Vosloo (Migration)

[2020] AATA 3613

Vosloo (Migration) [2020] AATA 3613 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Willem Benjamin Vosloo

VISA APPLICANT:  Mr Louis Celliers De Jager

CASE NUMBER:  1913803

HOME AFFAIRS REFERENCE(S):          CLF2019/25523 F2018/030890

MEMBER:Peter Smith

DATE:17 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations;

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 17 August 2020 at 9.52am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – age requirement – child-parent relationship – relationship status and history – not engaged in full-time work – full-time study requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 101.211, 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 (the Minister) on 10 April 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Louis Celliers De Jager (the visa applicant), a citizen of the Republic of South Africa, made a valid application to the Minister on 25 September 2018 for the grant of a Child (Migrant) (Class AH) visa in which he claimed to be the dependent child of an Australian citizen, namely his father and sponsor (the review applicant), Dr Willem Benjamin Vosloo.  The review applicant completed the relevant approved sponsorship form on 12 September 2018 in which he undertook the obligations of a sponsor in respect of the visa applicant’s visa application. 

3. At the time of application, item 1108 of Schedule 1 to the Migration Regulations 1994 (the Regulations) provided for the grant of a Child (Migrant) (Class AH) visa. At the time of application, the Child (Migrant) (Class AH) visa contained three subclasses: 101 (Child), 102 (Adoption) and 117 (Orphan Relative): item 1108(4). In the present case, the visa applicant only makes claims against the criteria for a Subclass 101 (Child) visa.

4. At the time of application, Part 101 of Schedule 2 to the Regulations set out the criteria for the grant of a Subclass 101 (Child) visa.  To be granted a Subclass 101 (Child) visa, the visa applicant must meet each of the criterion set out in Part 101 of Schedule 2 of the Regulations both at the time of application and at the time of decision.  The primary criteria must be satisfied by at least one member of a family unit.  The other members of the family unit (if any) who are applicants for a Subclass 101 (Child) visa need satisfy only the secondary criteria: cl.101.2. 

5. The delegate decided to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa on the basis that cl.101.211 was not met because he was not satisfied on the evidence that the visa applicant was a ‘dependent child’ of an Australian citizen, or the holder of a permanent visa or an eligible New Zealand citizen within the meaning of reg.1.05A of the Regulations. 

   THE TRIBUNAL PROCEEDINGS

6. An application to review the delegate’ s decision to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa was filed in the Tribunal by the review applicant on 31 May 2019. The review applicant attached to his application for review a copy of the delegate’s notification letter and Decision Record dated 10 April 2019.

7. On 20 July 2020, the Tribunal invited the review applicant to appear before the Tribunal by way of telephone at 10.00am on 4 August 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

8. On 21 July 2020, the review applicant informed the Tribunal that he and the visa applicant will not be taking part in the telephone hearing on 4 August 2020.

9. On 23 July 2020, the Tribunal asked the review applicant if he wished to withdraw his application for review or whether he wished for the Tribunal to make a decision in respect of his review based on the evidence currently before the Tribunal.

10. In an email dated 24 July 2020, the review applicant asked the Tribunal to make a decision on the review based on the evidence currently before the Tribunal with specific reference to his letter submitted to the Tribunal on 31 May 2019, a further copy of which was attached to his email.

11. The review applicant was not represented in relation to the review.

12. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. In the present case, the question for the Tribunal to determine is whether at the time of application, the visa applicant is a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.101.211(1)(a), and whether the visa applicant meets the additional criteria in respect of a child who has turned 18 at the time of application.

14. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

15. In conducting this review, the Tribunal has had regard to the material held on the file of the Department of Home Affairs (the Department) and the material held on the file of the Tribunal.

    Age requirement

16. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2).  Applicants who turned 18 at the time of application, must continue to satisfy the dependent child time of application criterion and not have not turned 25, or if they do not satisfy that criterion, it is only because they have since turned 25: cl.101.221(2)(a)(ii).

17. The visa applicant claims that he was born on 5 December 1994.  In support of this claim, the visa applicant provided an extract of his South African Passport.  Relevantly, the extract of the visa applicant’s Passport records the same date of birth that is claimed in the visa application.  The visa applicant is currently 25 years of age.

