Stephens (Migration) - [2023] AATA 2748

Stephens (Migration) [2023] AATA 2748 (15 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Adan Patrick Stephens
CASE NUMBER:  2018443
HOME AFFAIRS REFERENCE(S):          CLF2020/28083
MEMBER:Andrew McLean Williams
DATE:15 August 2023
PLACE OF DECISION:  Brisbane
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 802.226 of Schedule 2 to the Regulations; and
·regulation 1.20KB.
·cl 802.212 and cl 802.221(1)(a).

Statement made on 15 August 2023 at 11:59am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – registrable offence – police check documents – employment in Nauru – fine option order revoked – minor criminal conviction – visa applicant’s dependency on his parents – stepchild of an Australian citizen – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.216, 802.221, 802.226; rr 1.03, 1.05, 1.20
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 8 December 2020 to refuse to grant the Applicant Adan Stephen a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant applied for the visa on 2 July 2020. 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 instance include cl 802.226, which requires that sponsorship has been ‘approved by the Minister’.
Under Regulation 1.20KB, the Minister or the Minister’s Delegate may not approve a visa in this category unless first satisfied that the sponsor for the child Applicant has not been charged with a ‘registrable offence’. These are defined in regulation 1.20KB(13), and are offences in the ‘child protection’ category, as these are variously described in the different State and Territory jurisdictions around Australia.
Under regulation 1.20KB(11), the Minister (or their Delegate) may determine whether a sponsor or their spouse has been charged or convicted with a so-called registerable offence by requiring the sponsoring adult and/or their spouse to provide an official police check document.
In this case, the Delegate refused to grant the visa on the basis that cl 802.226 could not be adequately considered because the Applicant’s sponsors had not provided a police check document for all overseas jurisdictions in which they had lived for more than twelve months within 28 days after these documents had been requested. An initial request was made by the Department on…

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 Stephens (Migration)

Details

AGLC: Stephens (Migration) [2023] AATA 2748
Case: [2023] AATA 2748
Decision Date: 15 August 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, brought by an applicant whose step-parent, Mr Silao Palupe, was an Australian citizen. The primary issue before the Tribunal was whether Mr Palupe had been charged with a registrable offence, which would have prevented the Minister from approving the sponsorship arrangement under regulation 802.226 of the Migration Regulations 1994.

The Tribunal was required to determine whether Mr Palupe's conviction for assault occasioning bodily harm in 1999, which had been dealt with by way of a fine option order that was later revoked due to non-compliance, constituted a registrable offence. The Tribunal also considered the availability of documentation relating to this conviction, including sentencing remarks, and the police checks obtained from Nauru and Fiji for both Mr Palupe and Ms Faga Harieta Stephen, the applicant's mother and Mr Palupe's partner.

The Tribunal reasoned that, based on the evidence presented, including Mr Palupe's testimony regarding the circumstances of the conviction and the charge preferred against him, it was satisfied that Mr Palupe had no convictions for any 'registrable' offences. The Tribunal noted that the Beenleigh Magistrates Court had indicated that records relating to Mr Palupe's conviction had been destroyed due to the age of the matter, and that relevant police certificates from Nauru and Fiji revealed no adverse records.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with a direction that the applicant met the criteria for a Subclass 802 visa, including those relating to sponsorship and dependency.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 a sponsor or spouse or de-facto partner of a sponsor has been charged with a registrable offence. If not, then there is no impediment for the Minister to be able to approve the sponsorship under regulation 802.226 because of regulation 1.20KB(2) which provides that the sponsorship arrangement ‘must’ be refused, if the sponsor has been charged with a registrable offence. Silao Palupe has worked in Nauru on a ‘fly-in-fly-out’ basis working for the Department of Home Affairs as an immigration detention centre officer on Nauru. Accordingly, he has spent extended periods of time in Nauru. Meanwhile, Ms Faga Harieta Stephen is originally from Fiji, and accordingly she has spent more than 12 months resident in Fiji. Many years ago, Mr Silao Palupe also worked as a nightclub bouncer. He has one (1) very minor criminal conviction for assault occasioning bodily harm, occasioned on 21 November 1999. This was dealt with by the Beenleigh Magistrates Court on 28 July 2000, whereupon Mr Palupe was convicted and fined, $500. The fine was later converted into a ‘fine option’ order, on 7 September 2000. Mr Palupe did not comply with the terms of the fine option having completed on 16 hours of the 50 hours community service ordered, and on 16 August 2001 the fine option order was revoked, by the Magistrates Court at Beenleigh. On 15 October 2020 the Department had requested that Mr Palupe provide them with sentencing remarks and other documents referable to his convictions before the Beenleigh Magistrates Court. This was not able to be provided by Mr Palupe before the Delegate made her decision refusing the Applicant’s visa on 30 December 2021. By the time of the hearing before the Tribunal on 15 August 2023 relevant police certificates had been obtained from both Nauru, and Fiji. These reveal that Ms Faga Harieta Stephen does not have any police records of any description in Fiji, and that Mr Silao Palupe has no police records of any type recorded against his name in Nauru. There is also evidence before the Tribunal that Mr Palupe also wrote to the Registrar of the Magistrates Court at Beenleigh seeking further information in the form of any sentencing remarks (etc) referable to his convictions in order to attempt to meet the request sent to him by the Department in their letter dated 15 October 2020. However, there is also a copy of an e-mail dated 27 December 2020 on the Tribunal filed indicating that Mr Palupe had been informed by the Beenleigh Court Registry staff that no records were held by the Court about him or his appearance before that Court as these had since been destroyed, given the age of his matter. The Tribunal questioned Mr Palupe about the circumstances of his conviction for assault occasioning bodily harm, and was informed by him that this had arisen in the context of his working as a bouncer, at licensed premises. On the basis of that evidence, and on the basis of the charge that was preferred against Mr Palupe by the police at the time in 1999, the Tribunal is amply satisfied that Mr Palupe has no convictions for any ‘registrable’ offences. Dependent child criteria

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for 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 802.226 of Schedule 2 to the Regulations regulation 1.20KB cl 802.212 and cl 802.221(1)(a).Andrew McLean WilliamsMemberATTACHMENT – 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

Full text does not contain this section.