Putra (Migration) [2021] AATA 5427 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Gusty Arthanta Putra
CASE NUMBER: 2013830
HOME AFFAIRS REFERENCE(S): CLF2020/10571
MEMBER:Steven Griffiths
DATE:8 December 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Statement made on 08 December 2021 at 2:57pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had not been a continuous full-time student since turning 18 – applicant has turned 18 – applicant has not been enrolled or undertaken any formal study – cl.802.214 does not continue to be met at the time of decision – decision under review affirmed
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 March 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 (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.802.214.
The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the applicant had not been a continuous full-time student since turning 18.
The applicant appeared before the Tribunal on 8 December 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, the mother of the applicant, and Rev Dr. Helen Richmond, a friend of the parties. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the information contained in the Department file, the information provided by the applicant to the Tribunal prior to the hearing and the oral evidence from the hearing.
ISSUE
The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa.
BACKGROUND OF THE EVIDENCE
Mr. Putra was born in Indonesia in 1996 and is the son of the sponsor. He has 2 full siblings, born 2001 & 2005 living in Indonesia,…
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.
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AGLC
Putra (Migration) [2021] AATA 5427
Case
[2021] AATA 5427
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by Mr. Putra. The applicant, born in 1996, sought to join his mother, Ms. Lestari, an Australian permanent resident. The central dispute revolved around whether the applicant continued to meet the eligibility criteria for the visa at the time of the decision.
The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 802.214 of the Migration Regulations 1994, specifically concerning his status as a dependent child. This involved determining if the applicant, having turned 18, remained a dependent child of his mother, considering his enrolment status and any formal study undertaken since reaching that age. The Tribunal also considered the general criteria for a dependent child as defined in regulation 1.03 and the meaning of "dependent" under regulation 1.05A.
The Tribunal found that the applicant had not been enrolled or undertaken any formal study since turning 18. While acknowledging the applicant's personal circumstances and the support provided by various organisations and individuals, the Tribunal concluded that the applicant had not met the criterion that he had not turned 18 or, having turned 18, was dependent on his mother. The Tribunal noted that the applicant had not been a continuous full-time student since turning 18 and had not been enrolled in any formal study.
Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, subclass 802, as the eligibility criteria were not met. No claims were advanced in respect of any other visa subclass within Class BT.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa. BACKGROUND OF THE EVIDENCE Mr. Putra was born in Indonesia in 1996 and is the son of the sponsor. He has 2 full siblings, born 2001 & 2005 living in Indonesia, and 2 half siblings, born 2012 & 2015 living in Australia. He was granted a Visitor 600 Visa on 13/6/18, to cease 3/5/20, and arrived in Australia 19/6/18. He has travelled 4 times between 26/6/18 and 3/2/20, for approximately 392 days and has been on a WA-010 Bridging Visa from 12/3/20. Ms. Lestari was born in Indonesia in 1976 and arrived in Australia on 21/12/12 and has 5 children, with the applicant being her eldest child. Her younger children, born 2012 & 2015, live with her in Australia and she is separated from the father of the children. She was granted a Partner 820 visa on 20/8/13 and Partner 801 Visa on 28/7/14 and is an Australian permanent resident.INFORMATION TO THE TRIBUNAL Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Review application, 10/9/20Applicant Movement Record, 28/10/21Hearing invitation, 28/10/21Sponsor Movement Record, 28/10/21Hearing Response, 5/11/21Statement in support by Rev Dr. Helen Richmond, of Uniting Church, Casuarina, 4/11/21Tanya Davis, Psychologist at MyPsych NT, report of 24/11/21, on the issues the sponsor and children have been through due to actions of estranged husbandNorthern Territory, Domestic Violence Order, 8/10/21, actioned by the sponsor and covering she and her 2 youngest children, on the father of the children, in place for 12 monthsActing CEO, Baptist Care NT / Foodbank NT, letter of support for applicant, 10/5/21Ms. Rebecca Latu, Darwin Aboriginal and Islander Aboriginal Women’s Shelter, letter outlining the support provided to the sponsor and her 2 youngest children, 29/11/21Confirmation from Charles Darwin University dated 1/2/21 that a civil construction course the applicant was interested in has been cancelled. Statement by applicant on the issues that have impacted on his life in Australia, 8/12/21Section 376 Certificate issued by the Minister The Tribunal notes the provision by a Delegate to the Minister for Home Affairs of a Section 376 Certificate issued on 1/10/21 being in place. The Tribunal informed the applicant of the Certificate, which was unable to be provided physically to him as the hearing was conducted by video and advised the applicant it had determined the information covered by the Certificate is not adverse information impacting on the decision to be made by the Tribunal. 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
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has considered the information contained in the Department file, the information provided by the applicant to the Tribunal prior to the hearing and the oral evidence from the hearing. ISSUE The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa. BACKGROUND OF THE EVIDENCE Mr. Putra was born in Indonesia in 1996 and is the son of the sponsor. He has 2 full siblings, born 2001 & 2005 living in Indonesia, and 2 half siblings, born 2012 & 2015 living in Australia. He was granted a Visitor 600 Visa on 13/6/18, to cease 3/5/20, and arrived in Australia 19/6/18. He has travelled 4 times between 26/6/18 and 3/2/20, for approximately 392 days and has been on a WA-010 Bridging Visa from 12/3/20. Ms. Lestari was born in Indonesia in 1976 and arrived in Australia on 21/12/12 and has 5 children, with the applicant being her eldest child. Her younger children, born 2012 & 2015, live with her in Australia and she is separated from the father of the children. She was granted a Partner 820 visa on 20/8/13 and Partner 801 Visa on 28/7/14 and is an Australian permanent resident.INFORMATION TO THE TRIBUNAL Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Review application, 10/9/20Applicant Movement Record, 28/10/21Hearing invitation, 28/10/21Sponsor Movement Record, 28/10/21Hearing Response, 5/11/21Statement in support by Rev Dr. Helen Richmond, of Uniting Church, Casuarina, 4/11/21Tanya Davis, Psychologist at MyPsych NT, report of 24/11/21, on the issues the sponsor and children have been through due to actions of estranged husbandNorthern Territory, Domestic Violence Order, 8/10/21, actioned by the sponsor and covering she and her 2 youngest children, on the father of the children, in place for 12 monthsActing CEO, Baptist Care NT / Foodbank NT, letter of support for applicant, 10/5/21Ms. Rebecca Latu, Darwin Aboriginal and Islander Aboriginal Women’s Shelter, letter outlining the support provided to the sponsor and her 2 youngest children, 29/11/21Confirmation from Charles Darwin University dated 1/2/21 that a civil construction course the applicant was interested in has been cancelled. Statement by applicant on the issues that have impacted on his life in Australia, 8/12/21Section 376 Certificate issued by the Minister The Tribunal notes the provision by a Delegate to the Minister for Home Affairs of a Section 376 Certificate issued on 1/10/21 being in place. The Tribunal informed the applicant of the Certificate, which was unable to be provided physically to him as the hearing was conducted by video and advised the applicant it had determined the information covered by the Certificate is not adverse information impacting on the decision to be made by the Tribunal. Dependent child criteria
Decision
Reasons for decision
For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Steven GriffithsMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or stepchild of the person (other than a child or stepchild who is engaged to be married or has a spouse or de facto partner), being a child or stepchild 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 stepchild’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. …