Muhammad (Migration)

[2022] AATA 405

Muhammad (Migration) [2022] AATA 405 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Hakimi Muhammad

REPRESENTATIVE:  Mr Andrew Kurowski (MARN: 0321519)

CASE NUMBER:  2100952

HOME AFFAIRS REFERENCE(S):          CLF2020/56540

MEMBER:Maxina Martellotta

DATE:11 February 2022

PLACE OF DECISION:  Perth

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 (1) of Schedule 2 to the Regulations; and

·cl 802.221 (1) (a) of Schedule 2 to the Regulations.

Statement made on 11 February 2022 at 3:54pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian citizen – birth certificate provided upon review – biological parents – decision under review remitted       

LEGISLATION

Family Law Act 1975, s 60
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.216, 802.221, 802.226; rr 1.03, 1.05

CASES

Huynh v MIMA [2006] FCAFC 122

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 15 January 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 August 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 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 (Cth) (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

4. The delegate refused to grant the visa on the basis that cl 802.212 (1) (a) was not met because they did not have evidence of the applicant’s birth certificate and so were not satisfied that the applicant could demonstrate that he was a dependant child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. 

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is a dependant chid of an eligible person.

   Dependent child criteria

8. 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

9. 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 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.

10. 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].

11. It is not in contention that the sponsor was granted a Partner visa (subclass 801) on 26 September 2018 and is a permanent visa holder.

12. In this matter the delegate was not provided with the applicant’s birth certificate and as such concluded that they could not be satisfied that the applicant came within the definition of a dependent child of an eligible person.

13. A copy of the applicant’s birth certificate and certificate translation was provided to the tribunal. The tribunal accepts this evidence finds that the applicant:

    a)Was born on 30 August 2005 he is currently 16 years of age and at the time of application for the visa on 28 August 2020 he was 14 (nearly 15) years of age. At the time of application and currently the applicant is under 18 years of age.

    b)The birth certificate confirms that the applicant’s biological mother is the sponsor Nadia Binti Pengson.

14. As noted, regulation 1.03 defines dependent child (amongst other things) means the child of the person being a child who has not turned 18. Section 5CA of the Act defines child of a person as including:

    (1)  Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act)

15. The Family Law Act generally refers to a relationship between a child and their biological parents as a child-parent relationship.[1]  Accordingly, cl 802.212(1) is met at the time of application and continues to be met at the time of decision.

    [1] S60H of the Family Law Act and See also Parkinson P, Australian Family Law in Context Commentary and Materials, 5^th edition (Lawbook co. 2012), at [21.10] p.718.

16. For the reasons above, the criteria in cl 802.212 (1) and cl 802.221(1) (a) are met.

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

    DECISION

18. 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 (1) of Schedule 2 to the Regulations; and

    ·cl 802.221 (1) (a) of Schedule 2 to the Regulations.

    Maxina Martellotta
    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.

    …