Singh (Migration)

[2020] AATA 5047

Singh (Migration) [2020] AATA 5047 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ekjot Singh
Mr Shingara Singh

CASE NUMBER:  1830519

DIBP REFERENCE(S):  CLF2014/73278 CLF2017/112276

MEMBER:Denis Dragovic

DATE:23 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Child (Residence) (Class BT) visas.

Statement made on 23 September 2020 at 3:45pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan Relative) – holder of a substantive visa – application validly made within 12 months – parents unable to provide care – applicant’s father included in application – child born in Australia as a non-citizen – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 128, 140
Migration Regulations 1994, Schedule 2, cls 837.212, 837.311; Schedule 3; r 2.08

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 27 September 2018 to refuse to grant the applicants Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 November 2017. At that time, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of the Subclass 837 visa.

3. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.837.212 which requires that the applicant is the holder of a substantive visa or they can satisfy Schedule 3 criterion 3002. Criterion 3002 requires that an application is validly made within 12 months after the relevant day.

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.837.212(iii) of Schedule 2 to the Regulations because the applicant’s last held substantive visa was cancelled on the 3 May 2010 whereas the application was made on the 21 November 2017.

5. The s.c.837 visa allows a child who is single and already in Australia stay with a relative if their parents are dead, can't care for them or can't be found. The applicant is a 11-year-old child. The second named applicant is his father.

6. The applicants were invited to appear before the Tribunal on 8 September 2020 to give evidence and present arguments. The Tribunal received a hearing response form signed by the applicant’s father that stated that the applicants will not participate in the hearing and instead consent to the Tribunal making a decision on the papers.

7. Instead, a submission was made by the representative acknowledging that the applicants do not meet the criteria for the s.c.837 visa. The submission noted that the applicant is now an Australian citizen and was instead asking for the Tribunal to consider referring the case for Ministerial Intervention as the applicant’s father, the second named applicant, is without a visa that would allow him to remain in Australia to support the first named applicant. As such this decision has two parts, the first engages with the matter at hand, namely the applicants’ s.c.837 visa followed by consideration of whether to refer the case for Ministerial Intervention.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   SUBCLASS 837 APPLICATION

9. The applicants applied for a s.c.837 visa. A criteria to be satisfied at time of application is cl.837.212 which includes either that the applicant is the holder of a substantive visa (other than a s.c.771 visa) or if not, immediately before ceasing to hold a substantive visa was not holding a s.c.771 visa and the applicant satisfies Schedule 3 criterion 3002.

10. For schedule 3 criterion 3002 to be satisfied the application needs to have been made validly within 12 months after the relevant day.

11. The relevant day is defined in subclause 3001(2)(a)-(d). For the applicant the relevant day is the last day the applicant held a substantive visa. This requires a review of the applicant’s visa history which was outlined in the delegate’s decision record and provided to the Tribunal by the applicant.

12. The applicant was born in Australia on the 21 September 2009. As noted by the delegate, s.78 of the Act states that if a child is born in Australia as a non-citizen and at the time of the birth the parents hold a visa other than a special purpose visa then the child is taken to have been granted, at the time of the birth, a visa of the same kind and class. Relevantly, r.2.08(d) states that ‘the child's application is taken to be combined with the non-citizen's application.’

13. As such the parent’s status at the time is relevant. The parents were holders of s.c.572 visas at the time the applicant was born. As such the applicant is taken to have been granted a s.c.572 visa and it is taken that the applicant’s visa was combined onto that of the parents.

14. The visa for the applicant’s mother was cancelled under s.128 on the 3 May 2010 after having departed Australia on 19 February 2010. The applicant’s father was cancelled on the same day, but he remained in Australia. Despite the applicant’s birth only being disclosed to the department on 9 February 2012 when the applicant was named in an application for a s.c.808 visa, which is for former holders of a Norfolk Island immigration entry permit, the applicant’s s.c.572 visa that he was taken to have held from birth would be taken to have been cancelled at the same time as his parent’s under s.140.

15. Section 140 as it read on 3 May 2010 states:

    If a person's visa is cancelled under section 109 (incorrect information), 116 or 128 or 137J (student visas) a visa held by another person because of being a member of the family unit of the person is also cancelled.

16. For this reason, the applicant’s s.c.572 visa was cancelled on the 3 May 2010. The applicant has not held a substantive visa since.

17. Considering that the applicant’s last substantive visa was from 2010 and criterion 3002 requires that the application needs to have been made validly within 12 months after the relevant day, being the last day the applicant held a substantive visa, the applicant must have applied by the 2 May 2011. The applicant applied for the visa on the 21 November 2017.

18. As the applicant does not meet subclass 3002 the application fails on cl.837.212(b). The applicant does not meet cl.837.212(a) either as he was not the holder of a substantive visa at the time of application.

19. For these reasons, the criteria for the grant of a Subclass 837 visa to the first named applicant are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 802).

20. I have also considered the application of the second named applicant. The criteria to be met by secondary applicants is listed under division 837.3 and includes cl.837.311(b) which requires that on the basis of the information provided in the application the primary applicant satisfies the criteria for the visa in subdivision 837.21.

21. Subdivision 837.21 includes cl.837.212 which I have found not to have been met by the primary applicant. As such the second named applicant does not meet cl.837.311. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 802).

    DECISION

22. The Tribunal affirms the decisions not to grant the applicants Child (Residence) (Class BT) visas.

    CONSIDERATION OF REQUEST FOR MINISTERIAL INTERVENTION

23. I have chosen not to refer the case for Ministerial Intervention.

    Denis Dragovic
    Senior Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Schedule 3

    3001

    ….

    (2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3002

    The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).