Soekadar (Migration) - [2024] AATA 2185

Soekadar (Migration) [2024] AATA 2185 (13 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Isaiah Soekadar
CASE NUMBER:  2118488
HOME AFFAIRS REFERENCE(S):          CLF2019/44990
MEMBER:Deputy President Justin Owen
DATE:13 June 2024
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; and
·cl 802.221(1) of Schedule 2 to the Regulations.

Statement made on 13 June 2024 at 3:45pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of the sponsor – relationship between the sponsor and applicant – birth certificate did not include details of the father – DNA test results – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cl 802.212, 802.221
CASES
Huynh v MIMA [2006] FCAFC 122
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 November 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 25 October 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).
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 802.212.
The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied the applicant was the dependent child of the sponsor.
The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father and sponsor, Mr Du’aine Adetokumbo Ladejo.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is a dependent child of a person who is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
Dependent child criteria
The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Soekadar (Migration)

Details

AGLC: Soekadar (Migration) [2024] AATA 2185
Case: [2024] AATA 2185
Decision Date: 13 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, Subclass 802. The core dispute concerned whether the applicant was the dependent child of the sponsor, an Australian citizen. The delegate had refused the application, finding the claimed familial relationship unproven due to discrepancies in the applicant's birth certificates and a failure to undertake DNA testing when requested.

The Tribunal was required to determine if the applicant met the criteria for a dependent child under the Migration Regulations 1994, specifically whether the applicant was a dependent child of an eligible sponsor and met the age and dependency requirements. The definition of "dependent child" in regulation 1.03 and the test for dependency in regulation 1.05A were central to this determination.

Deputy President Justin Owen reasoned that the delegate's refusal was based on the lack of DNA evidence and the initial absence of the sponsor's details on the applicant's birth certificate. However, the sponsor subsequently provided evidence of a DNA test conducted in 2018 and explained the oversight in responding to the Department's request for further testing. The Tribunal noted the applicant's status as a high-performance athlete with significant future ambitions. Given these circumstances and the unfortunate delay in resolving the matter, the Tribunal concluded that the application should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration, directing that the applicant be assessed against the criteria in cl 802.212 and cl 802.221(1) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is a dependent child of a person who is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. Dependent child criteria The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. 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(1) or (2)(a).Dependent child At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a). ‘Dependent child’ is defined in reg 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. 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]. The Tribunal notes the delegate refused the application on the basis that they were not satisfied the applicant had demonstrated the claimed familial relationship between himself and his named father, the sponsor of the visa. The delegate noted the applicant’s two British birth certificates he provided, the first registered shortly after his birth on 14 September 2005 which did not include any details of his father; and the second registered when he was five years of age on 17 March 2010 which did list the sponsor as his father. The delegate, in refusing the application, noted the applicant and sponsor were invited to undertake DNA testing to demonstrate the biological relationship but had failed to respond. Given the lack of DNA testing and the failure of the applicant’s father and sponsor to appear on his first British birth certificate, the delegate was not satisfied the applicant was the biological child of the sponsor. After applying for review, the applicant’s sponsor Mr Du’aine Ladejo wrote to the Tribunal on 18 November 2021 noting he had inadvertently missed the email of the Department of 12 August 2021. He noted he had already undertaken a DNA test in London in March 2018 in order for the applicant to remain in Great Britain during Brexit. He stated he would have certainly followed the request of the Department to undergo further DNA testing if he had been aware of the email.

Decision

Reasons for decision

At the Tribunal’s hearing the applicant and the sponsor discussed the applicant’s future plans. The applicant completed Year 12 at Narrabeen Sports High in 2023 and is a high performance athlete with significant ambitions in competitive track and field. At the time of the Tribunal’s hearing he had just travelled to London where he will be for some months. The Tribunal notes the applicant is required to be in Australia at the time of the grant of a Child (Residence) (Class BT) visa. The Tribunal, noting the unfortunate set of circumstances that led to the original refusal of the visa some two and a half years ago, would urge the Department to contact the applicant and sponsor to discuss this requirement so the parties have every opportunity to meet the remaining requirements for the grant of the visa. 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; and·cl 802.221(1) of Schedule 2 to the Regulations.Justin OwenDeputy PresidentATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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.…

Ratio Decidendi

Legal Principle Established

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