Moreno (Migration)

[2022] AATA 2028

Moreno (Migration) [2022] AATA 2028 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rizalito Moreno

VISA APPLICANT:  Mr Jr Yupo Moreno

CASE NUMBER:  2105736

HOME AFFAIRS REFERENCE(S):          CLF2020/26877

MEMBER:Peter Vlahos

DATE:23 March 2022

PLACE OF DECISION:  Melbourne

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 101.211of Schedule 2 to the Regulations

This Statement was made on 23^rd March 2022 at 7.27AM

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – applicant the biological or adopted child of sponsor – birth certificate not provided to department, but provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CA, 65

Migration Regulations 1994 (Cth), Schedule 2, cl 101.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 is a national of the Philippines, born on [Date]. The visa applicant applied for the visa on 30 June 2020. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant was the dependent child of the sponsor. The sponsor (“the review applicant”) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal has formed the view it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant Law

4. 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 (“the Regulations”).

5. 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).

   Is the child a child of the sponsor?

6. In determining whether the applicant is the child of a person under s. 5CA of the Act, the applicant needs to demonstrate that he is either a biological child or the adopted child of the sponsor.

7. In this instance, the applicant claimed to be the biological child of his sponsor. However, a copy of the applicant’s birth certificate was not provided to the Department, and the delegate determined that the applicant was not the ‘a child of a person’ as defined in s. 5CA of the Act.[1] The delegate also noted that the definition of ‘dependent child’ to be met, the applicant needed to be the ‘child’ or ‘step-child of a person’. The delegate concluded that with the available evidence before him, the applicant did not meet the definition of ‘child of a person’ pursuant to s. 5CA but also did not meet the definition of ‘dependent child’ under r.1.03.

   [1] see, delegate’s reasons for decision, at p.3, 30 June 2020 in AAT File.

8. Following the delegate’s decision to refuse the application, the review applicant has provided to the Tribunal evidence that the visa applicant was the biological child of the applicant’s sponsor. The evidence is in the form a birth certificate issued by the Civil Registrar General of the Republic of the Philippines and is certified under signature and seal and dated 23 January 2003. The birth certificate names the visa applicant as having been born on [Date] and records his sponsor, as his father.[2]

   [2] AAT File copy of birth certificate no. [Number] dated 23 Jan. 2003.

9. The Tribunal accepts this evidence as proper in determining matters as with regards to the applicant’s claim that he is the biological child of his sponsor.

10. The visa applicant meets the definition that he is ‘a child of a person’ as provided for in s. 5CA of the Act and further meets the definition of ‘dependent child’ as provided for by r. 103

11. For the reasons above, the criteria in cl 101.211 are met.

12. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

13. 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

    Peter Vlahos
    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.

    …