Australian Immigration Appeals: Family Visas 2009

Migration Review Tribunal Decision Summaries

Australian Immigration - Family Visas

Australian Visas On this page:

Australian Sponsored Family Visitor Visas
Australian Parent Visas
Australian Remaining Relative Visas
Australian Orphan Relative Visas
Australian Carer Visas
Australian Child Visas
Other Related Australian Immigration Articles

Parent Visas

071952986
13 March 2009, Melbourne
Mr P Tyler, Member

CONTRIBUTORY PARENT (MIGRANT) (CLASS CA) – SUBCLASS 143 (CONTRIBUTORY PARENT) – CL.143.211 – AUSTRALIAN CITIZEN – A delegate of the Minister refused to grant the Australian immigration visa applicants Subclass 143 visas on the basis that they did not satisfy cl.143.211 of the Regulations because they were not the parents of a person who was a settled Australian citizen, Australian permanent resident, or eligible New Zealand citizen. The applicants claimed they arrived in Australia in 2000 and were the holders of Long-Stay Temporary Work visas when their son, the review applicant, was born in 2004. The primary Australian immigration visa applicant claimed that in 2005 he met with the Victorian Shadow Minister for the Environment to discuss his immigration options. He claimed that he provided all his documents and was told that because the review applicant was born in Australia he was entitled to an Australian passport. The primary Australian immigration visa applicant further advised that he went to the Post Office and filled in the forms, and that a Post Office officer rang the Department and was told to include a copy of his passport and visa with the passport application. Ten days after the Post Office forwarded the application to the Passport Office, the primary Australian immigration visa applicant received the review applicant’s Australian passport by registered mail. He claimed that he believed, having received the passport, that the review applicant was an Australian citizen who could sponsor the applicants. The primary Australian immigration visa applicant claimed that in 2008 he and his family wished to travel overseas, however, at the airport immigration desk, they were stopped and after questioning, his son’s passport was taken by the Immigration Officer.

Held: Decision under review affirmed

The Tribunal accepted that the primary Australian immigration visa applicant was the parent of the review applicant but found no evidence that the review applicant was a settled Australian citizen. It found that the fact that the review applicant was issued an Australian passport did not of itself make him an Australian citizen. It noted s.10(2)(a) of the Australian Citizenship Act 1948 stated a person born in Australia shall be an Australian citizen by virtue of that birth only if a parent was, at the time, an Australian citizen or a permanent resident, or the person had been ordinarily resident in Australia throughout the period of 10 years commencing on the day the person was born. The Tribunal was not satisfied the review applicant met the requirements of that section. Further, the Tribunal was not satisfied the review applicant was an Australian permanent resident because he was not the holder of a permanent visa, nor was there any evidence to indicate that he was an eligible New Zealand citizen. Therefore, the applicants did not meet cl.143.211(a) of the Regulations. The Tribunal also found that the primary Australian immigration visa applicant had never held a Contributory Parent (Temporary) Subclass 173 visa or a substituted Subclass 676 visa. Therefore, the applicants did not meet cl.143.211(b) of the Regulations. The Tribunal noted the primary Australian immigration visa applicant’s concerns about the negative impact on his 11 year old son who had lived most of his life in Australia and was unable to speak his parents’ native language. However, it did not have the power to waive mandatory visa criteria, although it did note that the Minister may intervene once the Tribunal had made an unfavourable decision. Accordingly, the Tribunal found that the primary Australian immigration visa applicant did not satisfy cl.143.211 to the Regulations.

0801851
27 April 2009, Sydney
Ms K Raif, Member

CONTRIBUTORY PARENT (TEMPORARY) (CLASS UT) – SUBCLASS 173 (CONTRIBUTORY PARENT) – CL.173.212(3) – R.1.03 – CLOSE RELATIVE – GUARDIAN – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 173 visa on the basis that she did not satisfy cl.173.212 of the Regulations because she was not sponsored by a person who was a close relative or a guardian of the child. The Australian immigration visa applicant was divorced and lived in Vietnam. Her son lived in Australia with her aunt who was his guardian and primary carer. She had daily care and control regarding his health, discipline and schooling. She attended to his emotional, educational, social and family needs, and had full parental responsibility for him. The Australian immigration visa applicant’s will appointed her aunt as executrix, trustee and guardian of her son and granted her power of attorney. The Australian immigration visa applicant claimed she became depressed after she visited and had to leave him. A psychological report stated she and her son had a strong bond and he was adversely affected by his separation from her.

Held: Decision under review affirmed

The main issue was whether the Australian immigration visa applicant met the sponsorship requirements. A guardian had powers, rights and duties vested by law or custom. There was no evidence these were conferred on the sponsor legally and the Australian immigration visa applicant’s consent, will and power of attorney were insufficient. The bequest of guardianship rights in a will did not affect current guardianship. In the absence of formal orders, the definition was not satisfied by implied or intended guardianship. There was no relevant custom which vested the review applicant with any powers, rights and duties, and custom could not contravene existing statute law. The Tribunal was not satisfied the review applicant was a guardian of the child, she was not a close relative of the Australian immigration visa applicant and did not meet cl.173.212(3) of the Regulations. The Tribunal accepted there were compelling circumstances but had no discretion to waive the requirements. Neither the best interests of the child, or any compassionate and compelling circumstances affecting the Australian immigration visa applicant and the child, overrode the express statutory requirements.

071892891
3 April 2009, Sydney
Ms N Dougall, Member

CONTRIBUTORY PARENT (MIGRANT) (CLASS CA) – SUBCLASS 143 (CONTRIBUTORY PARENT) – CL.143.311 – FAMILY UNIT – A delegate of the Minister refused to grant the secondary Australian immigration visa applicants Subclass 143 visas on the grounds that the primary Australian immigration visa applicant did not satisfy cl.143.311 of the Regulations because the secondary applicants were found not to be members of the primary applicant’s family unit. The primary applicant’s Subclass 143 application included her husband and his daughter (the secondary applicants), with an accompanying form 47A for a child or other dependent family member aged 18 years or over. The form stated that the dependent child had never worked and that her father provided all financial assistance. Supporting evidence was provided. Departmental officers conducted a site visit at the address where the Australian immigration visa applicants claimed to live together. The site visit concluded that the primary applicant’s relationship with the secondary applicant, her husband, was not genuine. At review, the secondary applicants provided explanations for the adverse findings of the site visit. The review applicants provided evidence that they had known each other since 1974 and were best friends and that if they came to Australia they would like to open a small restaurant. She stated that if her husband was not granted a visa they would continue to apply. The Tribunal was also provided with copies of wedding photos, joint accounts for electricity, water, heating and gas and evidence of the primary applicant being financially supported by her husband since her arrival in Australia. The dependent child claimed she had graduated from university, was living with her father who supported her and was looking for work but had not yet found a job.

Held: Decision under review set aside

The Tribunal considered the Departmental site visit report and the primary applicant’s response to this information at the hearing. While there were some differences in evidence provided by the Australian immigration visa applicants, the Tribunal found that this would not be accorded weight in light of the majority of the evidence. The Tribunal noted that family, friends, work colleagues and three neighbours had supplied statements in support of the genuineness of the couple’s relationship. The Tribunal was satisfied that the husband had provided the primary applicant with financial support and that the couple had lived together for just under two years, up until the primary applicant left for Australia. The Tribunal found that if the husband was granted a visa he would reside in Australia with the primary applicant and thus that they did not live separately and apart on a permanent basis. In light of these findings, the Tribunal found that the primary applicant’s husband was a member of the primary applicant’s family unit both at the time of the application and the decision. The Tribunal found that the secondary applicants were father and daughter, that the daughter had been for a substantial period immediately before the visa application, wholly or substantially reliant on her father for financial support to meet her basic needs for food, clothing and shelter and that her reliance on her father was greater than any reliance on any other person. The Tribunal therefore found that the daughter was a dependent child of her father and, as such, she was a member of the family unit of the primary applicant. The Tribunal consequently found that both secondary applicants satisfied the criteria in cl.143.311 as they were members of the family unit of, and made a combined application with, the primary applicant.

