Sukaputri (Migration)

[2019] AATA 3288

Sukaputri (Migration) [2019] AATA 3288 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Gotamy Sukaputri

CASE NUMBER:  1709748

DIBP REFERENCE(S):  CLF2016/57914

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

·cl.802.214 of Schedule 2 to the Regulations; and

·cl.802.221(2)(a)(i) of Schedule 2 to the Regulations; and

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

STATEMENT MADE ON 06 MARCH 2019 AT 2:55PM

CATCHWORDS

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

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2 cls 802.212, 802.214, 802.221

CASES

Huynh v MIMA [2006] FCAFC 122
Sok v MIMIA [2005] FMCA 190         

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 September 2016, Miss Gotamy Sukaputri, the applicant, applied for a Child (Residence) (Class BT) visa.  The application was based on her relationship with her 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 and cl.802.214 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 23 January 2019, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Susi Rosmini and Weisaka 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 her 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 dependent of the sponsor who is of an Australian citizen, holder of a permanent visa or an eligible New Zealand Citizen. The second issue is whether, the visa applicant was undertaking full-time study at the time of application and at the time of this decision and if not whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1997 in Jakarta, Indonesia.  She declared that her father Mr Banyo Kamajaya Wong died in January 2006. On 27 June 2016, she 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 that Mr Wong is the father of Gotamy, the applicant and also of Weisaka, her brother. 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 Mr Al-Khater, her sponsor’s visa had been cancelled. This decision was set aside and on 3 September 2018, the Administrative Appeals Tribunal substituted a decision not to cancel Ms Rosmini’s visa. 

   CLAIMS AND FINDINGS

   Dependent child criteria

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

11. 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, 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.

12. 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].

13. 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.

14. 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.

    Is the applicant the dependent of the sponsor?

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

16. At the time of application the applicant had not provided any evidence to support her relationship with the sponsor or her 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 or between the applicant and Mr Wong.  It provided the applicant additional time to provide the relevant information.

17. Since that time the applicant provided the Tribunal with a certified copy of a birth certificate issued by the Rumah Sakit Pluit Hospital. This records the sponsor as the mother of the applicant and Drs. W. Banyo Kamajaya as her father. DNA evidence is also provided and demonstrates that the sponsor is the putative mother of the applicant. A 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.

18. 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. Miss Sukaputri told of living with her father until his death.  She stated that the sponsor came to Australia in 2009. After the sponsor departed the applicant lived with her brother and their aunts and their families in the Philippines.  She said that she was and is financially supported by the sponsor who sent money to the aunts who then provided for her.  She said that when she turned 17 the sponsor sent the money to her and she managed financial matters for herself and her brother. The Tribunal has been provided evidence of the sponsor sending money to the applicant during the relevant time.

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

20. Accordingly, cl.802.212(1)(a) is met at the time of application and cl.802.221(2)(a)(i) is met at the time of decision.

    Additional criteria for applicants over 18

21. At the time of application the visa applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied if, at the time of application, the visa applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221.

22. The criterion in cl.802.214 essentially requires that at the time of application:

    (1)  If the applicant has turned 18:

    (a)  the applicant:

    (i)  is not engaged to be married; and

    (ii)  does not have a spouse or de facto partner; and

    (iii)  has never had a spouse or de facto partner; and

    (b)  the applicant is not engaged in full-time work; and

    (c)  subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

    (2)  Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

    These requirements must continue to be met at the time of decision.

23. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

    CLAIMS AND FINDINGS

    Is the visa applicant incapacitated for work?

24. There is no evidence before the Tribunal that at the time of application or this decision, the applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Has the applicant ever had a partner or been engaged in full-time work?

25. There is no evidence before the Tribunal that at the time of application or this decision, the applicant has ever had a partner or been engaged in full-time work.

    Was the visa applicant undertaking full-time study?

26. Prior to and at the Tribunal hearing information has been provided in support of the visa application as follows.

27. The Tribunal considered the information about the applicant’s study.  It is satisfied that the applicant completed high school in 2015. After this she commenced study at the University of Indonesia. She studied there for a year before coming to Australia. She then studied for the IELTS exam.  On 12 August 2017, she was awarded a Certificate III in Health Services Assistance. In January 2018, she commenced full-time study as a nursing student.  She continues in that study and will complete this course in June/July 2019.  It is her intention to continue studying nursing at university.

28. The Tribunal is satisfied that since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

29. Accordingly, cl.802.212(1)(a) is met at the time of application and cl.802.221(2)(a)(i) is met at the time of decision.

30. Accordingly, cl.802.214 is met at the time of application, and cl.802.221(2)(b) continues to be met at the time of decision.

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

    DECISION

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

    ·cl.802.214 of Schedule 2 to the Regulations; and

    ·cl.802.221(2)(a)(i) of Schedule 2 to the Regulations; and

    ·cl.802.221(2)(b) 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.

    …