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

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).
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).
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.
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).
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.
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.
In addition to oral evidence presented at hearing, the…

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 Robinson (Migration)

Details

AGLC: Robinson (Migration) [2022] AATA 2793
Case: [2022] AATA 2793
Decision Date: 29 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child applicant sponsored by his father, an Australian permanent resident. The dispute arose when the Department of Home Affairs refused to approve the sponsorship, finding that the sponsor and his spouse had failed to provide the requested police clearance certificates from various countries where they had resided for a cumulative period of 12 months or more within the last 10 years. The Tribunal was asked to determine whether the sponsor met the requirements for sponsorship approval under regulation 1.20KB and clause 802.226 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to assess whether the sponsor and his spouse had complied with the Department's requests for police clearances, particularly in light of the sponsor's explanation regarding the nature of his employment as an aviation consultant and aircraft engineer, which involved frequent international travel. The core legal issue was whether the sponsor's inability to provide the requested clearances, due to the extensive and transient nature of his overseas travel for work, constituted a failure to meet the requirements of regulation 1.20KB, thereby preventing the sponsorship from being approved.

The Tribunal found that the sponsor and his spouse had provided Australian Federal Police clearance certificates. However, the Department had requested further police clearances from countries where they had lived for a total of 12 months or more in the last 10 years. The sponsor explained that due to his work, he had visited numerous countries for short periods, making it practically impossible to obtain police clearances from all of them. The Tribunal accepted that the sponsor had made genuine efforts to compile the necessary information but highlighted that the regulations allowed the Minister to request such clearances. Crucially, the Tribunal noted that the sponsor's spouse had provided an AFP clearance certificate under an alias, which was subsequently accepted. The Tribunal concluded that the sponsor had met the requirements of clause 802.226, as the provided AFP clearance certificates were sufficient in the circumstances, and the sponsor's spouse had provided her AFP clearance.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria under clause 802.226 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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.

Decision

Reasons for decision

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 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 MartellottaMember

Ratio Decidendi

Legal Principle Established

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