Ocampo (Migration)

[2024] AATA 2237

Ocampo (Migration) [2024] AATA 2237 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Abigail Olay Ocampo

REPRESENTATIVE:  Mr Frank Lanza

CASE NUMBER:  1928643

HOME AFFAIRS REFERENCE(S):          CLF2018/211912

MEMBER:James Lambie

DATE:14 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 14 June 2024 at 11:45am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant was not a dependent child within the meaning of Regs 1.03(b)(ii) and 1.05A(1)(b) – applicant failed to attend tribunal hearing – applicant has turned 18 – could not be satisfied that the applicant had received financial support over the relevant period from the sponsor – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 362

Migration Regulations 1994, rr 1.03,1.05 cl 802.212

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 20 September 2019 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 14 September 2018. 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 was not met because the applicant was not a dependent child within the meaning of Regs 1.03(b)(ii) and 1.05A(1)(b)

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

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Hearing

7. On 15 May 2024, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 14 June 2024. The letter advised that if she did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review.

8. On 22 May 2024, the applicant’s representative emailed the Tribunal to advise that he attempted to contact the applicant numerous times by email and telephone and had been unsuccessful.

9. On 7 June 2024, the Tribunal sent a hearing reminder to the applicant by SMS to the telephone number provided in the application for review. There was no response to this message.

10. The applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The applicant failed to provide any reasonable explanation as to why she could not attend at the scheduled time. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

11. Accordingly, this matter has been determined on the evidence available to the Tribunal

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the definition of ‘dependent child’ for the purposes of cl 802.212, by reference to Regs 1.03 and 1.05A .

    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 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.

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].

16. The Visa application the subject of this application was lodged on 14 September 2018. Included with the application was a copy of her Philippines passport and birth certificate showing her date of birth as for October 1998. She was therefore aged 19 years on the date of lodgement of the visa application.

17. In the Visa application, the applicant named her sponsor as her main source of financial support, declaring that the sponsor provided emotional and financial support for food, clothing and shelter, and also gave her $150 per week for her bills, clothing, education, health and other items. She declared that the period of support was from October 1998 to the time of lodgement. She also gave details of other sources of financial support, declaring that the sponsor transferred money to the applicant’s stepmother for various expenses, and that this money was transferred to trusted family members and friends when the sponsor was unable to transfer money to the stepmother.

18. With the application, the applicant submitted a statutory declaration from the sponsor, dated 11 October 2018, in which stated that accommodation and care in the Philippines was provided by the applicant’s father, but that the financial support came from the sponsor. A bundle of copies of financial remittances were included, showing payment of amounts ranging from $100 to $2987.05 to a variety of recipients.

19. The applicant’s migration agent made submissions, dated 13 September 2018, that the applicant had been residing with her father in the Philippines, that the father provided accommodation and security but had not been able to provide for her other financial need because he was not working, and that the financial and emotional support for the applicant came from the sponsor.

20. On 9 August 2019, the Department wrote to the applicant seeking her comments in relation to information provided in respect of her visitor (subclass 600) visa application. It was noted in the letter that the applicant had provided evidence that she has been financially supported by her father in the Philippines, who funded her visit to Australia, including travel costs. Copies of financial records were provided in support of this claim. It was put to the applicant that this information conflicted with the information provided in the child visa application that her father did not work and that she was principally dependent on her mother, the sponsor.

21. On 6 September 2019, the applicant responded to the Department letter, including her statutory declaration dated 5 September 2019, in which she declared that she had not provided misleading information with the visitor visa, nor the child visa application. She claimed that her father’s circumstances had changed, that he had been hospitalised with a serious health condition, had closed his business, was insolvent, and was not in a position to support the applicant. Medical reports and bank statements were attached. She also provided receipts from her stepmother, in which the stepmother acknowledged receipt of funds from three of the persons named in the attachments to the statutory declaration described at paragraph 17 above. The applicant claimed that she resided with her father in the Philippines but was financially supported by the sponsor and the sponsor’s partner by transferring money to various people, to be passed on to the stepmother. It was claimed that this support was for a period of 12 months prior to the lodgement of the child visa application.

22. The delegate noted that the applicant had not explained why funds were not directly transferred to her father in the Philippines, and that little weight could be given to the purported evidence that the stepmother received the funds from the sponsor, because of the generic and informal nature of the receipts. Accordingly, the delegate could not be satisfied that the applicant had received financial support over the relevant period from the sponsor.

23. Because the applicant did not appear before the Tribunal to give evidence or provide arguments, there is no material before the Tribunal to suggest that the delegate’s conclusion was incorrect. An assessment of the material on the Department’s file does not admit of any alternative conclusion. Accordingly, the applicant cannot satisfy the requirements of Regs 1.05(1)(a)(i) and 1.05(1)(a)(ii). There is no suggestion that the applicant is wholly or substantially dependent on the sponsor due to an incapacity to work caused by total or partial loss of his bodily or mental functions for the purposes of Reg 1.05(1)(b).

24. Accordingly, the applicant does not meet Reg 1.05(1)(a) or Reg 1.05(1)(b) and therefore does not meet the definition of dependent within the meaning of Reg 1.05. Because she does not meet Reg 1.05, she does not meet Reg 1.03. Consequently, she does not meet the definition of dependent child and cannot meet the requirements of cl 802.212.

25. Accordingly, cl 802.212(1)(a) is not met at the time of application.

26. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    James Lambie
    Senior 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.

    …