Robinson (Migration)

[2022] AATA 2793

Robinson (Migration) [2022] AATA 2793 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Kai John Robinson

CASE NUMBER:  2018072

HOME AFFAIRS REFERENCE(S):          CLF2019/105554 

MEMBER:Maxina Martellotta

DATE:29 June 2022

PLACE OF DECISION:  Perth

DECISION:    

The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802. 226 of Schedule 2 to the Regulations.

Statement made on 29 June 2022 at 3:12pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant and his spouse had already provided AFP clearance certificates – applicant’s sponsorship is approved and still in force – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.20KB, Schedule 2, cl 802.226

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 4 December 2020 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 17 December 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).

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 802.226 which requires that the sponsorship mentioned in clause 802.15 has been approved by the Minister and is still in force.

4. The delegate refused to grant the visa on the basis that cl 802.226 was not met because Regulation 1.20KB has not been satisfied by the sponsor as he had not provided police clearance certificates as required by sub-regulation 1.20KB (12)(b).

5. The sponsor is the visa applicant’s father and is also the authorised recipient for the visa applicant.  The sponsor appeared before the Tribunal on 14 June 2022 to give evidence and to make submissions.  The visa applicant did not appear.

6. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. In addition to oral evidence presented at hearing, the evidence before the Tribunal included the Department of Home Affairs file relating to the visa application.  Post hearing the sponsor provided further documents which the Tribunal has considered in making this decision.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. As the visa application is not supported by a letter of support from a State or Territory government welfare authority, the applicant does not meet cl 802.215(a) and must meet the requirements in cl 802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person. At the time of decision, this sponsorship must have been approved and still be in force: cl 802.226.

10. Regulation 1.20KB imposes limitations on approval of sponsorship for a Child (Residence) (Class BT) visa. Sub-regulation (11) provides that the Minister may (amongst other things) request the sponsor and or the spouse of the sponsor to provide a police check from a specified country in which the sponsor has lived for a period or total period of at least 12 months. Sub-regulation (12) provides that the Minister may refuse to approve the sponsorship if the Minister has requested a police check for the sponsor and the sponsor does not provide the police check within a reasonable time.

11. Based upon the evidence presented at hearing and Department documents provided the Tribunal makes the following findings of fact:

    a)The visa applicant was born in 2005 and is under 18 years of age.

    b)The sponsor was born in 1966 he is the visa applicant’s father and an Australian permanent resident. The sponsor has a spouse Shancie Hng Robinson.

    c)On 24 June 2020 the Department wrote to the sponsor and the sponsor’s spouse requesting that they each provide an Australian Federal Police (AFP) clearance certificate and also a Police clearance from each country where they have lived for a total of 12 months or more in the last 10 years (calculated accumulatively).

    d)The Department followed up this request on 23 July 2020 and on 13 August 2020.

    e)On 14 August 2020 the Department received an AFP clearance certificate for the sponsor’s spouse in the name of Shanice Hng Robinson with an alias of Pek Siew H’NG.

    f)On 25 August 2020 the sponsor provided the Department with an AFP clearance certificate in his name.

    g)On 3 September 2020 the Department requested the sponsor and his spouse provide a new AFP clearance certificate for the sponsor’s spouse including her aliases Pek Siew HNG and Pek Siew H NG as well as a police clearances from each country where they have lived for a total of 12 months or more in the last 10 years (calculated accumulatively).

    h)In response the sponsor sought clarification of the request having advised that his work as an aviation consultant and aircraft engineer meant that the only times he has spent offshore from Australia were work related and had not otherwise lived permanently anywhere else other than Australia for the last 10 years. As such, it would be impossible to obtain police clearances from the multitudes of countries I have visited often for only overnight layovers over the last 10 years. Can you please advise how best to proceed from here?

    i)On 2 October 2020 the Department advised that they required police clearances from countries that the sponsor had spent 365 cumulative days in over the previous 10 years and could the sponsor provide a breakdown of each country visited and time spent in each country over the last 10 years.

    j)The sponsor contacted the Department on 12 November 2020 advising that he was attempting to compile a log but due to the nature of his work this was taking a considerable amount of time given the number of countries visited.

    k)The delegate determined that as the requested information had not been supplied then the sponsor did not meet the requirements of regulation 1.20KB and as a consequence did not meet clause 802.226.

