Muijtjens (Migration)

[2018] AATA 4629

Muijtjens (Migration) [2018] AATA 4629 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Irena Arianti Mahaputri Muijtjens

CASE NUMBER:  1615634

DIBP REFERENCE(S):  CLF2016/34832

MEMBER:Kira Raif

DATE:13 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 13 August 2018 at 4:15pm

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) visa – no prescribed relationship between the applicant and the person holding the Partner visa – applicant is not a child of the visa holding person but her sister  – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.05, Schedule 1, Schedule 2, cl 445.211

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 Immigration on 6 September 2016 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Indonesia, born in July 2001. The visa applicant applied for the visa on 7 June 2016. The delegate refused to grant the visa on the basis that cl. 445.211 was not met because the delegate was not satisfied that the applicant was a dependent child of the visa holding parent. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 August 2018 to give evidence and present arguments. The Tribunal also took oral evidence from the sponsor and the applicant’s mother. The hearing was conducted with the assistance of an interpreter. For the reasons that follow, the Tribunal has determined that the decision should be affirmed.

   Relevant law

4. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

5. The primary criteria require that at the time of application, the visa applicant must be a ‘dependent child’ (as defined in r.1.03 and r.1.05A) of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen, who has not turned 25: cl.445.211(a). ‘Dependent child’ is defined in r.1.03 of the Regulations.

   Is the applicant a dependent child of a visa holding parent?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant provided with her application her birth certificate which identifies her mother as Rini Kusrini and father as Rudolph Paul Joseph Muijitjens. The applicant is identified as the sister of the person holding the temporary Partner visa.

7. The applicant included in the application a letter from her sister, which indicates that she is supporting her husband in sponsoring the applicant to live with them in Australia to give the child a better future as her family cannot support to her. The sponsor also provided statements to the Tribunal indicating that the child’s parents cannot financially support the child while he and his wife have been providing financial support for a number of years. There is also a statement from the applicant’s mother consenting to the child’s residence in Australia and the mother confirmed in oral evidence to the Tribunal that she cannot support her daughter and would prefer for her daughter to live with her sister in Australia. The Tribunal acknowledges that evidence and is prepared to accept that the child’s parents cannot provide care and financial support to the child. The Tribunal is prepared to accept that such support has been provided by the applicant’s sister and her partner. However, that does not alter the relationship between the applicant, the sponsor and the ‘visa holding parent’. Essentially there is no prescribed relationship between the applicant and the person holding the Partner visa. The applicant is not a child of the visa holding person but her sister.

8. There is no evidence that when the application was made, the applicant was an adopted child and she is not the biological child of the visa holding person. There is no evidence of anything that would render their relationship as that of parent and child.

9. In oral evidence to the Tribunal the sponsor said that they did not know they could include the applicant in the Partner visa application made by his wife and that is why they applied for the Extended Eligibility visa. The Tribunal acknowledges that the sponsor may have believed that they could meet the visa criteria but that is not sufficient. The sponsor told the Tribunal that he had read about guardianship and adoption on the Department’s website but there is no evidence here that either guardianship arrangements or the adoption arrangements have been put in place. While the Tribunal acknowledges that there may be financial support by the sponsor for the visa applicant, such financial support does not establish either adoption or guardianship arrangements. The sponsor’s evidence to the Tribunal is that they cannot arrange the adoption because the visa applicant’s father is uncooperative. As noted above, there is no evidence before the Tribunal to show that the visa applicant has been adopted by her sister.

10. The Tribunal finds that the applicant is a sister of a person holding the prescribed Partner visa. The Tribunal is not satisfied that the visa applicant is a child of a visa holding parent. The applicant does not meet cl. 445.211.

    DECISION

11. The Tribunal affirms the decision under review.

    Kira Raif
    Senior Member