Sukaputera (Migration)

[2019] AATA 3294

Sukaputera (Migration) [2019] AATA 3294 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weisaka Sukaputera

CASE NUMBER:  1709749

DIBP REFERENCE(S):  CLF2016/57921

MEMBER:Helena Claringbold

DATE:6 March 2019

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. cl.802.212(1)(a) of Schedule 2 to the Regulations; and

·cl. cl.802.221(1)(a) of Schedule 2 to the Regulations.

STATEMENT MADE ON 06 MARCH 2019 AT 3:12PM

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – financial support by the sponsor – school studies – decision under review remitted       

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2 cls 802.212, 802.221, 802.225

CASES

Huynh v MIMA [2006] FCAFC 122    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 September 2016, Mr Weisaka Sukaputera, the applicant, applied for a Child (Residence) (Class BT) visa.  The application was made on the basis of his relationship with his mother Ms Susi Rosmini, the sponsor.

2. On 19 April 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not meeting cl.802.212 (1) (a) and cl.802.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. 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).

4. On 27 February 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Rosmini and Miss Gotamy Sukaputri. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department’s file and the Tribunal’s file and the evidence provided at the Tribunal hearing.

   ISSUE

7. The first issue in this case is whether, the applicant is the child of the sponsor who is an Australian citizen, holder of a permanent visa or an eligible New Zealand Citizen and therefore meet cl.802.212(1)(a). The second issue is whether the visa applicant can satisfy Public Interest Criteria (PIC) 4017 and 4018 therefore meet cl. 802.225 to the Regulations.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1999 Jakarta, Indonesia.  He declared that his father, Mr Banyo Kamajaya Wong is deceased.  On 27 June 2016, he entered Australia as the holder of a visitor visa which ceased on 22 October 2016. 

9. The sponsor was born in 1969 in Bogor, Susi, Indonesia.  At the time of application, she declared that she was in a spousal relationship with Mr Farhat Omar Al Hadher. She told the Tribunal that on 29 December 1996 she religiously married Mr Wong and remained in a relationship with him until his death on 2 January 2006. The sponsor claims Mr Wong to be the father of Weisaka, the applicant and also of Gotamy, his sister.

10. On 21 October 2011, the sponsor lodged a combined partner visa application. On 30 October 2014, she was granted a partner residence visa. On 8 June 2017, the partner residence visa was cancelled, consequentially because her sponsor, Mr Al-Khater’s visa had been cancelled. The decision to cancel Mr Al-Khater’s visa was set aside by the Tribunal, differently constituted.  This resulted in the Tribunal substituting a decision not to cancel Ms Rosmini’s visa. 

    CLAIMS AND FINDINGS

    Dependent child criteria

11. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a dependent child of an eligible person:

12. 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 r.1.03 of the Regulations. 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.

13. 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].

14. Dependent child has the meaning given by regulation 1.03

    Dependent child of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a 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 bodily or mental functions.

15. At the time of application the applicant had not provided any evidence to support his relationship with the sponsor or his father Mr Wong. The Tribunal told the applicant that there was little independent information before it about the relationship between Mr Wong and the sponsor and between the applicant and Mr Wong.  It provided the applicant additional time to provide the relevant information.

16. Since that time the applicant provided the Tribunal with a certified copy of a birth certificate issued by the Pantai Indah Kapuk Hospital. This records the sponsor as the mother of the applicant and W. Banyo Kamajaya as his father. DNA evidence is also provided and demonstrates that the sponsor is the putative mother of the applicant. A certified certification of death record for the applicant’s father records his name as, Wong, Banyo Kamajaya, formerly, Wong Ban Njan.  A death record informs that W Banyo Kamajaya died on 2 January 2006. Other information related to records of house registration and school records was also provided.

17. The sponsor told the Tribunal that she married Mr Wong in 1996 and they lived together for ten years. She claimed that Mr Wong’s family did not approve of her marriage. Mr Sukaputera told of living with his father until his death.  He stated that the sponsor came to Australia in 2009. After the sponsor departed,  the applicant lived with his sister and their aunts. He said that he was and is financially supported by the sponsor who sent money to the aunts who then provided for him. Later the sponsor sent the money to his sister who managed financial matters for him. The Tribunal has been provided evidence of the sponsor sending money to the applicant during the relevant time.

18. On the evidence before the Tribunal, it accepts that the applicant is the son of the sponsor and that at the time of application the applicant was a dependent child of the sponsor who is an Australian permanent visa holder. Therefore the applicant meets cl.802.212(1)(a) of Schedule 2 to the Regulations.

19. The Tribunal will go on to consider whether the applicant is dependent on the sponsor at the time of decision.

20. Dependent has the meaning given by regulations 1.05A

    (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  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.

21. There is no evidence that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions.

22. The evidence before the Tribunal is that the applicant’s financial is reliant on the sponsor to meet his basics needs for food, clothing and shelter.  From November 2016 to June 2017, the applicant attended high school as a full time student undertaking an intensive English course.  In July 2017, the applicant enrolled in high school. On 14 September 2018 the principal of the school wrote that the applicant was enrolled in year 11.  Academic records inform that the applicant continued as a full time student completing semester two of year 11 in December 2018. The Tribunal is satisfied that the applicant is yet to finish year 11 and the equivalent of year 12 in the Australian school system.

23. On the evidence before the Tribunal, it is satisfied of the following, that the applicant has been substantially reliant on the sponsor prior to and at the time of decision and that the applicant’s reliance on the sponsor was for a substantial period immediately before and continued at the time of decision. The financial support being provided to the applicant met his basic needs for food, shelter and clothing and his reliance on the sponsor is greater than his reliance on any other person or source of financial support to meet those basic needs.

24. Therefore at the time of decision the applicant satisfies cl.802.221(1)(a) of Schedule 2 to the Regulations.

    Public Interest Criteria 4017 and 4018

25. Clause 802.225 requires that if the applicant has not turned 18, PIC 4017 and PIC 4018 are satisfied in relation to the applicant.

    ·PIC 4017 - the Minister is satisfied of one of the following that the law of the applicant’s home country permits the removal of the applicant, or each person who can lawfully determine where the applicant is to live consents to the grant of the visa, or the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

    ·PIC 4018 – The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

    ·Home country is defined in r.1.03 of the Regulations, relevant to this matter, as the country of which the person is a citizen.

26. The Tribunal is satisfied that at the time of this decision, the applicant has turned 18 and therefore cl.802.225 of Schedule 2 to the Regulations is not applicable to the applicant.

    DECISION

27. 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. cl.802.212(1)(a) of Schedule 2 to the Regulations; and

    ·cl. cl.802.221(1)(a) of Schedule 2 to the Regulations.

    Helena Claringbold
    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 who is engaged to be married or has a spouse or de facto partner), being a 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 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.

    …