Thapa (Migration) - [2021] AATA 227

Thapa (Migration) [2021] AATA 227 (8 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Subash Thapa
CASE NUMBER:  1801332
HOME AFFAIRS REFERENCE(S):          CLF2016/86968
MEMBER:Christine Kannis
DATE:8 January 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 08 January 2021 at 6:14am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adult child of sponsor – dependent or incapacitated for work for substantial period before application made – wholly or substantially reliant for financial support – bank statements show salary and amounts from parents – dependent at time of applying for last substantive visa – mental health, alcohol dependency, suicide attempt and student visa refusal – living with parents since hospitalisation – ongoing mental health treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), rr 1.03(1)(b), 1.05A(1), Schedule 2, cls 802.211(b), 802.212
CASES
Cole v MIBP [2018] FCAFC 66
Huang v MIMA [2007] FMCA 720
Vo v Minister for Home Affairs [2019] FCAFC 108
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 2 January 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 November 2016. 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 (the Regulations). The primary criteria must be satisfied by the applicant.
The visa was refused because the delegate found that the applicant did not meet the requirements of cl.802.211 and cl.802.212.
The applicant provided the Tribunal with a copy of the delegate’s Decision Record.
The applicant appeared before the Tribunal by video on 15 December 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of dependent child as required by cl.802.211 and cl.802.212. These are time of application criteria.
Background
The applicant first arrived in Australia on 27 July 2013 as the holder of a Subclass 573 Student visa which ceased on 11 September 2016. On 21 July 2015 he applied for a Subclass 573 Student visa. The visa was refused on 16 November 2015.
On 9 November 2016 the applicant lodged the application for the Subclass 802 (Child) visa, which is the subject of this review. At the time of lodging, the applicant was 28 years of age and held a Bridging visa.…

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 Thapa (Migration)

Details

AGLC: Thapa (Migration) [2021] AATA 227
Case: [2021] AATA 227
Decision Date: 8 January 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802. The applicant, who was 28 years old at the time of application, had arrived in Australia in July 2013 and had not departed since. The applicant’s last substantive visa application for a Subclass 573 Student visa was refused in November 2015, and he subsequently applied for the Subclass 802 visa in November 2016 while holding a Bridging visa. Section 48 of the Migration Act 1958 applied to the applicant due to the prior visa refusal. The sponsor was the applicant’s father, who held a permanent visa at the time of the application.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 802 visa, specifically whether he qualified as a "dependent child" as defined by the Migration Regulations 1994, at the time of his application. This involved determining if he met the requirements of cl.802.211, which included not having had a visa refused or cancelled under s.501 of the Act, and having become a dependent child of the sponsor since applying for his last substantive visa. The definition of a dependent child for an applicant over 18 required them to be dependent on the sponsor or incapacitated for work due to loss of bodily or mental functions.

The Tribunal considered the definition of "dependent" under reg.1.05A, which requires a person to be wholly or substantially reliant on the other person for financial support for basic needs, and for this reliance to be greater than any other source of support, or to be wholly or substantially reliant due to incapacity for work. While the Tribunal found the applicant met the criteria under cl.802.212, it concluded that he did not meet the requirements of cl.802.211. The Tribunal noted that the applicant's bank statements showed salary and amounts from his parents, indicating some financial support. However, the Tribunal found that the applicant had not established that he was wholly or substantially reliant on his sponsor for financial support to meet his basic needs, nor that this reliance was greater than any other source of support, at the time of application. The applicant's history of mental health issues, alcohol dependency, and a suicide attempt, along with living with his parents and receiving ongoing treatment, were noted but did not, in the Tribunal's assessment, satisfy the specific financial dependency criteria under cl.802.211(b) and reg.1.05A.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802, as the applicant failed to meet the necessary criteria under cl.802.211.

