Sun (Migration) [2022] AATA 1925 (28 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Yini Sun
REPRESENTATIVE: Ms Vivian Halisai Lim (MARN: 1463692)
CASE NUMBER: 2104541
HOME AFFAIRS REFERENCE(S): CLF2018/368324
MEMBER:Steven Griffiths
DATE:28 January 2022
PLACE OF DECISION: Adelaide
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 802.215(b) of Schedule 2 to the Regulations; and
·cl 802.221(1) of Schedule 2 to the Regulations; and
·cl 802.225 of Schedule 2 to the Regulations; and
·cl 802.226 of Schedule 2 to the Regulations.
Statement made on 28 January 2022 at 3:50pm
CATCHWORDS MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child criteria – approved sponsorship – legal permission for child’s removal – consent from biological father – Agreement Concerning Maintenance Relationship Alteration – renouncement of all parental rights – decision under review remitted
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 March 2021 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, Miss Yini Sun, applied for the visa on 21 December 2018 on the basis of her relationship with the sponsor, Mrs. Victoria Chen Toyama, who is her mother. 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 case include cl 802. cl 802.225 and if public interest criterion 4017 has been met.
The delegate refused to grant the visa on the basis that cl 802.225 was not met because they did not accept that the biological father of the applicant had given permission for the applicant to migrate permanently.
The parties were represented by their migration agent Vivian Lim, of V Migration Pty. Ltd.
The sponsor appeared before the Tribunal on 28 January 2022 to give evidence, respond to questions and present arguments, with the visa applicant, who is 12 years old, also providing oral evidence. The migration agent took part in the hearing.
The Tribunal resolved to provide the parties with the opportunity to forward a letter from the biological father of the applicant,…
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.
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AGLC
Sun (Migration) [2022] AATA 1925
Case
[2022] AATA 1925
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Miss Sun, a child born in China in 2009. The sponsor was Mrs. Toyama, who had arrived in Australia in 2013 and was granted permanent residency in January 2018. The applicant's biological father resided in China and was imprisoned from late 2019. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa.
The primary legal issue before the Tribunal was whether the applicant qualified as a "dependent child" under the Migration Regulations 1994, specifically in accordance with clause 802.212 and regulation 1.03. This involved assessing whether the applicant was reliant on the sponsor for financial support to meet basic needs, or incapacitated for work, as defined by the regulations and interpreted by case law such as *Huynh v MIMA* [2006] FCAFC 122. The Tribunal also considered the implications of an "Agreement Concerning Maintenance Relationship Alteration" provided by the applicant's parents.
The Tribunal noted that the applicant was under 18 at the time of application and that the sponsor was an Australian permanent resident. While the definition of "dependent child" includes those under 18, the Tribunal considered the broader context of dependency and the evidence presented, including a letter from the biological father and the maintenance agreement. The Tribunal concluded that the matter should be remitted for reconsideration, finding that the applicant met several specified criteria for the Subclass 802 visa, including clause 802.212(1)(a).
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa. BACKGROUND OF THE EVIDENCE Applicant Miss Sun was born in China in 2009. She is the daughter of the sponsor, with the biological father living in China and in prison for 7 years from late 2019. She arrived in Australia 3/11/18, after being granted a Visitor 600 Visa on 9/1/18 and to cease 3/2/19. Sponsor Mrs. Toyama was born in China in 1985. She was married, to the father of the applicant, from 08/2008 to 10/2014. She arrived in Australian 17/10/13, having been granted a Student 573 Visa 11/10/13 and to cease 30/11/15. She is married to an Australian citizen, with whom she has a son, born 10/2016, and was granted a Partner 820 visa and Partner 801 Visa on 12/1/18.INFORMATION TO THE TRIBUNAL Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Review application, 10/4/21Applicant Movement Record, 10/12/21Migration Agent submission, not datedCertificate of No Criminal Record of biological father of applicant, 30/10/19Sponsor statement, 9/4/20Applicant parents Agreement Concerning Maintenance Relationship Alteration, 22/8/21Sponsor payroll details confirming income, January 2022Applicant Australian school information, 2021 and 2022Applicant submission, 21/1/227 photos of the applicant with family and friendsTranslated letter from biological father of applicant referring to daughter living in AustraliaDependent child criteria 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 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. 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]. The Tribunal accepts the documented evidence of the sponsor being an Australian permanent resident from 12/1/18. The Tribunal notes the applicant was born on 4/3/09 and was 9 years old at the time of the visa application.
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 Tribunal has considered the information contained in the Department file, the information provided by the applicant to the Tribunal prior to the hearing, the oral evidence from the hearing and documented evidence following the hearing. ISSUE The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa. BACKGROUND OF THE EVIDENCE Applicant Miss Sun was born in China in 2009. She is the daughter of the sponsor, with the biological father living in China and in prison for 7 years from late 2019. She arrived in Australia 3/11/18, after being granted a Visitor 600 Visa on 9/1/18 and to cease 3/2/19. Sponsor Mrs. Toyama was born in China in 1985. She was married, to the father of the applicant, from 08/2008 to 10/2014. She arrived in Australian 17/10/13, having been granted a Student 573 Visa 11/10/13 and to cease 30/11/15. She is married to an Australian citizen, with whom she has a son, born 10/2016, and was granted a Partner 820 visa and Partner 801 Visa on 12/1/18.INFORMATION TO THE TRIBUNAL Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Review application, 10/4/21Applicant Movement Record, 10/12/21Migration Agent submission, not datedCertificate of No Criminal Record of biological father of applicant, 30/10/19Sponsor statement, 9/4/20Applicant parents Agreement Concerning Maintenance Relationship Alteration, 22/8/21Sponsor payroll details confirming income, January 2022Applicant Australian school information, 2021 and 2022Applicant submission, 21/1/227 photos of the applicant with family and friendsTranslated letter from biological father of applicant referring to daughter living in AustraliaDependent child criteria 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 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. 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].
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 802.212(1)(a) of Schedule 2 to the Regulations; and·cl 802.215(b) of Schedule 2 to the Regulations; and·cl 802.221(1) of Schedule 2 to the Regulations; and·cl 802.225 of Schedule 2 to the Regulations; and·cl 802.226 of Schedule 2 to the Regulations.Steven GriffithsMemberATTACHMENT – 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.…