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

1. 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’).

2. 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).

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 instance include cl 802.226, which requires that sponsorship has been ‘approved by the Minister’.

4. 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. 

5. 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.

6. 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 4 September 2020, and some information was provided in response to that request, however some additional information remained outstanding. Another request for information was made by the Department on 15 October 2020, and the sponsors were afforded a further 28 days from the date of that letter to provide the requested information. However, as at the date of making the decision (8 December 2020) the requested information was still not available. As such, as at the date of making the decision, the Delegate could not be properly satisfied regarding these mandatory matters under regulation 1.20KB, meaning that the visa could not be ‘approved by the Minister’ under clause 802.226 in the manner that was required in order for Adan to be granted the visa.

7. This application for review was subsequently filed before the Tribunal on 27 December 2023, however was unable to be constituted to a Tribunal Member for a hearing until 5 July 2023.  The matter was finally heard by the Tribunal on 15 August 2023. Adan Stephen appeared before the Tribunal on 15 August 2023, as did both his parents Ms Faga Harieta Stephen and Mr Silao Palupe.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. 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.

12. 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. 

13. 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

14. 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

15. 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.

16. 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].

17. The Applicant Adan Patrick Stephens was born on 5 July 2003 and was aged 17 when the application for the visa was commenced.  He is now aged 20, and continues to reside at home as the dependent child of his parents.  The Tribunal is satisfied regarding the circumstances of Adan’s dependency on his parents.  Accordingly, cl 802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

18. At the time of application, the applicant must not have turned 25. However, 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 total or partial loss of bodily or mental functions: cl 802.212(1)(b), (2).

19. At the time of visa application Adan Stephens was aged 17.  As at the date of this decision Adan is now aged 20. Accordingly, cl 802.212(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Step-child

20. If the applicant is a step-child of the Australian citizen, permanent visa holder or eligible New Zealand citizen mentioned in cl 802.212(1), the applicant must be a step-child within the meaning of paragraph (b) of the ‘step-child’ definition in reg 1.03, which is extracted in the attachment to this decision: cl 802.212(1A).

21. Adan who was born in Fiji, is the biological child of his Mother Faga Harieta Stephen, who in 2005 married Mr Silao Palupe, who is an Australian citizen.  Accordingly Adan is the ‘step-child’ of Mr Silao Palupe in accordance with the definition in regulation 1.03 both at the time of application for the visa and as at the date of the Tribunal’s decision. Accordingly, cl 802.212(1A) is met at the time of application, and continues to be met at the time of decision.

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

    DECISION

24. 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 Williams
    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.

    …