Rodricks (Migration)

[2022] AATA 1800

Rodricks (Migration) [2022] AATA 1800 (14 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hannah Arthur Rodricks

CASE NUMBER:  2015028

HOME AFFAIRS REFERENCE(S):          CLF2019/29051

MEMBER:Mila Foster

DATE:14 March 2022

PLACE OF DECISION:  Sydney

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 802.212 of Schedule 2 to the Regulations;

·cl 802.215 of Schedule 2 to the Regulations;

·cl 802.221 of Schedule 2 to the Regulations; and

·cl 802.226 of Schedule 2 to the Regulations.

Statement made on 14 March 2022 at 11:40am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa –AFP National Police Certificates provided – Indian Police Clearance Certificates provided – applicant’s sponsorship is approved and still in force – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, rr 1.03, 1.20, Schedule 2, cls 802.212, 802.215, 802.221, 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 19 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act). As the applicant is a child, she was represented in the review her father, Arthur Joachim Rodericks.

2. The applicant applied for the visa on 4 July 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 the applicant’s sponsorship to be approved.

4. The delegate refused to approve the sponsorship and hence the visa pursuant to r 1.20KB(12) because the applicant’s parents failed to provide the police clearance certificates requested by the Department.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant’s sponsorship should be approved. To determine that issue the Tribunal must firstly consider whether the applicant is a dependent child of an eligible person and whether she is sponsored by that person.

8. The Tribunal has before it the Department of Home Affairs file relating to the visa application and additional documents submitted on review.

   Dependent child criteria

9. The criterion in cl 802.212 requires that at the time of application, the applicant is a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a), and is under 25 years of age: cl 802.212(1)(b) or incapacitated for work: cl 802.212(2). ‘Dependent child’ is defined in r 1.03 of the Regulations. 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. 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.

10. The visa application included the applicant’s birth certificate. According to the birth certificate, the applicant was born in India on 30 June 2017. Hence, the applicant had not turned 18 at the time of application or at the time of decision. Given her age she could not be engaged or partnered.

11. According to the birth certificate the applicant’s biological parents are Arthur Joachim Rodericks and Smita Arthur Rodericks. The visa application included copies of visa grant notices issued to the applicant’s parents. According to the notices, the applicant’s father and mother were granted Return (Residence) (Class BB) visas on 17 May 2017 and 9 March 2019, respectively. According to Department movement records accessed by the Tribunal, the applicant’s parents continue to hold a Return (Residence) (Class BB) visas. 

12. Therefore, cl 802.212(1)(a) is met at the time of application and continues to be met at the time of decision. Further, as the applicant had not turned 25 years at the time of application or time of decision, cl 802.212(1)(b) is met and continues to be met at the time of decision. The Tribunal thus finds that the criteria in cls 802.212 and 802.221 have been satisfied.

    Sponsorship

13. 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. Further, the sponsor must be either the person mentioned in paragraph 802.212(1)(a) 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.

14. The visa application included a sponsorship form completed by the applicant’s father sponsoring the applicant for the visa. The visa application included copies of the biodata page of her father’s Indian passport. According to the passport, the applicant’s father was born on 27 December 1979 and hence he had turned 18 at the time of application. Further, her father is an Australian permanent resident and is the person mentioned in paragraph 802.212(1)(a). Hence, the requirements of cl 802.215(b) are satisfied. Accordingly, cl 802.215 is met.

15. The applicant’s sponsorship has not been withdrawn. The Tribunal thus funds that the sponsorship is in force at the time of decision.

16. Regulation 1.20KB of the Regulations restricts the capacity of the Minister (or Tribunal on review) to approve the sponsorship of a Child (Residence) (Class BT) visa applicant, where the applicant is under 18 years of age and the sponsor or the sponsor’s spouse or de facto partner, has been charged or convicted of child sex offences or related serious offences: r 1.20KB(1)-(10). To determine whether a sponsor or the spouse or de facto partner of a sponsor has been charged with or convicted of a registrable offence, the Minister may request the sponsor or the spouse or de facto partner of the sponsor provide a police check from a jurisdiction in Australia or a country in which the sponsor or the spouse or de facto partner has lived for a period or a total period of at least 12 months: r 1.20KB(11). Further, the Minister may refuse to approve the sponsorship of all applicants for a visa if the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner  and that is not provided within a reasonable time: r 1.20KB(12).

17. The applicant’s father stated in the sponsorship form that he and the applicant’s mother were married and in the preceding 10 years they had lived in Australia except for the period from September 2015 to June 2019 when they lived in Pune, Maharashtra, India. On 9 June 2020 the Department wrote to the applicant requesting Australian Federal Police (AFP) National Police Certificates for both her parents and police clearances from each country her parents had lived in for a total of 12 months or more in the last 10 years. In response the applicant’s father provided a National Police Certificate for Arthur Rodricks issued by the Western Australian Police on 24 May 2012, an AFP Police National Police Certificate for Smita Eknath Gaikwad issued on 28 June 2013, a Government of India Police Clearance Certificate for Arthur Joachim Rodricks issued on 1 June 2007, and a Government of India Police Clearance Certificate for Smita Eknath Gaikwad issued on 3 March 2011. On 20 July 2020 the Department informed the applicant that those documents were not acceptable because the National Police Clearance Certificate relating to her father was issued by the Western Australian police not the AFP, the AFP clearance was not in her mother’s current name, and new Indian police certificates relating to the parents were required give they had declared they had lived in India from September 2015 to June 2019. The applicant’s father responded to the Department but did not provide the documents requested.

18. On review the applicant’s father provided the following documents:

    a.AFP National Police Certificates issued on 21 September 2020 stating that there were no disclosable court outcomes recorded against the applicant’s father and mother; and

    b.Indian Police Clearance Certificates issued on 30 September 2020 stating there were no adverse police records relating to the applicant’s parents during the period of their stay in Pune.

19. On the basis of the preceding certificates the Tribunal is satisfied that neither the sponsor (the applicant’s father) nor his spouse (the applicant’s mother) have been charged with or convicted of a registrable offence. The Tribunal thus finds that r 1.20KB does not restrict approval of the applicant’s sponsorship by her father and approves the sponsorship.

20. As the applicant’s sponsorship is approved and still in force the requirements in cl 802.226 are met.

    Conclusion

21. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

22. 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 802.212 of Schedule 2 to the Regulations;

    ·cl 802.215 of Schedule 2 to the Regulations;

    ·cl 802.221 of Schedule 2 to the Regulations; and

    ·cl 802.226 of Schedule 2 to the Regulations.

    Mila Foster
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     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.

    …