SMITH (Migration)

[2018] AATA 1492

SMITH (Migration) [2018] AATA 1492 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dion Barden Smith

VISA APPLICANT:  Ms Danielle Kim Neethling

CASE NUMBER:  1714430

HOME AFFAIRS REFERENCE(S):           BCC2017/1314219 CLF2018/33324

MEMBER:Moira Brophy

DATE:27 April 2018

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 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 27 April 2018 at 1:50pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa –Biological child of the sponsor – DNA testing – Dependent child over 18 years or over – Unstable living conditions in home country – Financial  and emotional support for a substantial period – Applicant had not finished high school – Evidence of enrolment in other courses – Tribunal remits the application

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05A Schedule 2 cls 101.211, 101.213, 101.221

CASES

Huang v MIMA [2007] FMCA 720
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Zeng v MIMIA [2005] FMCA 546

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 and Border Protection on 29 June 2017 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 applied for the visa on 18 May 2017. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the applicant was the biological child of the sponsor.

5. The review applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Desiree Estelle Smith, mother of the sponsor and from the visa applicant Ms Danielle Kim Neethling.

6. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criterion in cl.101.211 essentially requires that at the time of application, Ms Neethling is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because Ms Neethling has turned 18 (or if already 18, only because Ms Neethling has turned 25): cl.101.221(1) or (2)(a).

   Child-parent relationship

9. At the time of application, Ms Neethling must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

10. The Tribunal has considered the documents on the, including Ms Neethling’s birth certificate, and the report dated 22 August 2017  of DNA testing procedures carried out and is satisfied that Ms Neethling is the daughter of Mr Dion Barden Smith. Mr Smith is an Australian citizen.

11. Therefore, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

    Dependent child criteria

12. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

13. Ms Neethling was born on 26 August 1988 in Africa. She is sponsored by her father, Mr Dion Barden Smith, who is an Australian citizen, for a child (subclass 101) visa. The applicant was 18 years old at the time of application, which was 18 May 2017.

    Dependent child

14. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. 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.

15. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

16. As Ms Neethling had turned 18 at the time of application she does not meet the definition of “dependent child” in r.1.03(a).

17. There is no information before it indicating, and the Tribunal is not satisfied, that Ms Neethling is incapacitated for work due to the total or partial loss of her bodily or mental functions and she therefore does not meet the definition of “dependent child” in Regulation 1.03(b)(ii).

18. The remaining issue is whether Ms Neethling, who is the natural child of Mr Smith, is over the age of 18 years and is dependent on him so as to fall within the definition of “dependent child” in Regulation 1.03(b)(i).

19. “Dependent” is a term defined in Regulation 1.05A. A person is “dependent” on another person if at the relevant time the 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 persons basic needs for food, clothing and shelter and the reliance on the other person is greater than any reliance on any other person, or source of support for financial support or the person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to total or partial loss of the first person’s bodily or mental functions.

20. The Tribunal accepts the oral evidence provided at the hearing that Mr Smith has been providing financial support to Mr Neethling since he resumed his contact with her in 2015. However, r.105A requires that Ms Neethling must be wholly or substantially reliant upon Mr Smith at the relevant time and for a substantial period immediately before the relevant time. In this case the relevant time includes the time of decision.

21. There is no definition in the Regulations of what constitutes a ‘substantial period’, but in the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period (Huang v MIMA [2007] FMCA 720). Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months. In Zeng v MIMIA [2005] FMCA 546 the following factors were identified as relevant to the consideration of whether the dependence was for a “substantial period”:

    ·  the actual period of dependence;

    ·  the reason for the dependence; and

    ·  the extent or nature of the dependence.

22. The Tribunal has had regard to the Departmental policy in this case.

23. At the time of hearing the review applicant told of his financial support for his daughter since 2015. The Tribunal accepts his evidence and finds he has provided support for her both financially and emotionally for a substantial period i.e. period of at least twelve months prior to the application being lodged on 18 May 2017. Mr Smith told the Tribunal of the deterioration in the domestic circumstances where the applicant had previously lived. He told of having to move his daughter out of the home she was living in with her mother and stepfather and of having to find emergency accommodation for her at the home of his mother’s brother and his family. She then had to be temporarily relocated to her half-sisters place because the review applicant’s uncle and family were leaving on a pre-arranged vacation. While it was evident her mother had a long history of alcoholism and mental health issues the home situation was exacerbated by the decision of Ms Neethling to apply to come to Australia to live with her father. As a result of Ms Neethling unstable living conditions she has been placed on medication and is receiving counselling. The review applicant was paying for his daughter to receive this medical treatment as well as all her living costs.

24. The Tribunal is therefore satisfied that Ms Neethling has been wholly or substantially reliant on Mr Smith for financial support to meet her basic needs for food clothing and shelter for a substantial period immediately before the application. It is satisfied Ms Neethling’s reliance on this financial support is greater than her reliance on any other person or source of support.

25. Therefore, the Tribunal is satisfied that Ms Neethling is dependent on Mr Smith within the meaning of r.1.05A.

26. The Tribunal finds that the visa applicant is the dependent children of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. The Tribunal also finds that the visa applicant satisfies the age requirements of cl.101.211(1)(b). Accordingly, the visa applicant meets the requirements of cl.101.211.

    Additional requirements

27. At the time of application, the visa applicant 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).

28. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. 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).

29. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

30. The review applicant Mr Smith told the Tribunal his daughter had not graduated from high school. She had completed Year 11 in 2016 and she had then travelled to Australia on a Visitor’s visa for three months. Given she had not had contact with her father for sixteen years the applicant had wanted to see how the meeting went before committing to living in Australia. Neither the applicant nor her father understood that if the meeting went well she would have to return to South Africa to lodge her application for a permanent visa. With that knowledge and with an intention to abide by the conditions of her visitor visa the applicant returned to South Africa in March 2017. She was then informed by her previous school that the school year had commenced and she was not able to be enrolled in year 12 at that point.

31. The Tribunal was satisfied the applicant had not completed year 12, she had completed year 11 in November 2016 and the issue was therefore whether at the time of application and since turning 18 the applicant was undertaking full time study.

32. Ms Neethling turned 18 on 26 August 2016.

33. According to documentation submitted at the hearing Ms Neethling commenced studying at the Oxbridge Academy in a Basic Accounting course on 29 March 2017 which finished on 30 October 2017. She received a diploma from that course. She was then enrolled at Centurion Campus in a City and Guilds Culinary Arts course in the period from November 2017 but she did not complete her course there. She has enrolled at the Shaw Academy in three short courses since that time and she continues to be enrolled.

34. The Tribunal is satisfied the courses of study undertaken by the visa applicant have been at an educational institution leading to the award of a professional, trade or vocational qualification (cl.101.213)).

35. For the reasons given, the Tribunal finds that the visa applicant meets the requirements of cl.101.221.

    Conclusions

36. For the reasons given above the Tribunal finds the visa applicants satisfy the requirements of cl. 101.211 and cl.101.221.

    DECISION

37. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant and the second named applicant meet the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Moira Brophy
    Member