Remaining Relative Visas

0802922
11 May 2009, Sydney
Mr D O’Brien, Principal Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 (REMAINING RELATIVE) – CL.115.211 – R.1.15 – DEFINITION OF NEAR RELATIVE – A delegate of the Minister refused to grant Subclass 115 visas to the applicants on the basis that the delegate was not satisfied that the primary Australian immigration visa applicant was a ‘remaining relative’ of the review applicant within the meaning of r.1.15 of the Regulations. The delegate found that, as the secondary applicant had turned 18 at the time of application, she did not meet the definition of dependent child and therefore, she was a near relative of the applicant. The review applicant claimed that their son, the primary Australian immigration visa applicant, had severe medical problems as a result of an accident which had left him permanently disabled and that he did not work. She also claimed that he was divorced, he received a disability pension and that she and her spouse made 6 monthly trips to Canada to help look after him and his children. The review applicant claimed that the secondary applicant was a university student who stayed on campus during term because the family home was 3 hours away. She earned money from casual and part-time work which went towards her university tuition and living expenses. The secondary Australian immigration visa applicant claimed that, although her aunt had given her money as a birthday present and to assist with her education, she depended on her father for food, shelter and clothing and that he supported her financially and she relied on him for all her needs. Therefore, she claimed she was a dependent of the primary applicant and that she did not meet the definition of near relative.

Held: Decision under review set aside

The Tribunal was satisfied that the secondary applicant remained substantially reliant on the primary applicant for financial support to meet her basic needs for food, clothing and shelter and that the money she had received from her aunt was a birthday present. The Tribunal also found that her reliance on the primary applicant was greater than on any other person. Although she was earning extra cash to cover university expenses, the critical matter was the support she received from the primary applicant, not the extent of the need she might or might not have for that support. The Tribunal found that the applicant daughter’s place of residence remained her father’s house despite staying in residential accommodation at the university on the days on which she attended. The Tribunal was satisfied that the applicant daughter was not a near relative of the primary applicant and found that the primary applicant had no near relatives in Australia other than near relatives who were permanent residents or citizens. Accordingly, the Tribunal was satisfied that, at the time of application and at the time of decision, the Australian immigration visa applicant was a ‘remaining relative’ of the review applicant in accordance with r.1.15 and therefore, met cl.115.211 and cl.115.221 of the Regulations.

0807698
10 June 2009, Sydney
Mr G Short, Senior Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 (REMAINING RELATIVE) – CONTACT WITH AN OVERSEAS NEAR RELATIVE – REASONABLE PERIOD – A delegate of the Minister refused to grant the applicant a Subclass 115 visa because they could not be satisfied that the Australian immigration visa applicant was a remaining relative of the review applicant, who is the Australian immigration visa applicant’s mother. Also included in the application was the Australian immigration visa applicant’s infant son. Following the Tribunal’s previous finding to affirm the Department’s decision, the applicant applied to the Federal Magistrates Court and the matter was remitted to the Tribunal for reconsideration. The applicant claimed that, at the time of the visa application in August 2005, she was living separately and apart from her former spouse on a permanent basis, having returned to China in 2004 while her former husband remained in Australia. The applicant’s representative conceded at hearing that the Australian immigration visa applicant had two ‘overseas near relatives’ being her two younger daughters who were citizens of the People’s Republic of China, although they were residing in Australia illegally at the time of the visa application. The Australian immigration visa applicant claimed that her former husband took the two younger daughters to dinner one night shortly before her departure to China and he did not return them to her. She claimed that although she had done everything to locate them, she had been unable to do so and none of her family or friends in Australia has had contact with them since. She believed that they were currently with their father somewhere in Australia.

Held: Decision under review affirmed

The Tribunal initially pointed out that the focus of this hearing was on a different issue from that relied on by the delegate and by the first Tribunal. The Tribunal accepted that the Australian immigration visa applicant was divorced from her husband and that they were living separately and apart on a permanent basis at the time of the visa application. It also accepted that the Australian immigration visa applicant’s former husband took her two younger daughters to dinner and did not return them. It found that her two younger daughters fell within the definition of ‘overseas near relative’ since they had not turned 18 at the time of application and they were not wholly or substantially in her daily care and control. The Tribunal found that the issue to consider was whether the Australian immigration visa applicant had had ‘contact’ with her two younger daughters ‘within a reasonable period before making the application’. The Tribunal accepted that the Australian immigration visa applicant was typically close to her daughters prior to her return to China and for one week after her return. However, it found that there was a period of 10 months preceding the making of the application where the Australian immigration visa applicant was not in contact with her two younger daughters. The Tribunal noted that, were it not for the intervention of the Australian immigration visa applicant’s former husband, the Australian immigration visa applicant would obviously have had a close relationship with her two daughters throughout the relevant period. It did not consider it irrational in the context of the relevant provisions to have regard to the closeness of the relationship between the Australian immigration visa applicant and the overseas near relatives in determining what is a reasonable period in the context of this particular case. Conversely where, as in this case, the relationship is a very close one – that of a mother and her two younger daughters – and where it is submitted that the relationship would have continued to be close but for the circumstances that the Australian immigration visa applicant was forced to return to China, and that the children’s father did not return her two younger daughters, the Tribunal considered that it was appropriate to regard a longer period as a ‘reasonable period’ in determining whether the Australian immigration visa applicant met the definition of a ‘remaining relative’. The Tribunal reasoned that if a relationship which would ordinarily be very close was interrupted, for example, by a family quarrel, the very closeness of the relationship would suggest that one should wait for some time before concluding that the relationship had been irreparably severed. In the context of such a relationship, one would not immediately conclude, on the basis of an absence of ‘contact’ in the relevant sense for a week or a month, that such contact would not resume very shortly. Conversely, if a relationship which had never been close were interrupted in the same way there would be no natural expectation that the breach would heal within the reasonably foreseeable future and one could be satisfied after a somewhat shorter period that ‘contact’ in the relevant sense would not resume. The Tribunal considered that there were cogent arguments to depart from the relevant Departmental policy in the circumstances of the present case. It concluded that a period of three years was a ‘reasonable period’ for the purposes of cl.1.15(1)(c)(ii) in the circumstances of the present case. It found on the evidence that the Australian immigration visa applicant had had ‘contact’ in the relevant sense with her two younger daughters within a reasonable period before making the application, that is, within the period of three years beginning on 15 August 2002. The Tribunal accepted that the applicant’s relationship with her two younger daughters was close until she returned to China in 2004. It found, therefore, that the Australian immigration visa applicant was unable to satisfy r.1.15(1)(c)(ii) of the Regulations and that she was not a ‘remaining relative’ as defined for the purposes of the Regulations. Accordingly, the Australian immigration visa applicant did not satisfy cl.115.211 of Schedule 2 to the Regulations.