12. The sponsor provided the following evidence:

    a)He had attempted to comply with the Department’s requests, but it was very difficult to compile a list of countries as requested.

    b)He and his spouse have resided in Australia since 2009.  He is an aviation engineer and whilst based in Australia his work requires him to travel extensively overseas.

    c)The usual pattern of work travel is that he would be home for about two weeks then he would usually travel out to Hong Kong and from there would travel to different countries for 10 days to two weeks (sometimes longer up to three week) at a time to consult with clients before returning home.

    d)He has not lived in any of those countries. He and his wife moved to Australia from Hong Kong in March 2009. They are permanent residents. Australia has been their home ever since.

    e)His spouse would spend time out of Australia to visit family in Malaysia two or three times a year for about two or three weeks.

    f)They would otherwise travel outside of Australia on occasions to visit his family in the United Kingdom.

    g)They live in a home that they purchased in 2010. They hold their assets and financial resources in Australia.

    h)He and his spouse had already provided AFP clearance certificates and was confused as to why the Department required further AFP certificates for his wife.

    i)His son is 16 years of age. The visa applicant is his biological son and the stepson of his spouse.  The visa applicant’s mother lives in Japan. His son was living with him and his spouse in Australia when the visa application was made. Since then, his son has returned to Japan where is currently living with his mother but still wishes to proceed with the visa application.

13. Post hearing the sponsor provided the tribunal two spreadsheets summarising countries the sponsor had his spouse have visited either for work (in the sponsor’s case) or for holidays.  The sponsor said that he had done his best to compile these records from travel planners and documents that he had retained from work records. The sponsor also provided an AFP clearance certificate for his spouse which included the alias’s requested by the Department.

14. The Tribunal is satisfied on the presented evidence including documents previously provided to the Department and documents provided to the Tribunal as part of this review, that the sponsor has met the requirements of Regulation. In this regard the Tribunal notes that on the evidence it is satisfied that the sponsor’s main purpose for travel during the relevant period was in his case predominately work related apart from holidays. The provision in regulation 1.20KB (11) provides that the Minister may request a police check from a country specified in the request in which the sponsor or the sponsor’s spouse has lived for a period or total period of at least 12 months.

15. In this case the Tribunal notes that the Department did not specify in their request a country (or countries) and further an in any event on the evidence the tribunal is satisfied and  finds that the applicant did not live in any other country as he has been resident in Australia since March 2009. [1] The Tribunal notes that regulation 1.20KB (11) does not provide a definition of the term ‘lived’. The term is to be given its natural meaning.[2]

    [1] The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’

    [2] The Macquarie Dictionary defines ‘lives’ as to ‘dwell or reside” as noted the term usually reside has been determined by authorities. accessed 29 June 2022

16. In this matter the Tribunal is satisfied on the documents provided which included birth certificate for the child in support of the visa application and provided to the Tribunal that:

    a)The sponsor has completed the sponsorship application form and has made relevant undertakings.[3]

    b)At the time of application, the applicant is sponsored by a person who has turned 18 who is the holder of a permanent visa and that the visa applicant is a dependent child of a person who is the holder of a permanent visa.[4]

    c)On the basis of the above, the sponsorship is approved and still in force at the time of decision.

    [3] Form 40CH signed by the sponsor dated 16 December 2019

    [4] Cl, 802.212 (1).

17. Accordingly, the requirements in cl 802.226 are met.  Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.226 of Schedule 2 to the Regulations.

    Maxina Martellotta
    Member