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

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).
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).
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
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.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is a dependant chid of an eligible person.
Dependent child criteria
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…

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 Muhammad (Migration)

Details

AGLC: Muhammad (Migration) [2022] AATA 405
Case: [2022] AATA 405
Decision Date: 11 February 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant seeking to establish that they were a dependent child of an eligible person. The applicant's biological mother was a permanent visa holder. The primary dispute revolved around whether the applicant met the definition of a "dependent child" as defined in the Migration Regulations 1994. The decision was made by Member Maxina Martellotta of the Tribunal.

The Tribunal was required to determine whether the applicant satisfied the criteria for being a dependent child of an eligible person at the time of application and at the time of decision, as stipulated by clauses 802.212 and 802.221 of Schedule 2 to the Regulations. Specifically, the Tribunal needed to assess if the applicant was under 18 years of age and if the biological mother was an eligible sponsor, considering the definition of "dependent child" and the evidentiary requirements for establishing this relationship.

The Tribunal reasoned that the applicant, being under 18 years of age, met the primary limb of the definition of a "dependent child" under regulation 1.03. This was confirmed by the provision of a birth certificate, which established the biological link between the applicant and the sponsor. The Tribunal noted that the delegate had not been provided with this crucial document, leading to the initial refusal. Applying the principles from *Huynh v MIMA* [2006] FCAFC 122, the Tribunal found that the applicant's age and biological relationship to the sponsor satisfied the relevant criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be considered to meet the criteria under cl 802.212(1) and cl 802.221(1)(a) of Schedule 2 to the Regulations, with the remaining criteria to be assessed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is a dependant chid of an eligible person.Dependent child criteria 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 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. 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]. 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. 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. 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. 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) 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, 5th edition (Lawbook co. 2012), at [21.10] p.718.

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 (1) of Schedule 2 to the Regulations; and·cl 802.221 (1) (a) of Schedule 2 to the Regulations.Maxina MartellottaMemberATTACHMENT – 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

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