Trinidad (Migration)

[2020] AATA 5779

Trinidad (Migration) [2020] AATA 5779 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rustom Daniel Trinidad

CASE NUMBER:  1909478

HOME AFFAIRS REFERENCE(S):          CLF2018/171519

MEMBER:Moira Brophy

DATE:25 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 25 September 2020 at 9:36am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – subject to s.48 of the Act – whether the applicant has become a dependent child of the sponsor –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 65

Migration Regulations 1994, r 1.03, cl 802.211

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 5 April 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 June 2018. 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 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, cl.802.226A), the criteria to be met in this case include cl.802.211.

4. The delegate refused to grant the visa on the basis that cl.802.211 was not met because the applicant had last applied for a Graduate (Subclass 485) visa on 4 May 2018. That application was refused, and he applied for a Child (Subclass 802) visa on 25 June 2018 on the basis he was the ‘dependent’ child of his sponsor. Because at the time he lodged his 802 application he was not the holder of a substantive visa, s.48 of the Act applies. He is therefore required to meet the requirements of cl.802.211 and he is required to show he has become the ‘dependent’ child of his sponsor since he last applied for a substantive visa. The delegate found he was not able to meet these requirements.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant gave evidence by telephone on 21 July 2020. The Tribunal also received oral evidence from Ms Maria Perpetua Singzon, who is the applicant’s aunt.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

9. The applicant is a 25-year-old male. He is a citizen of the Philippines. His parents reside in Australia and he has one brother residing in the Philippines.

10. The applicant arrived in Australia on 3 February 2015 on a Student visa. On 4 May 2018 he applied for a Temporary Graduate (Graduate Work) Subclass 485 visa. That application was refused on 31 May 2018 because the delegate found it had been filed more than six months after the completion of his Commercial Cookery course. On 25 June 2018 the applicant applied for a Child (Residence) (Class BT) Subclass 802 (Child) visa.

11. At the time of application, the applicant stated he was financially supported by his mother. In the period from October 1994 to June 2018, she had been making a financial contribution of $300 per week (folio 10 DIAC file). He also stated he had been employed in the period from November 2015 to May 2016 as a kitchenhand at the Hogs Breath Café. In the period from 9 August 2016 to the time of application, he had been employed for 20 hours per week at the Botanic Garden restaurant. He was paid $300 per week for this work.

12. In a statutory declaration provided to the Tribunal dated 16 July 2020, the applicant attested as to his circumstances in the period from May 2017 to May 2018. He stated during this period he had received some financial support from the sponsor, but that support had not been substantial. He said that while bank statements provided were indicative of her having transferred $12,400 into his account, he was now able to show only $5,100 had actually been received into his account. He went onto say that since he arrived in Australia on 3 December 2015, he had stayed with his aunt and she had provided substantial assistance to him. She had provided him with food and accommodation, and it was estimated that benefit had a monetary value of $150 per week. Therefore, in the period from May 2017 to May 2018, his aunt had provided financial support in the amount of $7,800. He went on to say his aunt had also obtained a loan in the amount of $8,000 on 6 July 2016 and from these funds she had paid his tuition fees of $6,600 and $801 for associated miscellaneous costs. The applicant also stated in the period from May 2017 to May 2018, he had worked as a part time chef earning $30,772.56. He had used these earnings to pay for clothing, transportation, food and personal needs. He said his mother’s contribution had been limited because she only became a permanent resident on 2 October 2017.

13. The sponsor (mother of the applicant) had come to Australia on 30 May 2013 on a Student (Subclass 572) visa. She is presently working in Northern Territory as a permanent resident having been granted an Employer Nomination Scheme (Subclass 186) visa on 26 October 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The Tribunal has taken into consideration, individually and as a whole, the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

    ISSUE

15. The issue in this case is whether the applicant since last applying for a substantive visa while in Australia has become a dependent child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand citizen.

    Does s.48 of the Migration Act 1958 (the Act) apply?

16. 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.

17. The applicant arrived in Australia on a Student (Subclass 572) visa on 18 February 2015. He departed Australia on 13 January 2018 and returned on 4 February 2018. On 4 May 2018 the applicant applied for a Graduate (Subclass 485) visa. On 31 May 2018 that application was refused. On the same day the applicant’s Student (Subclass 572) visa ceased. On 25 June 2018 the applicant applied for a Child (Subclass 802) visa.

18. The Tribunal is satisfied at the time of this visa application on 25 June 2018 the applicant was not the holder of a substantive visa and had not departed Australia since the refusal of the application for a Graduate visa. Therefore, s.48 of the Act applies to the applicant.

19. Clause 802.211(b) of Schedule 2 to the Regulations requires that since the applicant last applied for a substantive visa, he has ‘become’ a dependent child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand citizen.

20. The relevant period therefore is 4 May 2018 when he applied for his Graduate visa until the time of lodgment of this application being 25 June 2018.

    Dependent child

21. '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.

22. 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].

23. The definition of ‘dependent child’ means a child or stepchild who has not turned 18. By law, the applicant is deemed to be a dependent child of his biological parents until he becomes 18 years old. As the applicant is under 18, there is no test of dependency and he is taken to be dependent on the sponsor.

24. The Tribunal told the applicant and sponsor that it must consider whether the applicant has become a dependent child of the sponsor since last applying for a substantive visa. This issue was discussed with him at the time of hearing.

25. At the time of hearing, the applicant stated his employment had ceased in July 2018. He used the $300 he had earned while employed to pay for his lunch, his transportation and his clothing. He said that since his employment had ceased, he had been fully dependent on his mother. He then said he had been fully dependent on his mother since July 2010. He said she had last transferred $400 to him the week prior to the hearing.

26. When asked about the period prior to July 2018, he said he had not received substantial support from his mother as she had herself been a student and was not able to support him. The Tribunal discussed with the applicant that his evidence now was not consistent with the information he gave at the time of application and that the only change had in fact been that he had learned of the requirements applicable to his application because of the s.48 requirement.

27. The applicant said it had always been his aunt who was meeting his expenses and providing for his needs. The applicant said bank statements provided showed in the period from May 2018 to December 2018 there had been transfers of $9,950 from his mother and that for the previous year she had transferred $5,100. The applicant submitted this was indicative of a change and was supportive of his contention that in the relevant period he had become a dependent of the sponsor.

28. The aunt of the sponsor, Ms Singzon, told the Tribunal that she had sponsored her sister (the sponsor) to Australia and her sister had previously borrowed monies from her, and while she has repaid some of those monies she still owes her an amount of $27,000. She said she had five bank accounts and she had reconciled all her accounts and realised after speaking with her sister that monies her sister transferred to her were in fact for payment of pre‑existing loans and not for the financial support of the applicant. Ms Singzon said she had requested her sister to take over the financial support of the applicant in May 2018 as she no longer had the capacity to do this. She said her sister had then transferred $11,000 to pay his tuition fees at Macquarie University.

29. The Tribunal carefully considered the bank statements of the sponsor provided at the time of application and was satisfied her earnings had been relatively consistent in the period from July 2017 to December 2017. Those statements were not corroborative of the submission made by the applicant that his mother’s ability to contribute had been limited by the fact she was not a permanent resident unit October 2017. While the Tribunal appreciates there can be a fluidity in financial arrangements in families, the Tribunal was not persuaded on the evidence there had been a change in the financial arrangements between the applicant’s mother and his aunt to support a contention that the applicant had previously been a dependent of his aunt and had become a dependent child of the sponsor since 4 May 2018 when his application for a Graduate visa had been lodged.

30. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Moira Brophy
    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.

    …