Soemali (Migration)

[2021] AATA 568

Soemali (Migration) [2021] AATA 568 (25 January 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Anjea Nette Shantel Soemali

CASE NUMBER:  1922018

HOME AFFAIRS REFERENCE(S):          CLF2018/8825

MEMBER:  Russell Matheson

DATE:  25 January 2021

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:

·Regulation 1.20KB.

Statement made on 25 January 2021 at 5:09pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – approved sponsorship – sponsorship limitation – evidence of charge or conviction – police check – Australian Federal Police (AFP) National Police Certificate – no disclosable court outcomes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.20KB; Schedule 2, cls 802.215, 802.226

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 30 July 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 31 January 2018. 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).

1. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (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.802.226 because the sponsorship in cl.802.215 had not been approved.

1. The applicant seeks review of the delegate’s decision.

1. No hearing was held in this case as the Tribunal was able to make a favourable determination on the materials before it in accordance with s.360(2)(a) of the Act.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In the present case the visa application is not supported by a letter of support from a State or Territory government welfare authority and therefore 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. At the time of decision, this sponsorship must have been approved and still be in force: cl.802.226.

1. Regulation 1.20KB limits the Minister’s discretion to approve sponsorships. Regulation 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

1. 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

1. Sub-regulations 1.20KB (11) and (12) say:

Evidence of charge or conviction

(11)    To determine whether a sponsor, or the spouse or de facto partner of a sponsor, has been charged with, or convicted of, a registrable offence, the Minister may request the sponsor, or the spouse or de facto partner of the sponsor, to provide a police check from:

(a)a jurisdiction in Australia specified in the request; or

(b)    a country, specified in the request, in which the sponsor or the spouse or de facto partner has lived for a period, or a total period, of at least 12 months.

(12)    In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:

(a)    the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

(b)    the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.

Application details

1. In the present case the application for the visa included the applicant’s birth certificate, which stated that her date of birth is 15 February 2002, making her 16 years-old on the day this application was lodged. This information confirmed that the applicant is under 18 years of age. Accordingly, the applicant was under 18 years of age at the time of application.

1. The applicant is sponsored by her parent (father), David Sahidin SOEMALI. Departmental records show that the sponsor has spent more than 12 months in Australia in the last 10 years.

1. In response to question 34 of the Form 40CH - Sponsorship for a child to migrate to Australia, the sponsor only declared that he resided in Australia from February 2004 to December 2017.

1. According to Departmental records, the sponsor has spent more than 12 months outside of Australia in the last 10 years.

1. At question 37 of the Form 40CH the sponsor advised he is in a partner relationship with Rebecca Ann NG.

1. In response to question 53 of the Form 40CH the sponsor declared that his partner had resided in Australia from August 1983 to December 2017.

1. According to Departmental records, the sponsor’s partner has spent more than 12 months outside of Australia in the last 10 years.

1. The following information was requested from the sponsor and the sponsor’s partner:

·An Australian Federal Police (AFP) National Police Certificate from the sponsor and the sponsor’s partner;

·Police clearance from each country where both parents have lived for a total of 12 months or more in the last 10 years (calculated accumulatively) and;

·Undertake health examination.

1. At the date of the delegate’s decision AFP police clearances for the sponsor and the sponsor’s partner had not been received and as a result the visa application was refused.

1. AFP National Police Certificates dated 30 October 2020 for the sponsor and 11 November 2020 for the sponsor’s partner have now been provided. The certificates state that there are no disclosable court outcomes for the sponsor and the sponsor’s partner.

1. Accordingly, the requirements in r.1.20KB are met.

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

DECISION

1. 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:

   ·Regulation 1.20KB

Russell Matheson Member

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.

…