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

1. 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).

2. 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).

3. 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.

4. 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. 

5. 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.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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

9. 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.

10. 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].

11. 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.

12. 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. 

13. 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. 

14. On 12 April 2024 the Tribunal wrote to the applicant inviting him as well as the sponsor to provide DNA evidence of the claimed biological relationship.  The applicant accepted the invitation to provide DNA evidence that same day.

15. On 1 May 2024 the Tribunal received correspondence from DNA Labs.  The Parentage Testing Procedure Report dated 1 May 2024 stated that parentage testing procedures were carried out between 26 April 2024 and 30 April 2024.  The report stated the sponsor was 6,178,445,160 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the population.  This equated to a Relative Chance of Paternity of 99.99999998%.

16. The Tribunal is satisfied therefore that the sponsor is the biological father of the applicant. 

17. The applicant was under the age of 18 years at the time of application, being born on 26 July 2005.  He was 14 years and 3 months old at the time of application on 25 October 2019. 

18. At the Tribunal’s hearing of 12 June 2024 the applicant stated he was not, and had never been either married or in a de facto relationship.  The Tribunal accepts the claim.

19. The Tribunal accepts the applicant is a ‘dependent child’ of his father the sponsor, who is an Australian permanent resident and an eligible person, as defined in reg. 1.03 at the time of application and the time of decision.   

20. The Tribunal notes an applicant for a Child visa who is under 18 years is a ‘dependent child’ merely by fact of their age and does not require consideration of whether they are also ‘dependent’ within the meaning of reg 1.05A. Where an applicant was under 18 at the time of application they are also assessed at time of decision as if still under the age of 18, regardless of whether they have since turned 18.   

21. Accordingly, cl 802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.

22. For the reasons above, the criteria in cl 802.212 and cl 802.221(1) are met.

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

24. 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

25. 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 Owen
    Deputy President

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     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.

    …