0803354
7 September 2009, Sydney
Mr A Jacovides

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 (REMAINING RELATIVE) – R.1.15 – NEAR RELATIVES – A delegate of the Minister refused to grant the Australian immigration visa applicants Subclass 115 (Remaining Relative) visas because the primary Australian immigration visa applicant had near relatives who were not Australian citizens, Australian permanent residents or eligible New Zealand citizens, usually resident in Australia. The visa application was made on the basis that the Australian immigration visa applicant, a Fijian citizen, is the remaining relative of her brother (the sponsor and review applicant), who is an Australian citizen. The Australian immigration visa applicant stated that her parents and two of her four siblings live in America, and her other two siblings live in Australia. She claimed that her husband’s parents are deceased and that he has no siblings. At the Tribunal hearing, the applicant requested the Tribunal to take into account that the Australian immigration visa applicant does not have a positive relationship with her parents and that one of her brothers in America intends to migrate to Australia. He claimed that the Australian immigration visa applicant has a close relationship with her siblings in Australia and that it was preferable that she live in Australia rather than anywhere else. He stated that because the Australian immigration visa applicant was in Fiji and their parents were in the USA, he assumed she could satisfy the requirements of ‘remaining relative’ because she was the only relative remaining in Fiji. The review applicant stated that he assumed decision makers had the discretion to grant the visa on humanitarian or compassionate grounds.

Held: Decision under review affirmed.

The Tribunal found that the Australian immigration visa applicant’s parents and siblings reside in America. The Tribunal noted that the legislation requires the Australian immigration visa applicant and her spouse to have no near relatives other than those who are Australian citizens, permanent residents or eligible New Zealand citizens as required by r.1.15(1)(c). Accordingly, the Tribunal found that the Australian immigration visa applicant did not meet r.1.15(c) and could not satisfy the requirements for the grant of the visa. The Tribunal further noted that neither it nor the delegate possessed the discretion to grant visas on humanitarian or compassionate grounds.

0800502
10 February 2009, Sydney
Mr D O’Brien, Principal Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 – CL.115.211 – CL.115.221 – REMAINING RELATIVE – R.1.15 – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant an Other Family (Migrant) (Class BO) Subclass 115 visa on the basis that she did not meet cl.115.211 and cl.115.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the Australian immigration visa applicant was a ‘remaining relative’ of the review applicant within the meaning of r.1.15 of the Regulations. The delegate was not satisfied that the Australian immigration visa applicant’s three siblings in Ethiopia were dead as three letters provided purportedly to certify the death of two siblings and the disappearance of one sibling were found not to be genuine, following investigations conducted by officers from the Australian High Commission. The review applicant insisted that the letters were provided to the Australian immigration visa applicant by someone who was a member of the relevant organisations and supplied further evidence in the form of witness statements and photographs. Both the review applicant and the Australian immigration visa applicant gave evidence before the Tribunal and asserted that they had lost their siblings.

Held: Decision under review set aside.

The Tribunal accepted the difficulties faced by applicants attempting to provide official documentation to support claims of death in countries such as Ethiopia where death certificates were non existent or hard to obtain. The Tribunal found that the three letters were unreliable, however, it found that the Australian immigration visa applicant might not have been at fault in relation to those documents. On the basis of the consistent accounts given by the review applicant and the Australian immigration visa applicant, the Tribunal accepted that two of the siblings had died as claimed. The Tribunal also found that the missing sibling was deceased, based on the account of the circumstances surrounding his disappearance and consideration of the common law presumption of death after seven years. Thus the Tribunal was satisfied that, at the time of application and at the time of decision, the Australian immigration visa applicant was a ‘remaining relative’ of the review applicant in accordance with r.1.15 and therefore met cl.115.211 and cl.115.221 of Schedule 2 to the Regulations.

0807598
23 February 2009, Sydney
Ms A MacDonald, Senior Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 114 – CL.114.211 – R.1.05A(1)(a) – DEPENDENT – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant an Other Family (Migrant) (Class BO) Subclass 114 visa on the basis that she did not meet cl.114.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she had not been financially dependent on the review applicant for a reasonable period. The applicants claimed that, at the time of application, the Australian immigration visa applicant was financially reliant on the review applicant. The applicants provided a breakdown of the Australian immigration visa applicant’s average monthly outgoings and income as well as additional expenses.

The income included a pension regularly received from the British government. The review applicant agreed at hearing that the Australian immigration visa applicant was able to subsist on her pension but without additional support from the review applicant would not have much of a life.

Held: Decision under review affirmed.

The Tribunal did not dispute that the review applicant provided considerable emotional support and was willing and able to support the Australian immigration visa applicant financially. The Tribunal accepted the evidence of the Australian immigration visa applicant’s income and expenses but found that expenses relating to her dog, transport, upkeep of her husband’s gravestone, dental and general medicine costs could not be considered. The Tribunal found that, at the time of application, the Australian immigration visa applicant did not meet the definition of ‘dependent’ in r.1.05A(1)(a) of the Regulations because she was not wholly or substantially reliant on the review applicant for financial support to meet her basic needs for food, clothing and shelter, but rather relied on her pension. As such, the Tribunal was not satisfied that the Australian immigration visa applicant met the definition of ‘aged dependent relative’ in r.1.03 and therefore did not meet cl.114.211 of the Regulations.

0805004
16 November 2009, Melbourne
Mr P Fisher, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 (REMAINING RELATIVE) – R.1.15 – DEFINITION OF REMAINING RELATIVE – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 115 (Remaining Relative) visa because the delegate was not satisfied that the applicants’ parents or remaining sibling were deceased. The Australian immigration visa applicant, the review applicant’s brother, submitted witness attestations as to the deaths of their parents in 2005, which were sworn before an official of the High Court of Afghanistan. The Australian High Commission sought to have the attestations verified by the Afghan Embassy in Islamabad and was informed by an embassy official that the documents were bogus. The Australian immigration visa applicant subsequently submitted replacement attestations, sworn in front of an official of the Afghanistan High Court in Kabul which were accompanied by a letter maintaining that the documents initially submitted were genuine and claiming that the applicant had been unable to obtain a satisfactory explanation from the Afghan bureaucracy as to why they were said to have been bogus. The same bureaucracy had, nevertheless, issued the replacement document to him. In support of the application for review, the applicant submitted a letter from the Afghan Embassy in Canberra certifying that the attestation as to the applicants’ parents’ deaths was genuine. The applicants claimed that their parents were abducted in 2005 and then killed by a militia commander. They claimed that the Australian immigration visa applicant was abducted at the same time but was held separately from his parents and later managed to escape. Consequently, they were not sure where their parents died or where they were buried. The Australian immigration visa applicant claimed they were informed by neighbours in Kabul about their parents’ deaths. The Australian immigration visa applicant claimed that he and his parents had been targeted by Shia Muslims because his sister in law had entered into a love marriage without her family’s consent and she was subsequently kidnapped. Her father had held his family responsible. The applicants also claimed to have another brother, not mentioned on the visa application, who had been killed by the Taliban. The Australian immigration visa applicant claimed that he never saw his brother’s body and he does not know where he is buried. He claimed that he was told by the authorities that he could not obtain a death certificate for his brother as there were no witnesses to his death. The review applicant claimed that he had visited his brother’s grave in Kabul. He claimed that the Australian immigration visa applicant was only 13 or 14 years old when their other brother died so he was shielded from all the details of his death, including the location of his grave.

Held: Decision under review set aside.