18. Based on this evidence, the Tribunal is satisfied that the requirements of cl.101.211(1)(b) is met at the time of application and does not continue to be met at the time of this decision only because the visa applicant has turned 25.

19. As the visa applicant has turned 18 at the time of application, he must meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b). 

    Child-parent relationship

20. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

21. There is no evidence at the time of application that the visa applicant is an adopted child or a specific kind of step-child of the review applicant. 

22. The visa applicant claims to be the child of the review applicant who is an Australian citizen.  At the request of the delegate, the applicants agreed to submit DNA samples to determine whether at the time of application the visa applicant and the review applicant were related.  The parentage report provided to the Department concludes that the probability of the visa applicant being the child of the review applicant is substantially high.  On this evidence, the Tribunal is satisfied that the visa applicant is the child of the visa applicant.

23. The visa applicant provided the Department with a sealed copy of the review applicant’s Certificate of Australian Citizenship.  Relevantly, the Certificate provides that the review applicant is an Australian citizen who was granted Australian citizenship on 14 June 2002.  On this evidence, the Tribunal is satisfied that the review applicant was at the time of application, an Australian citizen.

24. Accordingly, the Tribunal is satisfied that the requirements of cl.101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

    Relationship status and history

25. At the time of application, the visa applicant must not be engaged to be married and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

26. There is no evidence that the visa applicant is engaged to be married, or that he has or ever has had a spouse or de facto partner. 

27. In the absence of any evidence to the contrary, the Tribunal is satisfied that the requirements of cl.101.213(1)(a) are met at the time of application and continue to be met at the time of this decision: cl.101.221(2)(b).

    Not engaged in full-time work

28. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

29. In his visa application, the visa applicant claimed to have commenced full-time work on 1 January 2017 with a financial services company known as PSG.  This is supported by the signed copy of the visa applicant’s Contract of Employment.   The visa applicant also claims in his visa application that he ceased working for PSG in June 2018.  The visa applicant also provided the Department with copies of his bank statements for the period from 3 November 2016 to 20 March 2019.  The Tribunal has considered the visa applicant’s bank statements.  The Tribunal observes for the period from 2 February 2017 to 22 May 2018, the visa applicant received the payment of wages from PSG. 

30. Based on the email evidence provided by the visa applicant to the Department on 9 April 2019, the Tribunal accepts that the visa applicant was engaged in full-time work with PSG however after reviewing the bank statements for the same account for the period from 22 June 2018 to 20 March 2019 the Tribunal is satisfied that the visa applicant ceased employment with PSG on 22 May 2018.  Although the Tribunal accepts, based on the bank statements, that the visa applicant continued to work from 22 May 2018 for another employer and that the payment of wages from his new employer were regularly made to his account there is no evidence that he was engaged by this employer on a full-time basis at the time of application.

31. Based on this evidence and in the absence of any evidence to the contrary, the Tribunal is satisfied that the requirements of cl.101.213(1)(b) is met at the time of application and continues to be met at the time of this decision: cl.101.221(2)(b).

    Full-time study

32. At the time of application, the visa applicant must have, 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: cl.101.213(1)(c).

33. 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]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), 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 [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2).

34. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

35. The visa applicant claims to have attended Ermelo High School in South Africa between 2008 and 2012.  The visa applicant claims that he was awarded a National Senior Certificate (NSC) in December 2012.  The visa applicant provided the Department with a copy of his NSC.  The NSC confirms that the visa applicant completed his secondary schooling in December 2012. 

36. The Tribunal has considered whether the visa applicant’s NSC is the equivalent of Year 12 in the Australian school system.  The Tribunal is satisfied that the visa applicant’s NSC is the equivalent of Year 12 in the Australian school system because the subjects undertaken are similar to subjects undertaken by Year 12 students in Australia and further the NSC entitled the visa applicant for admission to an undergraduate degree to a university.

