Singh (Migration)

[2023] AATA 4438

Singh (Migration) [2023] AATA 4438 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Kunel Kartic Singh

REPRESENTATIVE:  Mr Avinesh Kumar (MARN: 0401261)

CASE NUMBER:  1936444

HOME AFFAIRS REFERENCE(S):          CLF2019/22147

MEMBER:Kira Raif

DATE:14 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 14 November 2023 at 1:41pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – sponsorship requirements – holder of a temporary visa at the time of the application – court-granted custody of child – definition of ‘step-child’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.212, 802.215

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 12 December 2019 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 is a national of Fiji, born in November 2001. He applied for the visa on 7 May 2019. The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied the sponsorship requirements were met. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. 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).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. 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.

   Sponsorship requirements

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant’s birth certificate identifies his biological mother as Sandiya Priya Pal and his biological father as Jagendra Singh. On the application form the applicant also stated his biological parents were Sandiya Priya Pal and Jagendra Singh.

8. The applicant was sponsored in the application by Ms Vikashni Radhika Lal. He provided with the application a copy of the marriage certificate between the sponsor Ms Vikashni Radhika Lal and his biological father Jagendra Singh, as well as a copy of the Fijian Court order allowing the applicant’s father to take the child overseas. The delegate notes that in the application form, the sponsor stated that the applicant’s father Jagendra Singh is a temporary resident and a holder of the Subclass 820 visa. The applicant told the Tribunal that his father has since been granted a permanent visa but it is not in dispute that he was a holder of a temporary visa when the applicant made the application.

9. As Mr Jagendra Singh was a holder of a temporary visa at the time of the application, he was not an Australian citizen or holder of a permanent visa and there is no evidence to indicate Mr Singh is an eligible New Zealand citizen. The Tribunal is not satisfied cl.802.212(1)(a) is met.

10. The Tribunal finds that in this case, the sponsorship form was completed by Ms Vikashni Radhika Lal and Ms Lal was the one who made the sponsorship undertakings. The applicant identified Ms Lal as his sponsor when making the application.

11. There is no suggestion that the applicant is the biological child of Ms Lal. As Ms Lal is married to the applicant’s father, the applicant is the step-child of the sponsor and he is seeking to meet the requirements of cl. 802.212(1A).

12. To meet cl. 802.212(1A), the applicant must be the child of the person’s former spouse or de facto partner. In the present case, the evidence is that Ms Lal and the applicant’s father Mr Singh are in an ongoing spousal relationship. That is, the applicant is the child of the parent’s (father’s) present spouse and not his former spouse or former de facto partner. As such, the applicant does not meet paragraph (b) of the definition of step-child. The Tribunal is not satisfied that the applicant meets cl. 802.212(1A). The Tribunal finds that the applicant does not meet cl. 802.212.

13. The Tribunal acknowledges the applicant’s submission of 18 September 2023 which provided a copy of the Order of the Magistrates Court in Fiji granting ‘residence’ of the visa applicant to Ms Lal and permitting her to take the child out of jurisdiction. The Tribunal has not verified the authenticity of that document. Putting aside the fact that the court order appears to grant custody of a child over 18, rather than parental rights, to the sponsor the Tribunal notes that the order is dated February 2020, nearly a year after the visa application was made. That order does not establish that Ms Las was a parent of the applicant (rather than a step-parent) when the application was made. The order does not assist the applicant in meeting the time of application criterion in cl. 802.212.

14. There is no evidence before the Tribunal that the applicant is an orphan relative. In particular, there is no evidence that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the applicant meets the definition of ‘orphan relative’ in r. 1.14. The applicant  does not meet cl. 837.213 of the Regulations.

    Conclusion

15. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif
    Senior Member