The Tribunal noted that, in the course of delivering their evidence, the applicants displayed familiarity and common knowledge with regard to their claimed shared family background and experiences. It also observed their strong physical resemblance to one another. The Tribunal noted the review applicant’s willingness to undergo DNA testing if required, but formed the view that this was not necessary. The Tribunal found, on the evidence before it, that the Australian immigration visa applicant and review applicant were brothers. The Tribunal noted the applicants’ sworn evidence disputing the delegate’s findings that the death attestations submitted in the visa application were bogus. The Tribunal found that the applicants’ position was supported by the fact that the second death attestation obtained by the Australian immigration visa applicant had been authenticated by the Afghan Embassy in Canberra. The Tribunal noted that it is not unheard of for conflicting or inconsistent information to emerge from the Afghan bureaucracy. It observed that the documents submitted by the applicants attesting to the death of their parents were of limited evidentiary value, even if they were genuine, because all they purported to be was attestations by neighbours or others claiming to be able to confirm that the persons identified in the document are dead. The Tribunal noted that the role of the Afghan bureaucracy appeared to be limited to validating the authenticity of the attestations themselves, rather than the events described in them. It found that it was therefore unclear how much weight should be placed on the documents. However, the Tribunal found that the applicants gave consistent evidence about the circumstances under which their parents and sibling had died, and based on the evidence before it, the Tribunal was satisfied that the applicants’ family members had died as claimed. The Tribunal thus found that the review applicant was the Australian immigration visa applicant’s only surviving near relative, and that the Australian immigration visa applicant met the definition of remaining relative at the time of application and decision. Accordingly, the Tribunal found that the applicant satisfied the criteria for the grant of a Subclass 115 visa.

0906230
17 November 2009, Perth
Ms L Ward, Member

OTHER FAMILY (RESIDENCE) (CLASS BU) – SUBCLASS 835 (REMAINING RELATIVE) – CL.835.213 – ADOPTION – A delegate of the Minister refused the applicant’s Subclass 835 visa application as the Australian immigration visa applicant did not satisfy cl.835.213 of the Regulations. The review applicant provided copies of birth certificates and adoption papers to show that the review applicant and the Australian immigration visa applicant were biological twins and that they had been adopted out to different families a few months after their birth. The review applicant claimed that she became an Australian citizen in her early 20’s and that she was married soon after. She claimed that in 2008 she was finally able to locate her twin sister after many years of searching and that after more than fifty years the applicants wished to spend the remainder of their lives together. The delegate found that because the applicant was formally adopted in Malaysia, her legal link to her biological twin sister was severed. The delegate therefore found that the review applicant was not a ‘relative’ or ‘close relative’ of the applicant and hence she failed to meet cl.835.213(a).

Held: Decision under review set aside.

The Tribunal accepted from the evidence provided that the applicants were biological twin sisters and that they had been adopted out to different families a few months after their birth. The Tribunal noted that it was required to decide if the term ‘sister’ as used in the Regulations included a biological sister who was then subject to an adoption order. The Tribunal found that the policy relating to the term ‘remaining relative’ required an expansive view of an applicant’s relationship with the sponsor, as set out under Departmental policy guidelines. The Tribunal found that this view was consistent with a review applicant being able to sponsor a biological sister who was separated from them shortly after birth via adoption, and that a ‘close relative’ as defined at the time of application included ‘sister’ and ‘step sister’. Therefore, the Tribunal found that biological sisters were still ‘sisters’ under the Regulations after adoption, and that accordingly, the Tribunal was satisfied that the applicants were ‘sisters’ as set out in the definition of a ‘close relative’ and therefore met cl.835.213 of the Regulations.

Orphan Relative Visas

0805214
20 March 2009, Melbourne
Ms R Gagliardi, Member

CHILD (MIGRANT) (AH) – SUBCLASS 117 (ORPHAN RELATIVE) – CANCELLATION – S.109 – SS.101, 103, 104 – INCORRECT INFORMATION – BOGUS DOCUMENTS – CHANGED CIRCUMSTANCES – A delegate of the Minister cancelled the applicant’s Subclass 117 visa under s.109 of the Act on the basis that he had not provided correct information on his visa application, provided bogus documents, and failed to notify the Department of changed circumstances. The applicant was granted the visa as an orphan whose mother was deceased and father was missing, presumed dead. Subsequently, visitor visa applications were lodged in the names of his father and mother, although the applicant claimed it was his stepmother using the false identity of his deceased mother. While the applicant admitted that he was aware of his father’s location, he claimed that at the time of his application his father’s whereabouts was unknown. He claimed that he subsequently discovered that his father had secretly married another woman in Eritrea after he was married to the applicant’s mother and had a daughter with his new wife. He further claimed that his father had used the refugee documents of the applicant’s mother and sister to take his other family to Sudan and then to Saudi Arabia. The applicant claimed he did not inform the Department of these events as he was unaware of his obligation to do so. The applicant also gave various explanations for what appeared to be alterations to his Eritrean passport. The applicant’s claims were confirmed by his siblings, other relatives, and community members, who also stressed his success at university and his community work with new migrants.

Held: Decision under review set aside

The Tribunal found that on balance the applicant was likely to have known that his father was alive at the time of application, and thus gave incorrect answers on his application in breach of s.101 of the Act. Because of the inconsistencies between the applicant’s passport and visa application, the Tribunal also found that the applicant had provided false documentation and thus breached s.103 of the Act. The Tribunal did not accept that the applicant would have advised the Department immediately about changes to his circumstances had he known he was obliged to do so given that the reason he had been granted his visa was no longer accurate as he was, in effect, no longer an orphan. It therefore found that he had breached s.104 of the Act. In considering whether to exercise its discretion to cancel the applicant’s visa the Tribunal noted that the applicant was still a minor, or close to a minor, when the application was commenced. It determined that if some elaborate chain of untruths had been presented to the Department (which the Tribunal had not been able to demonstrate was the case beyond all reasonable doubt) this occurred at the prompting of older family members. The Tribunal thus considered that it would be an extreme outcome were the applicant to be sent to Eritrea and expected to survive on his own and without support in what would be virtually a foreign country. The Tribunal noted that if the applicant was returned to Eritrea the course of his life would take a detrimental turn and the money and effort invested in his studies would be wasted. The Tribunal further took into account the applicant’s apparent genuine desire to make a valuable contribution to Australian society and noted that he had proven himself as someone with a good reputation in his community. In considering the circumstances as a whole, the Tribunal concluded that the visa should not be cancelled.

0807998
5 June 2009, Melbourne
Mr J Atkins, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 (ORPHAN RELATIVE) – CL.117.211 – CL.117.221 – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 117 visa on the basis that he did not meet cl.117.211 and cl.117.221 of the Regulations as the delegate was not satisfied that the Australian immigration visa applicant’s father was missing or that the applicants were related. The delegate noted that the review applicant’s spouse visa application stated a different name for her mother and incorrectly stated the Australian immigration visa applicant’s year of birth. The review applicant claimed that her husband completed the forms and that he had made mistakes without bothering to check with her. The applicants claimed their mother had died and the review applicant helped her father care for the Australian immigration visa applicant until she came to Australia. She claimed her older brother was taken to fight in the war in Ethiopia and the Australian immigration visa applicant told her that their father had gone to find their older brother, but was missing and had not been seen since. She claimed she tried to locate her father and older brother through the Red Cross without success. She claimed their father consented for the Australian immigration visa applicant to live with a friend and his family and she sent money to the friend to pay for the Australian immigration visa applicant’s school fees and support. She claimed the Australian immigration visa applicant would be better off in Australia, where he would receive care, emotional support and attend school. The Australian immigration visa applicant claimed he had stopped attending school because he helped the friend with his children and in his shop. He claimed he did not tell the review applicant he stopped going to school, but would attend school if he came to Australia. The friend confirmed he was a friend of the applicants’ father and if their father was alive he would have been in touch. He confirmed the Australian immigration visa applicant did not go to school, and the review applicant was not informed. He claimed school was expensive, he had other children to support and he could not afford for the Australian immigration visa applicant to remain at school. The review applicant offered to provide a birth certificate from Ethiopia to establish that she and Australian immigration visa applicant had the same mother but advised this would take a long time. She also claimed she had considered undertaking a DNA test in order to overcome the problems of obtaining the certificate.

