Raubenheimer (Migration)

[2020] AATA 413

Raubenheimer (Migration) [2020] AATA 413 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dennis Raubenheimer

VISA APPLICANT:  Mr Jordan Douglas Naidoo

CASE NUMBER:  1704766

HOME AFFAIRS REFERENCE(S):          F2016/075819 OSF2016/075819

MEMBER:Peter Smith

DATE:13 February 2020

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 February 2020 at 1:11pm

CATCHWORDS
MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – dependent child of a visa-holding parent – visa applicant’s mother no longer holder of an eligible visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03; 1.05A; Schedule 2, cls 445.111, 445.211, 445.222

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 (the Minister) on 9 January 2017 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) (subclass 445) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. Jordan Douglas Naidoo (the visa applicant) is a citizen of South Africa who was born in Johannesburg on 27 August 1992.  He made a valid application to the Minister on 1 July 2016 for the grant of an Extended Eligibility (Temporary) (Class TK) (subclass 445) visa in which he claimed to be a dependent child of a visa-holding parent, namely his mother, Duane Raubenheimer. 

3. Mrs Raubenheimer, a former citizen of South Africa, was at the time of application the holder of a Partner (Provisional) (Class UF) subclass 309 visa granted on 23 March 2014 on the basis of Ms  Raubenheimer’s spouse relationship with Dennis Raubenheimer, the review applicant and sponsor.  Mrs Raubenheimer was granted a Partner (Migrant) (Class BC) subclass 100 visa on 15 July 2016.

4. The delegate decided to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) (subclass 445) visa under s.65 of the Act because she was not satisfied that the visa applicant was a dependent child of a visa-holding parent at the time of decision.

5. On 14 March 2017 the review applicant made an application to the Tribunal for review of the delegate’s decision to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) (subclass 445) visa.  Attached to his application for review is a copy of the delegate’s Decision Record dated 9 January 2017.

   THE TRIBUNAL HEARING

6. The application for review was heard by the Tribunal on 5 February 2020.  At the hearing the review applicant appeared before the Tribunal via video link without an authorized representative and gave oral evidence and presented arguments in respect of his application for review.  The visa applicant’s mother also appeared before the Tribunal at the hearing.  The visa applicant did not appear before the Tribunal at the hearing.

7. For the following reasons the Tribunal has decided that the decision under review should be affirmed.

   QUESTION FOR DETERMINATION

8. The question for the Tribunal to determine is whether the visa applicant was a dependent child of a visa-holding parent at the time of visa application and whether the visa applicant continues to be a dependent child of a visa-holding parent at the time of decision.

   THE RELEVANT LAW

9. At the time of visa application, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass, namely: subclass 445 Dependent Child visa. At the time of visa applicant, item 1211 of Schedule 1 to the Migration Regulations 1994 (the Regulations) provided for the grant of the visa. At the time of visa application, Part 445 of Schedule 2 to the Regulations set out the criteria for the grant of the visa.

10. Clause 445.211 relevantly provides that at the time of visa application, the visa applicant must be a dependent child of a visa-holding parent. At the time of decision, cl.445.222 requires the visa applicant to continue to be the dependent child of the visa-holding parent.

11. Clause 445.111 provides that for the purposes of Part 445 of Schedule 2 to the Regulations, the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:

    (a)Subclass 309 (Spouse (Provisional));

    (aa)  Subclass 309 (Partner (Provisional));

    (b)  Subclass 310 (Interdependency (Provisional));

    (c)  Subclass 445 (Dependent Child);

    (d)  Subclass 820 (Spouse);

    (da)  Subclass 820 (Partner);

    (e)  Subclass 826 (Interdependency).

12. ‘Dependent child’ is defined in r.1.03 of the Regulations as follows:

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a 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 bodily or mental functions.

13. “Dependent’ is defined in r.1.05A of the Regulations as follows:

    (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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. In conducting this review the Tribunal has had regard to the material on its own file and the material on the file of the Department of Immigration and Border Protection which was provided to the Tribunal after the application for review was filed.

15. At the hearing the Tribunal informed the review applicant that in conducting its review, the Tribunal must apply the same law that was applied by the delegate at the time of application and at the time of the delegate's decision. 

16. The Tribunal informed the review applicant that as Mrs Raubenheimer did not continue to hold a Partner (Provisional) (Class UF) subclass 309 visa at the time of decision, the Tribunal was unable to make a favourable decision on the application for review. 

17. It follows that at the time of decision, the visa applicant’s mother is not a visa-holding parent in accordance with the definition of that term in cl.445.111 and therefore the decision under review must be affirmed. 

18. On the basis of the above findings, the visa applicant does not satisfy the criteria for the grant of a Subclass 445 visa.

    DECISION

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

    Peter Smith

    
    
    

    Member