SAMARAWICKRAMA VIDHANA ARACHCHILAGE (Migration)

[2017] AATA 1649

SAMARAWICKRAMA VIDHANA ARACHCHILAGE (Migration) [2017] AATA 1649 (5 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wasantha SAMARAWICKRAMA VIDHANA ARACHCHILAGE

VISA APPLICANT:  Mr Champika Madusanka Dias Amaratunga Arachchige

CASE NUMBER:  1613751

DIBP REFERENCE(S):  2015039355

MEMBER:Kira Raif

DATE:5 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211(1)(a) of Schedule 2 to the Regulations; and

·cl. 101.213 of Schedule 2 to the Regulations

Statement made on 05 September 2017 at 12:56pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Study requirements – Dependent child of an Australian citizen – Applicant under 18 at time of application – Dependent child of the sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 101.211, cl 101.213, cl 101.221

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 on 22 June 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Sri Lanka, born in October 1997. He applied to the Department of Immigration for the visa on 23 April 2015. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the applicant met the study requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 19 June 2017 and 5 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s spouse. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Relevant law  

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211 and cl. 101.213.

5. At the time of application, the visa applicant who has turned 18 must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

6. The visa applicant must also be a dependent child of an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen – cl. 101.211(1)(a).

   Does the applicant meet the study requirements?

7. The delegate found that the applicant did not meet cl. 101.213. However, the Tribunal notes that the visa applicant was born in October 1997 and the application for the visa was made in April 2015, when the visa applicant was 17 years of age. The Tribunal notes that cl. 101.213 only applies to visa applicants who had turned 18 at the time the application was made. As the visa applicant had not turned 18, the Tribunal finds that he meets cl. 101.213.

8. The Tribunal has considered whether the applicant is a dependent child of the sponsor.

9. In oral evidence to the Tribunal the review applicant said that since he married his wife in 2011, he had been sending money to the visa applicant and continued to do that since his wife came to Australia in 2013. The review applicant provided to the Tribunal evidence of several money transfers he made to the visa applicant and the Tribunal accepts that the sponsor has been providing financial support to the visa applicant.

10. The review applicant said that the visa applicant used to live with his mother but since her migration to Australia, he has been living with his maternal grandparents. The review applicant said the money is handed to the visa applicant’s grandparents who are responsible for managing the visa applicant’s daily expenses. The review applicant explained that the money that he sends is then used to pay rent, for food, travel and other expenses. The review applicant said the visa applicant’s grandparents have no other income.

11. The Tribunal found the review applicant to be a truthful witness and accepts his evidence. There is documentary evidence that the review applicant made transfers to the visa applicant. The Tribunal accepts that the grandparents manage the funds due to the visa applicant’s young age and such funds are used for the visa applicant’s basic needs, including shelter (through the payment of rent), food and clothing. The Tribunal accepts they have no other source of income.

12. The review applicant’s evidence to the Tribunal is that the visa applicant received some income while undertaking the apprenticeship. The review applicant’s evidence is that the visa applicant’s income during that period was about 15,000 rupees a month while the amount he sent to the child was about 50,000 rupees a month. The Tribunal is satisfied that the visa applicant’s reliance on the sponsor for his basic needs of food, shelter and clothing was greater than his reliance on any other source.

13. The Tribunal is satisfied that at the time the application was made, the visa applicant, who was under the age of 18, was dependent on the sponsor. The sponsor was a holder of a permanent visa at the time of the application. The Tribunal finds that the applicant is a dependent child of a permanent resident and had not turned 25. He meets cl. 101.211(1)(a).

    Conclusion

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

    DECISION

15. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211(1)(a) of Schedule 2 to the Regulations; and

    ·cl. 101.213 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member