Held: Decision under review set aside

The Tribunal found the Australian immigration visa applicant was an orphan relative of the review applicant. The Tribunal accepted the review applicant’s evidence that their mother was deceased, that their father was missing and that all reasonable steps to establish his whereabouts had been taken. The Tribunal accepted that the review applicant would provide the Australian immigration visa applicant with a home and would make him attend school. It found that there was no compelling reason that the grant of a visa would not be in the best interests of the Australian immigration visa applicant. The Tribunal accepted that there were difficulties in obtaining a birth certificate for the Australian immigration visa applicant from Ethiopia. The Tribunal accepted that DNA testing could be expensive and the review applicant’s explanation that errors regarding her mother’s name and the Australian immigration visa applicant’s age were made by her former husband in the application without reference to her. The Tribunal determined that it was unnecessary for the review applicant to undergo a DNA test. Based on the evidence before it, the Tribunal was satisfied that the Australian immigration visa applicant could not be cared for by either of his parents because they were dead or of unknown whereabouts and therefore, he met the requirements of r.1.14. The Tribunal found the Australian immigration visa applicant was an orphan relative of his Australian relative and that he satisfied the criteria of cl.117.211 and cl.117.221 of the Regulations.

082781
9 June 2009, Brisbane
Ms H Johnston, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 (ORPHAN RELATIVE) – S.116 – CANCELLATION – AUTHENTICITY OF DOCUMENTS – A delegate of the Minister refused to grant the applicant a Subclass 117 visa because the delegate could not be satisfied that the Australian immigration visa applicant’s parents were deceased and that the applicant was orphaned. Further, the delegate could not be satisfied of the custody and travel issues associated with a visa grant. In respect to the delegate’s concern that the death attestations were not genuine, the agent noted that credibility concerns had arisen in respect to a number of DIAC clients as a result of fraud allegations made by an officer of the Afghan Consulate in Quetta. The agent further noted that the death attestation itself and the letter stating the death attestations are a fake, appear to be issued and signed by the same person. The agent submitted that all of her clients are adamant that they went to the Afghan Consulate in good faith to obtain the verification of the death of the person to whom the documents refer. The agent pointed out the difficulties associated with obtaining ‘official documents’ such as death certificates in countries like Afghanistan to provide the level of evidence required by the Department, particularly if people die at home. She argued that, in such circumstances, the alternative evidence provided by the Australian immigration visa applicant should be accepted. She further argued that lack of clarity regarding the correct method for obtaining death certificates for Afghans who die outside of Afghanistan – the Australian immigration visa applicant’s father died in Pakistan – adds to the difficulties. A copy of a certificate and a receipt for burial payment (translated) issued by the Hazara Cemetery Committee Quetta were provided relating to the death and burial of the Australian immigration visa applicant’s father in 2004. Also, several statutory declarations were provided stating that they were told of the deaths of the review applicant’s father. The review applicant is the older brother of the Australian immigration visa applicant.

Held: Decision under review set aside

The Tribunal accepted that there is no formal system of registration of births in Afghanistan and, accordingly, it had no option but to rely on less formal evidence than usual in making its findings about the Australian immigration visa applicant’s age. The Australian immigration visa applicant’s translated identity card confirms his place of birth and states that in 2005 his age was ascertained as 16 years old. The Tribunal found that the Australian immigration visa applicant had not turned 18 at the time of application and therefore he met the requirements of r.1.14(a)(i). The Tribunal was satisfied, on balance, that the sponsor is the brother of the Australian immigration visa applicant. The Tribunal was provided with additional material, including statutory declarations, extracts from the Register of the Hazara Cemetery and a burial receipt/certificate. Having considered all the information before it, the Tribunal accepted that the Australian immigration visa applicant’s parents were deceased. The Tribunal noted the two statements signed by Asad Ullah Pashtoon of the General of Islamic Republic of Afghanistan, Quetta, on which the delegate relied. In one statement, the writer attests to the Australian immigration visa applicant’s parent’s deaths being in 2002 and 2004. In the other statement, the writer states that the attestation issued earlier is a fake. The Tribunal gave no weight to either of these statements. The Tribunal acknowledged that, according to Hazara custom, the eldest male relative on the paternal side of Afghani families generally takes responsibility for the guardianship of children when their father has died. On that basis, the Tribunal considered that the review applicant is responsible for the Australian immigration visa applicant as he is the eldest male child in the family. The Tribunal accepted the arguments that migration to Australia would be in the best interests of the Australian immigration visa applicant who presently lives in Quetta, Pakistan. The Tribunal accepted that the review applicant wants to give his sibling the opportunity of a better life in Australia with him and his family where they appear to be well settled. The Tribunal is satisfied that there is no compelling reason to believe that the grant of Subclass 117 visa would not be in the best interests of the Australian immigration visa applicant and therefore he meets the requirements of r. 1.14(c). Given the above findings, the Tribunal concluded that, at the time of application, the Australian immigration visa applicant was an orphan relative of his Australian relative, being the review applicant, and he therefore satisfies cl. 117.211(a). Accordingly, the Tribunal found that the Australian immigration visa applicant satisfied cl. 117.211 of the Regulations.

0903539
21 August 2009, Melbourne
Mr D Lennon, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 102 (ADOPTION) – CL.102.211 – FORMAL ADOPTION – A delegate of the Minister refused to grant the applicant a Subclass 102 visa as she did not satisfy the requirements of cl.102.221 of the Regulations because her adoption did not accord with Bangladeshi law. The Australian immigration visa applicant was born in Bangladesh and is the daughter of the review applicant’s younger sister. The review applicant claimed that his sister’s family was very poor. He claimed that in 1997 he, his wife and two children moved to Croatia where he went to work. He claimed that he visited his family, including the Australian immigration visa applicant, in Bangladesh one to three times per year. The review applicant claimed that during one such visit in 2006 he discussed his desire to adopt a child with his sister, who suggested he adopt her daughter, the Australian immigration visa applicant. The review applicant took the view that charity begins at home and he decided to adopt the Australian immigration visa applicant. In January 2007, the Australian immigration visa applicant went to live with a ’guardian’ – the review applicant’s wife’s brother. The review applicant also stayed there for a few weeks before returning to Croatia. A month or two later the Australian immigration visa applicant joined him in Croatia for a few months. She stayed at home in his apartment while he worked. After he resigned from his job in Croatia, the review applicant claimed to have attempted, unsuccessfully, to obtain a bridging visa for the Australian immigration visa applicant to enable her to accompany him to Australia. The Australian immigration visa applicant returned to Bangladesh and the review applicant came to Australia. The Australian immigration visa applicant went to live with the ’guardian’ and occasionally stayed with the review applicant’s siblings and with her parents. In July 2008, the review applicant placed her in a boarding school near her parent’s home. He claimed to have visited her twice since coming to Australia. The review applicant claimed that, at the time of application, the Australian immigration visa applicant was closer to him than to anyone else. The Australian immigration visa applicant gave evidence at the Tribunal hearing that she telephoned the review applicant’s house on weekends but she normally spoke to her aunt as the review applicant was usually busy. She claimed that she telephoned her parents once a week and visited them about once a month for a day. The review applicant, in a submission to the Tribunal, claimed that an application to formalise the Adoption/Guardianship process through the relevant Family Court in Bangladesh had been made, and that this process was a formality.

