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

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).
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).
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 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)
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Hearing
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.
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…

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 Ocampo (Migration)

Details

AGLC: Ocampo (Migration) [2024] AATA 2237
Case: [2024] AATA 2237
Decision Date: 14 June 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by the applicant, who was 19 years old at the time of application. The applicant sought to establish that she was a "dependent child" of her sponsor, as defined by the Migration Regulations 1994. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether she qualified as a dependent child under the relevant regulations.

The central legal issues before the court were whether the applicant satisfied the definition of a "dependent child" as set out in regulation 1.03 and regulation 1.05A of the Migration Regulations 1994. This involved assessing whether the applicant was reliant on her sponsor for financial support to meet her basic needs, and whether this reliance was greater than any reliance on other sources of support, at the time the visa application was lodged. The court also considered the impact of the applicant turning 18 on the dependency requirements.

The court reasoned that for the applicant to be considered a dependent child, she needed to demonstrate, as a matter of fact, that she was relying on the sponsor for financial support to meet her basic needs for food, clothing, and shelter, and that this reliance was greater than any reliance on other sources. The applicant's own declarations and the sponsor's statutory declaration indicated a period of financial support. However, the court noted that the applicant had turned 18 and was therefore subject to the stricter criteria for dependency. Crucially, the court found that it could not be satisfied that the applicant had received the requisite financial support from the sponsor over the relevant period, particularly in light of other potential sources of support. The court also noted that the applicant had failed to attend the tribunal hearing.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, finding that the criteria for the visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, this matter has been determined on the evidence available to the TribunalCONSIDERATION OF CLAIMS AND EVIDENCE 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 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]. 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. 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. 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. 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.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not metDECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.James LambieSenior MemberATTACHMENT – 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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