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 applicant meets the definition of dependent child as required by cl.802.211 and cl.802.212. These are time of application criteria.Background The applicant first arrived in Australia on 27 July 2013 as the holder of a Subclass 573 Student visa which ceased on 11 September 2016. On 21 July 2015 he applied for a Subclass 573 Student visa. The visa was refused on 16 November 2015. On 9 November 2016 the applicant lodged the application for the Subclass 802 (Child) visa, which is the subject of this review. At the time of lodging, the applicant was 28 years of age and held a Bridging visa. The applicant has not departed Australia since arriving on 27 July 2013. The sponsor is the applicant’s father. At the time of application the sponsor was the holder of a permanent visa which was granted on 6 July 2012 and ceased on 28 June 2017.Cl.802.211 If an applicant does not hold a substantive visa and has had a visa refused or cancelled since their last entry to Australia, they will be subject to s.48 of the Act. This section bars them from applying for another visa while in Australia, except for certain prescribed visa classes, for example Child (Residence) (Class BT) visas. On 21 July 2015 the applicant applied for a Subclass 573 Student visa which was refused. At the time of this visa application on 9 November 2016, the applicant was the holder of a Bridging visa and had not departed Australia since the refusal of the Subclass 573 visa. Therefore, s.48 of the Act applies to the applicant. For this reason, the applicant must meet the requirements of cl.802.211. Clause 802.211(a) requires that the applicant has not been refused a visa or had a visa cancelled under s.501 of the Act. There is nothing to indicate that the applicant has had a visa refused or cancelled under s.501 and the Tribunal is satisfied that he meets cl.802.211(a). Clause 802.211(b) requires the applicant to have become a dependent child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen since applying for his last substantive visa. The definition of dependent child is set out in r.1.03 and if the applicant has turned 18 they must be dependent on that person (r.1.03(1)(b)(i)) or be incapacitated for work due to the total or partial loss of the child’s bodily or mental functions (r.1.03(1)(b)(ii)). Regulation 1.05A(1) says a 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the definition of dependent child as required by cl.802.211 and cl.802.212. These are time of application criteria.Background The applicant first arrived in Australia on 27 July 2013 as the holder of a Subclass 573 Student visa which ceased on 11 September 2016. On 21 July 2015 he applied for a Subclass 573 Student visa. The visa was refused on 16 November 2015. On 9 November 2016 the applicant lodged the application for the Subclass 802 (Child) visa, which is the subject of this review. At the time of lodging, the applicant was 28 years of age and held a Bridging visa. The applicant has not departed Australia since arriving on 27 July 2013. The sponsor is the applicant’s father. At the time of application the sponsor was the holder of a permanent visa which was granted on 6 July 2012 and ceased on 28 June 2017.Cl.802.211 If an applicant does not hold a substantive visa and has had a visa refused or cancelled since their last entry to Australia, they will be subject to s.48 of the Act. This section bars them from applying for another visa while in Australia, except for certain prescribed visa classes, for example Child (Residence) (Class BT) visas. On 21 July 2015 the applicant applied for a Subclass 573 Student visa which was refused. At the time of this visa application on 9 November 2016, the applicant was the holder of a Bridging visa and had not departed Australia since the refusal of the Subclass 573 visa. Therefore, s.48 of the Act applies to the applicant. For this reason, the applicant must meet the requirements of cl.802.211. Clause 802.211(a) requires that the applicant has not been refused a visa or had a visa cancelled under s.501 of the Act. There is nothing to indicate that the applicant has had a visa refused or cancelled under s.501 and the Tribunal is satisfied that he meets cl.802.211(a). Clause 802.211(b) requires the applicant to have become a dependent child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen since applying for his last substantive visa. The definition of dependent child is set out in r.1.03 and if the applicant has turned 18 they must be dependent on that person (r.1.03(1)(b)(i)) or be incapacitated for work due to the total or partial loss of the child’s bodily or mental functions (r.1.03(1)(b)(ii)). Regulation 1.05A(1) says a 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.

Decision

Reasons for decision

Although the Tribunal has found the applicant meets cl.802.212, for the reasons above, the criteria for the grant of a Subclass 802 visa are not met because he does not meet cl.802.211. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Christine KannisMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.