Held: Decision under review affirmed

The Tribunal found that there was no evidence of formal adoption in accordance with the law of an Australian State or Territory or in accordance with the law of another country. The Tribunal found there was evidence of an application for guardianship having been lodged with the authorities in Bangladesh, but that formal adoption arrangements had not been made. It was noted that since 1982 adoption arrangements have not been available for Muslims under Bangladeshi law and that the parties are Muslims. The Tribunal considered Regulation 1.04(1)(c), sub regulation 2, and whether other arrangements entered into outside Australia were in the nature of adoption and could be taken as constituting ’adoption’ and specifically whether the child-parent relationship between the adoptee and the adopter was significantly closer than any such relationship between the adoptee and any other person. The Tribunal was not satisfied that, at the time of application or decision, this was the case. The Tribunal noted that even if it accepted that a child-parent relationship had evolved between the visa and review applicants given the limited time they had spent together, it would not have been satisfied that the relationship was significantly closer than any such relationship between the Australian immigration visa applicant and any other person or persons, in particular her natural parents. The Tribunal noted that while the review applicant regarded the approval of his application for guardianship as a fait accompli and used the terms ‘adoption’ and ‘guardianship’ interchangeably, his acquisition of ‘full and permanent parental right’ by the Guardianship had not been formalised at the time of application or decision. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Child (Migrant) visa

0904757
1 September 2009, Sydney
Ms P Leehy

CHILD (RESIDENCE) (CLASS BT) – SUBCLASS 837 (ORPHAN RELATIVE) – CL.837.213 – R.1.14(B) – DEFINITION OF ORPHAN RELATIVE – A delegate of the Minister refused to grant the applicant a Subclass 837 visa as the applicant did not satisfy cl.837.214 of the Regulations. The delegate found that the applicant did not meet the definition of ‘orphan relative’ in r.1.14. The applicant is a 16 year old male born in South Korea who was sponsored by his aunt. The applicant claimed to have been adopted in Korea by the sponsor and her husband in May 2008. The applicant’s parents are divorced and reside in Korea. The sponsor indicated on the visa application that both the applicant’s parents are permanently incapacitated. In support of the application, a letter from the applicant’s biological father was submitted stating that he divorced the applicant’s mother because of his illness and that his ex-wife is hearing impaired and her whereabouts are unknown. He also claimed that he is not able to raise the applicant, so he entrusted him to the sponsor who adopted him and can provide him with a loving family environment. Also submitted was a letter from the sponsor stating that the applicant’s father lost all his assets through gambling, resulting in the applicant’s parents’ divorce. The mother left the marriage and her children without providing any contact details. The sponsor claimed that when the applicant’s mother deserted him, he was left alone in the house to fend for himself and that he ate raw rice for a period, resulting in a stomach condition. At interview with the Department the sponsor claimed that the applicant’s mother had taken possession of her house again. Medical information about the applicant’s biological parents was also submitted, referring to the father’s spinal pain and the mother’s hearing impediment.

Held: Decision under review affirmed.

The Tribunal accepted the evidence presented in support of the applicant’s claim to be the adopted son of his aunt, the sponsor, and her husband. It noted that while the effect of the legal adoption of the applicant would normally be to sever the ties between the applicant and his biological parents, the Tribunal found that in this case the applicant was cared for by his biological parents from his birth up to their divorce in March 2008, just prior to his arrival in Australia that month. The Tribunal further noted that the wording of the legislation is highly restrictive, in that it specifies that a person who is not an orphan relative is not so “only because the applicant has been adopted by an Australian relative”. The Tribunal found that the applicant is not an orphan as defined in r.1.14, not because he has been adopted by an Australian relative, but because his natural parents are alive, and are not permanently incapacitated, nor are they of unknown whereabouts. Furthermore, the Tribunal noted that the biological parents, or at least the father, had cared for the applicant all his life until March 2008, and in the Tribunal’s view, his parents were able to care for him at the time of decision. The Tribunal found that neither of the medical reports submitted for the applicant’s biological parents stated that either party was permanently incapacitated such that they are unable to care for the applicant. The Tribunal considered the evidence that the father had serious gambling debts, but found there was no evidence that this would preclude him from taking care of the applicant. The Tribunal noted that while, at the time of adoption, the whereabouts of the applicant’s mother was allegedly unknown,this was no longer the case at the time of decision. On the evidence before it, the Tribunal was not satisfied that the applicant could not be cared for by either or both of his parents, and therefore the applicant did not meet the requirements of r.1.14(b).

0904793
2 October 2009, Sydney
Mr J Silva, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 102 (ADOPTION) – CL.102.211(2) – ADOPTIVE PARENTS – A delegate of the Minister refused the applicant’s Subclass 102 visa application on the basis that the adopting parents had not lived overseas for the 12 months preceding the date of application. The Australian immigration visa applicant was a six year-old child and documents provided to the Department indicated he was adopted by the review applicant and his spouse in 2008 in the Philippines. The review applicant claimed that he resigned from his job in Australia and returned to the Philippines to spend time with his ill father, and took the opportunity to set up a business there. He claimed that the review applicant and his spouse have no children of their own, and that the Australian immigration visa applicant is the youngest of their nephew’s children. The review applicant claimed that he became the babysitter for the Australian immigration visa applicant as the Australian immigration visa applicant’s natural parents were busy working and could not meet the child’s financial needs. The review applicant claimed that he initiated the idea of adoption to his sister and her husband, and after some hesitation, they agreed. Departmental records showed that the review applicant was outside Australia for less than 2 months during the relevant period of 12 months prior to the application date, whilst the review applicant’s wife was outside Australia for a period of less than 1 month. The review applicant submitted that he was domiciled in the Philippines as he had set up a business there and had responsibilities towards the Australian immigration visa applicant as well as his ailing father. He claimed that after he returned to Australia it was only due to unforeseen circumstances that he did not manage to return to the Philippines in the period before the visa application was lodged, and that throughout this time he had fulfilled his responsibilities as the Australian immigration visa applicant’s adoptive parent by sending money to support him.

Held: Decision under review affirmed.

Based on the documentation provided, the Tribunal accepted that the review applicant and his spouse adopted the Australian immigration visa applicant although it noted some anomalies regarding the review applicant’s account of the process leading up to the adoption. The Tribunal found that he had business and family interests in both Australia and the Philippines, and that relevantly, during the 12 months before the visa application, the review applicant was residing overseas for less than 2 months. Therefore, the Tribunal found that the review applicant had not been residing overseas for more than 12 months at the time of application. The review applicant claimed that he would have continued living in the Philippines up to the date of the visa application had it not been for unexpected economic problems, however, the Tribunal found that this did not enable the review applicant to meet the requirement that he had been residing overseas for more than 12 months at the time of application. The Tribunal noted the review applicant’s request that the 12-month overseas residency requirement be waived due to compelling or compassionate circumstances, however, the Tribunal found that the Act did not give the decision-maker discretion to waive the requirements of cl.101.211(2). It therefore found that, as neither the review applicant nor his spouse had been residing overseas for more than 12 months at the time of application, the Australian immigration visa applicant was not adopted by a person who met the requirements of cl.102.211(2)(b)(ii). The Australian immigration visa applicant therefore did not meet the criteria in cl.102.211(2) and subsequently was not eligible for the grant of an Adoption visa.