37. The visa applicant claims to have commenced full-time undergraduate study at North-West University in South Africa on 1 February 2013.  The visa applicant claims that he undertook a Bachelor of Commerce – Economics and Risk Management.  The visa applicant claims to have completed the requirements for this degree on 1 February 2016.  The competition of this degree entitled the visa applicant admission to the Honours Bachelor of Commerce in Risk Management degree which commenced immediately after his first undergraduate degree.  The Honours degree was completed on 31 December 2016.

38. As mentioned above at para [29], the visa applicant commenced full-time employment with a financial services company on 1 January 2017.  The visa applicant did not start his postgraduate studies until 15 April 2018.  The Tribunal has considered whether the gap between the visa applicant completing his undergraduate studies and starting his postgraduate studies is reasonable.  The Tribunal recognizes that it is reasonable and indeed normal for a student who has studied for a long time as is the case in the present matter to not pursue postgraduate studies immediately after completing their undergraduate degree.  The Tribunal recognizes that it is reasonable and indeed normal for a young adult to enter the workforce after completing their undergraduate degree and to defer postgraduate studies to a later date.  In the present case, the Tribunal is satisfied on the evidence that a gap of 16 months between the completion of the visa applicant’s undergraduate studies and the start of the visa applicant’s postgraduate studies was reasonable for several reasons.  Firstly, the visa applicant did not engage in other activities that were unrelated to his studies.  Secondly, the visa applicant commenced full-time employment immediately after completing his two undergraduate degrees.  Thirdly, the full-time employment the visa applicant engaged had direct relevance to his education and qualifications. 

39. The Tribunal has considered the ‘relevant period’ from December 2012 up to and including the time of this decision.  The NSC does not specify whether the visa applicant had completed his secondary schooling before or after 5 December 2012.  However, based on the evidence, the Tribunal is satisfied that at the time of application the visa applicant commenced a full-time course of study within a reasonable time after finishing his secondary schooling and that the visa applicant has since that time been undertaking a course of full-time at educational institutions that has and is leading him to the award of professional, trade or vocational qualification and although there was gap between his undergraduate course and his postgraduate course, it was reasonable for the reasons given above.

40. There is no evidence before the Tribunal that the visa applicant has completed his postgraduate course.  Accordingly, the Tribunal is satisfied that the requirements of cl.101.211(1)(b) are met at the time of application and continue to be met at the time of decision.

    Is the visa applicant a dependent child of the review applicant?

41. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(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.

42. 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].

43. There is no evidence that at the time of application that the visa applicant is wholly or substantially reliant on the review applicant for financial support because he is incapacitated for work due to the total or partial loss of any bodily or mental functions.

44. The visa applicant claims that the ‘other person’ he is wholly or substantially dependent on for financial support to cover his basic needs is the review applicant.  As mentioned above, the visa applicant provided copies of his bank statements to the Department for the period from 3 November 2016 to 20 March 2019. 

45. Although the bank statements for the period from 3 November 2016 to 22 March 2019 show that it is the review applicant’s wife that makes monthly payments to the visa applicant’s account, the Tribunal considers that it is reasonable to conclude that as the review applicant and his wife are married and share the same household, the monies come from shared financial resources. 

46. The Tribunal has considered the bank statements for the period from 3 November 2016 to 25 September 2018.  Although the visa applicant has received the payment of wages and from time to time, other sources of income, the Tribunal observes that the money received from the review applicant has largely been used by the visa applicant to cover his basic needs.  Based on this evidence, the Tribunal is satisfied that the visa applicant was at the time of application and for a substantial period immediately before that time, wholly or substantially reliant on the review applicant for financial support to cover his basic needs for food, clothing and shelter.

47. Accordingly, the Tribunal is satisfied that the requirements in cl.101.211(1)(a) is met at the time of application and does not continue to be met at the time of decision only because the visa applicant has turned 25.

1. For the reasons above, the Tribunal is satisfied that the criteria in cl.101.211 and cl.101.221(2)(a) are met.

2. Accordingly, cl.101.213(1)(c) is met and continues to be met at the time of decision.

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

   DECISION

4. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

   ·cl.101.211 of Schedule 2 to the Regulations;

   ·cl.101.213 of Schedule 2 to the Regulations; and

   ·cl.101.221 of Schedule 2 to the Regulations.

   Peter Smith
   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.

   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.

   …