Quelino (Migration) - [2024] AATA 3647

Quelino (Migration) [2024] AATA 3647 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Changco Jr Quelino
REPRESENTATIVE:  Mr Sanjib Karmacharya (MARN: 1791460)
CASE NUMBER:  2015562
HOME AFFAIRS REFERENCE(S):          CLF2019/65124
MEMBER:Margie Bourke
DATE:3 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 03 October 2024 at 6:34am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – limited financial dependence – applicant in full-time work – gap in full-time studies – effect of the COVID19 pandemic – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.216, 802.221, 802.226; rr 1.03, 1.05
CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
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 7 October 2020 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 4 November 2019. 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 time of application criteria to be met in this case include cl.802.212 and cl.802.214, and time of decision criteria to be met include cl.802.221.
The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied that the applicant was a dependant child within the meaning of reg 1.05A, and reg.1.03.
The applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, who was also the sponsor in relation to the visa which was the subject of the review.
The applicant was represented in relation to the review, but the representative did not attend the hearing. The applicant and his father indicated they did not expect the representative to attend the hearing, and wished the hearing to proceed as scheduled.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Quelino (Migration)

Details

AGLC: Quelino (Migration) [2024] AATA 3647
Case: [2024] AATA 3647
Decision Date: 3 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who was over 24 years of age. The applicant sought to be recognised as a dependent child of an Australian relative. The core of the dispute revolved around whether the applicant met the criteria for financial dependence at the relevant times.

The Tribunal was required to determine whether the applicant was a "dependent child" as defined by regulation 1.03 of the Migration Regulations 1994 at the time of application and at the time of the decision. Specifically, the Tribunal had to assess whether the applicant, having turned 18, was reliant on his father for financial support to meet his basic needs, and whether this reliance continued to be met at the time of the decision.

The Tribunal applied the principles established in *Huynh v MIMA* [2006] FCAFC 122, which clarified that dependency is a question of fact, requiring the applicant to be relying on the parent for support, rather than a strict necessity for that support. While the Tribunal accepted that the applicant had received financial support from his father for rent, utilities, and food, it also noted that the applicant had part-time employment and purchased his own clothing. Crucially, the Tribunal found that upon completing his studies and obtaining full-time employment in November 2023, the applicant was no longer wholly or substantially financially dependent on his father to meet his basic needs. Consequently, the Tribunal concluded that the applicant did not meet the definition of a dependent child at the time of the decision.

The Tribunal affirmed the decision not to grant the visa, as the applicant failed to satisfy the criteria for a Subclass 802 visa. However, the Tribunal considered the matter appropriate for referral to the Minister for potential discretionary intervention under section 351 of the Migration Act 1958, noting the applicant's genuine dependence and the significant delay in the review process, which had led to the applicant no longer meeting the legislative criteria.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEDependent 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). 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 applicant and his father both gave consistent evidence that the applicant had been financially dependent upon his father since his arrival in Australia in July 2018. The Tribunal is satisfied that the applicant’s father paid for the rent and utility bills for the accommodation, and purchased most of the food. The Tribunal is satisfied that the applicant had part-time work (excluding 2020 and the some of 2021 when his employment was closed due to the pandemic). The Tribunal is satisfied that the applicant purchased his own clothes, or protective clothing was provided by his employer. The Tribunal is satisfied that the applicant contributed to some food purchased for the household, or assisted his father on occasion when required to pay bills. The Tribunal is satisfied based on the evidence of the applicant that he completed his studies in November 2023 and obtained full-time employment in the career of his field of study, namely electrical appliance technician in November 2023. The Tribunal is satisfied that the applicant has not been totally or substantially financially dependent on his father, or on any other person or source of support to meet his basic needs, since he obtained full-time employment. The Tribunal accepts that the applicant is not dependent within the meaning of reg 1.05A at the time of decision. The Tribunal is satisfied that the applicant is not a dependent child within the meaning of reg 1.03 at the time of decision. Accordingly the Tribunal is satisfied that the applicant, who had turned 18 at the time of application does not continue to satisfy the criterion in cl.802.212 at the time of application. The applicant does not meet the requirements of cl.802.221(2)(a).Criteria for applicants over 18

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.Ministerial Intervention The Tribunal considers this is an appropriate matter to draw to the attention of the Minister, for the potential exercise of discretion under s.351 of the Act. The Tribunal considers that it is unfair and unreasonable that the applicant does not meet the criteria for the visa because of the lapse of four years since the application for review was made. The applicant was a genuine student, dependent on his father, an Australian citizen since 23 August 2023, and completed his full time course of study that led to a career qualification. Due the passage of time before the review was conducted, the applicant obtained his course of study qualification, and obtained full time employment in field of his study. The applicant is recognised as a quality employee by his employer. Therefore the legislation appears to be structured for dependent children and persons over 18 years of age in the applicant’s position applying for the visa.Margie BourkeSenior 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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