0906230
17 November 2009, Perth
Ms L Ward, Member

OTHER FAMILY (RESIDENCE) (CLASS BU) – SUBCLASS 835 (REMAINING RELATIVE) – CL.835.213 – ADOPTION – A delegate of the Minister refused the applicant’s Subclass 835 visa application as the Australian immigration visa applicant did not satisfy cl.835.213 of the Regulations. The review applicant provided copies of birth certificates and adoption papers to show that the review applicant and the Australian immigration visa applicant were biological twins and that they had been adopted out to different families a few months after their birth. The review applicant claimed that she became an Australian citizen in her early 20’s and that she was married soon after. She claimed that in 2008 she was finally able to locate her twin sister after many years of searching and that after more than fifty years the applicants wished to spend the remainder of their lives together. The delegate found that because the applicant was formally adopted in Malaysia, her legal link to her biological twin sister was severed. The delegate therefore found that the review applicant was not a ‘relative’ or ‘close relative’ of the applicant and hence she failed to meet cl.835.213(a).

Held: Decision under review set aside.

The Tribunal accepted from the evidence provided that the applicants were biological twin sisters and that they had been adopted out to different families a few months after their birth. The Tribunal noted that it was required to decide if the term ‘sister’ as used in the Regulations included a biological sister who was then subject to an adoption order. The Tribunal found that the policy relating to the term ‘remaining relative’ required an expansive view of an applicant’s relationship with the sponsor, as set out under Departmental policy guidelines. The Tribunal found that this view was consistent with a review applicant being able to sponsor a biological sister who was separated from them shortly after birth via adoption, and that a ‘close relative’ as defined at the time of application included ‘sister’ and ‘step sister’. Therefore, the Tribunal found that biological sisters were still ‘sisters’ under the Regulations after adoption, and that accordingly, the Tribunal was satisfied that the applicants were ‘sisters’ as set out in the definition of a ‘close relative’ and therefore met cl.835.213 of the Regulations.

Carer Visas

0803462
18 June 2009, Brisbane
Mr D Smyth, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 116 (CARER) – CL.116.211 – R.1.03 – DEFINITION OF RELATIVE – A delegate of the Minister refused to grant the applicant a Subclass 116 visa as she was found not to be the carer of an Australian relative. The Australian immigration visa applicant is a 62 year old Indian woman whose husband is also included in the application. She was sponsored by her son, the review applicant, who is married and has a child. The review applicant claimed that his wife had become blind following surgery in October 2006 and that she is eighty per cent blind. The Australian immigration visa applicant stated that her daughter-in-law needed her assistance with daily tasks such as bathing, cooking, shopping and house cleaning. She claimed she would also look after her five-year-old grandson and she would be happy to care for her daughter-in-law for the rest of her life. Although her son provided assistance temporarily, he worked full-time and he was unable to provide the required ongoing daily care. She claimed her assistance would be invaluable to her daughter-in-law’s physical condition and that her care would significantly improve the family’s lifestyle. Although assistance had been sought, agencies advised they were unable to provide long-term assistance. Reports provided in support of the application state that the review applicant’s wife’s condition affects her ability to live independently and that her eye condition was permanent. One report stated that a shortage of medical professionals in Australia had impacted the number of places available in nursing homes and residential care and that it was unreasonable and impractical to expect another relative or resident to provide the required assistance as they also work and have their own families to care for. It was submitted that the Australian immigration visa applicant’s ability to provide the substantial and continuing level of care required, had already been demonstrated while she was in Australia.

Held: Decision under review set aside

The Tribunal found that it was clear from the application that the Australian immigration visa applicant claimed to be the carer of her son, the review applicant. The material submitted with the application also clearly referred to the review applicant’s need for assistance in providing direct assistance to his wife. The Tribunal was satisfied that the review applicant’s wife was a member of his family unit thereby meeting r.1.15AA(b)(i). The Carer Visa Assessment Certificate indicated that, because of her condition, the review applicant’s wife would continue for at least 2 years to require direct assistance in attending to the practical aspects of daily life. Based on this, the Tribunal found that the review applicant’s wife exceeded the impairment rating of 30 and therefore met the requirements of r.1.15AA(1)(c). The Tribunal took into account a doctor’s opinion that the review applicant’s wife’s condition has had “a devastating impact on her ability to live independently”. It also attached significant weight to this opinion expressing that the review applicant’s wife required supervision for her safety 24 hours a day seven days a week. The Tribunal found that although the review applicant had recruited various relatives to supervise and assist his wife, when he did not have such assistance available, this caused him great stress and difficulty. The Tribunal accepted that the review applicant experiences considerable difficulty in balancing the demands of providing for the family, looking after his son and providing for his wife’s care needs. He is able to do so at present only with the assistance of relatives in the short-term. The Tribunal found that he has a permanent or long-term need for assistance in providing direct assistance to his wife. The Tribunal is satisfied that this assistance cannot reasonably be obtained from her relatives in Australia and it is satisfied that they are unable or unwilling to provide the assistance required. The Tribunal is satisfied that, in spite of her age, the Australian immigration visa applicant would be willing and able to provide the review applicant with substantial and continuing assistance of the kind needed. Accordingly, the Tribunal found that the first named Australian immigration visa applicant satisfied the requirements of cl.116.211, 116.212 and 116.221 of the Regulations.

0806559
26 August 2009, Sydney
Mr D Dobell, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 116 (CARER) – R.1.03 – DEPENDENT CHILD – R.1.12 – MEMBER OF FAMILY UNIT – A delegate of the Minister refused to grant the two secondary applicants Subclass 116 visas on the basis that they did not satisfy r.1.12 because they were not considered to be ‘members of a family unit’. The primary Australian immigration visa applicant was the applicants’ mother and her husband and three children applied as part of her family unit. The applicants’ parents and younger sister were granted visas. The first named Australian immigration visa applicant is 25 years old. He finished high school in 2002, after which he claimed to have worked for 6 months before commencing 3 years army service. The applicant claimed that after his release from the service in early 2006, he spent several months revising for his university entrance exams; however he was not successful in the exams, so he studied mechanics. He left this course when he qualified as a truck driver and began working full time. He claimed that he undertook some evening study before returning to full time study in informatics in 2008. At the time of the review, the first named applicant claimed he had finished the IT course and was looking for full time employment. Departmental records stated that he was still working as a truck driver at the time of the visa application; however the applicant claimed he was just filling in for a friend on the day the Department phoned. He claimed that when his parents left Vietnam in 2008 they left money in a bank account for financial support and that the second named applicant was in charge of this account. She claimed to have left school in 2003, commenced full time university study and worked part time. She claimed that she failed a number of subjects and had to repeat these in addition to completing a 2 month full-time work placement. She completed the course at the end of 2008. Departmental records queried whether the second named applicant was studying full time at the time of the visa application. At the Tribunal hearing, the second named applicant claimed that the Department did not allow her to tell the whole story, and that the jobs listed on the application were only part time jobs while she undertook study. The second named applicant commenced further full time study in mid-2008 and claimed to be engaged in full time study at the time of review.

Held: Decision under review affirmed in respect of the first applicant; decision under review set aside in respect of the second applicant.

