnerable ages, and no longer have an option to rely on anyone else. Their father has ceased his support, as is made clear. Their only provider is their mother. It is she who in 2017 took full responsibility for the applicant’s basic needs of food, shelter and clothing. The Tribunal considers it would be an entirely perverse outcome in this matter if the Tribunal were to find the applicant had not become wholly and substantially dependent on her mother, and not on her father, in the timeframe between visas. It bears emphasis that such an outcome would also place the children into dire circumstances, given they would have no other option but to be sent to PNG and no fixed abode, and potentially rendered homeless. They could not rely on their father, so would live separated from their only responsible relative, who is an Australian citizen willing to care for them, and also from two of their siblings who have attained Australian citizenship through her. The Tribunal is satisfied that it is not the intent of the Regulations to force the Tribunal into an unpalatable, narrow interpretation of when the children “became” dependent on their mother; rather, it is intended to prevent fraudulent claims about dependency. There is no evidence before the Tribunal that any fraudulence or even misleading information is present here; no evidence that the actions of the applicant or their mother are, or have ever been, anything other than credible. To the contrary, it is clear that Mrs Mirupasi is a credible witness who has found the means, against the odds, to provide for eight children by herself, and has done so since September 2017 when the children became wholly and substantially dependent upon her for the first time.

29. The Tribunal is required to make the best and preferable decision in the present matter and to do so it has carefully considered all the evidence submitted and that on Department and Tribunal files, and those in the public arena referred to earlier.  The question is whether the applicant wholly relied on her mother throughout her life, and therefore has always been a dependent, yet this requires a nuanced answer: the Tribunal is acutely mindful that a sharp change occurred in the applicant’s circumstances after her father departed the family, and it left her wholly reliant on their mother; and she has no viable alternative but to live with her, and that means she “became” dependent on her mother in the specified timeframe.

30. For the reasons above, the Tribunal finds the applicant became a dependent child of Mrs Mirupasi in September 2017, when her father substantively returned to PNG and ceased his support of her basic needs.  At that time, Mrs Mirupasi became the person on whom the applicant practically and daily, relied for her basic needs of food, clothing and shelter, more than on any other person. The Tribunal she became fully and substantially dependent between applications, i.e. in the period between the Partner visa refusal on 12 February 2016 and the lodgement of the Child visa on 17 November 2017.

31. The Tribunal has considered whether the applicant had been reliant on the sponsor for a substantial period immediately before the visa application for financial support to meet her basic needs for food, clothing and shelter. The Tribunal notes that her father departed Australia for the last time in 2019 but had effectively left the family in 2017, a period in which, according to Mrs Mirupasi, he provided the applicant with small gifts and a series of short visits; until he ceased both practices. Tanya Mirupasi, a sibling witness, stated that the children do not hear from their father.

32. The term substantial period is often described as a year, and this period of reliance is arguably much shorter, depending on when Mr Mirupasi actually stopped providing. However it is important that the Tribunal on review forms its view independent of Departmental policy as to what is a substantial period by taking into account the circumstances of a particular matter. Mrs Mirupasi in this case was aware the children’s father had left the family in Australia, had two other families to care for, was in financial difficulty, and a Partner visa had been refused him. She was as a result faced as early as 2016 with circumstances where she needed to provide for eight children, only two of whom are Australian citizens. To delay applying for a Child visa for the applicant to meet an undefined “substantial period” would have been illogical and in Mrs Mirupasi’s circumstances with eight children, any period of provision might reasonably be considered to be substantial. At the time of this decision, the applicant and her siblings continue to be entirely in Mrs Mirupasi’s care, with no help coming from PNG. In forming a view on this aspect of the case, the Tribunal notes that, to the extent that later events logically show the existence or non‑existence of facts at an earlier time, those later events may be taken into account to show the existence or non-existence of facts at the earlier time (Bretag v MILGEA [1991] FCA 582).

33. The Tribunal has given close consideration to the evidence provided in support of the application and the review and is satisfied that the applicant was, and had been for a substantial period immediately before that time, wholly and substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; a dependent child of an eligible person at the time of the visa application. At the time  of this decision, the Tribunal finds Miriam Mirupasi is aged under 18 and dependent on her mother wholly and substantially for financial support to meet her basic needs. If applicants are aged under 18, they are not required to establish their dependency.

34. The Tribunal finds the applicant Miriam Mirupasi became a dependent child of the sponsor since she last applied for a substantive visa and therefore, cl 802.211 is met. Because she continues to satisfy the criterion at the time of this decision and has not turned 25, cl.802.221(2) is met and cl 802.221(i) and (ii) are met.

35. The Tribunal finds the applicant is a dependent child of an Australian citizen and has not turned 25. Accordingly, 802.221 is met.

    Secondary applicants

36. On the basis of the above the secondary applicants meet the secondary criteria in cl.802.311.

    Conclusion

37. The Tribunal finds that cl.802.212(1)(a) is met at the time of application and continues to be met at the time of decision.

38. The Tribunal finds cl.802.212(1)(b) does not apply at the time of application and is not required to be met at the time of decision.

39. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa. Secondary applicants to be remitted on the basis of the remit of the primary applicant.

    DECISION

40. The Tribunal remits the applications for Child (Residence) (Class BT) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.211 of Schedule 2 to the Regulations; and

    ·cl.802.212 of Schedule 2 to the Regulations.

    Secondary applicants to be remitted on the basis of the remit of the primary applicant.

    Meredith Jackson
    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.

    …