As both applicants were over the age of 18 at the time of application, the Tribunal was required to determine whether they were ‘dependent’ on their parents, and whether at the time of decision, they were wholly or substantially reliant on another person for financial support for basic needs, for a substantial period immediately before that time. The Tribunal found the first applicant’s explanation to be unconvincing as to why he was working when interviewed by the Department when he claimed to be studying full time. The Tribunal found that irrespective of his employment on that particular day, on the first applicant’s own evidence at hearing, he was working in full time paid employment from April 2007 to at least August 2008, a period of 1 year and 4 months. The Tribunal was not satisfied that during this period, the first named applicant’s financial reliance on his parents was greater than his reliance on himself for financial support for his basic needs. As the Tribunal found that the first named applicant did not meet the requirements of ‘dependent’ under r.1.03, it found that he could not be considered a ‘member of the family unit’ under r.1.12 at the time of decision. The Tribunal was satisfied that the second named Australian immigration visa applicant was not working on a full time basis from August 2007 until at least September 2008 and that there was a 2 month full-time work placement for her course undertaken during that time. It was further satisfied that she was substantially reliant on her parents for a substantial period immediately before the date of decision. The Tribunal noted that while the second applicant may have had some part-time employment between August 2007 and at least September 2008, it was satisfied that this did not break her financial dependence on her parents. Thus, the Tribunal was of the view that the second named applicant met the requirements of ‘dependent’ under r.1.03, and therefore was considered a ‘member of the family unit’ under r.1.12.

0808505
7 September 2009, Melbourne
Ms D Hubble, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 116 (CARER) – R.1.15AA – DEFINITION OF CARER – A delegate of the Minister refused the applicant’s Subclass 116 visa on the basis that the first named Australian immigration visa applicant did not satisfy cl.116.211 of the Regulations because she failed to meet the definition of “carer” set out in regulation 1.15AA. The delegate found that the required daily assistance could be reasonably obtained by the sponsor from relatives residing in Australia as well as from welfare, hospital, nursing or community services in Australia. It was submitted that the review applicant suffered from a number of ailments, including blindness. A number of submissions were received from family members stating that they were unable to care for the review applicant due to individual family and business commitments. A submission was also received from a GP setting out the review applicant’s multiple ailments and medications and supported the Australian immigration visa applicant’s application on the basis that she was able to provide the required ongoing daily care for her aunt. The Australian immigration visa applicant also provided a Health Services Australia (HSA) certificate in relation to a medical assessment of the review applicant.

Held: Decision under review set aside.

The Tribunal accepted that the Australian immigration visa applicant was the review applicant’s niece, and found that a ‘niece’ was included in the definition of the term ‘relative’ provided by r. 1.03. The Tribunal found that, at the time of application, the Australian immigration visa applicant claimed to be the carer of an Australian relative and therefore satisfied the requirements of cl.116.211. The Australian immigration visa applicant provided a HSA certificate confirming that the review applicant had a medical condition that was causing her physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life. The Tribunal accepted that the certificate indicated that the review applicant had an impairment rating of 40 and that because of her medical condition she had, and would continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal found that an impairment rating of 30 was specified in the Commonwealth of Australia Gazette, and accordingly, the Tribunal found that the HSA certificate satisfied the requirements of r.1.15AA(1)(c). Given the multiple medical conditions suffered by the review applicant, and the fact that she is blind, the Tribunal accepted that she requires constant monitoring and supervision. Although the review applicant resided with her son and daughter-in-law, given their full-time business commitments the Tribunal accepted that they were unable to provide the level of care required by the review applicant. Based on this and the other available evidence, the Tribunal considered that the review applicant’s care needs were only partially being met under the current circumstances. Accordingly, the Tribunal found that the necessary assistance could not reasonably be obtained from any other relative of the review applicant in Australia. The Tribunal found that the review applicant did not receive any assistance from welfare, hospital, nursing or community services in Australia, and that even if such services were made available, the Tribunal considered that they would be inadequate to meet the review applicant’s day to day care needs. Given her previous history of caring for the review applicant, the Tribunal accepted that the Australian immigration visa applicant was knowledgeable about the review applicant’s medical conditions, current treatment and day to day care needs, and that she was willing and committed to providing ongoing assistance to the review applicant. Accordingly, the Tribunal found that the Australian immigration visa applicant satisfied the requirements of cl.116.211 and cl. 116.221 of the Regulations for the grant of a Subclass 116 (Carer) visa. A delegate of the Minister refused the visa application on the basis that the Australian immigration visa applicant did not satisfy cl.679.224 as he was not satisfied that the Australian immigration visa applicant’s expressed intention to only visit Australia was genuine. The Australian immigration visa applicant was sponsored by her niece. The Australian immigration visa applicant claimed that her husband and son would remain in China during her proposed visit to Australia. The delegate noted that the Australian immigration visa applicant had stated she was an accountant but she had told an immigration officer she was a clerk. Departmental records indicated the Australian immigration visa applicant’s parents had travelled to Australia in mid 2007 and that they were currently still onshore. The review applicant claimed that they had re-entered China and had since died and she provided evidence of this to the Tribunal. The review applicant claimed that the Australian immigration visa applicant wanted to come to Australia to see her mother (the Australian immigration visa applicant’s sister) as she is unable to travel to China due to inflammatory arthritis which restricts her mobility. They have not seen each other since 2001. A medical certificate was provided as evidence of this. The Australian immigration visa applicant claimed she has a good job in China as an accountant, she earns good money and has a regular income and that she owns property in China. She claimed that her family had a good visitor record and that, as she works at the airport, she was concerned about maintaining her good reputation. She further claimed she would ensure the Australian immigration visa applicant abided by her visa conditions as she would like other family members to also visit Australia. She claimed her previous agent told her to put down clerk as her occupation. She claimed that as an accountant her work also involved administration; so when she was asked her about her employment she just said clerk. She claimed her incentives to return to China were that she had a good job, she owned property, she would soon be entitled to retire, she would have access to her superannuation and her husband and son needed her to care for them.

Child Visas

0900483
18 March 2009, Sydney
Ms K Raif, Member

CHILD (RESIDENCE) (CLASS BT) – SUBCLASS 802 (CHILD) – CL.802.213 – ADOPTED CHILD – A delegate of the Minister refused to grant the applicant a Subclass 802 visa on the basis that she did not meet cl.802.213 because her sponsor was the adoptive parent of the applicant and the adoption did not meet any of the alternative provisions in that Regulation. The applicant presented a copy of an adoption order and a birth certificate naming the sponsor and her husband as her parents. The applicant claimed that in the absence of her sponsor she would not have anyone to care for her, as her biological mother had to hide from her family who disowned her and her father did not want anything to do with the family. The applicant claimed that the sponsor could not have children and made a rushed decision when she and her husband adopted the applicant who was born suddenly and prematurely. Consequently, she and her husband did not have a chance to reside overseas for 12 month. The applicant further claimed that her sponsor had been unaware that she could seek approval for the adoption from a competent authority in Australia as required under Article 14, Chapter IV of the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the Adoption Convention). The applicant claimed that her sponsor had provided special care for her since birth because she was premature and if the visa was not granted, she would give up her job and return to Malaysia in order to reside with the applicant.

Held: Decision under review set aside

The Tribunal was not satisfied on the evidence before it that the adoption of the applicant was in accordance with the Adoption Convention and an adoption compliance certificate was in force in relation to the adoption. It was, therefore, not satisfied that the applicant met cl.802.213(2) of the Regulations. The Tribunal accepted that the Sponsor was an Australian citizen at the time when the adoption took place and thus the applicant did not meet cl. 802.213(3). Further, it found that no evidence had been presented to demonstrate that before the adoption, a competent authority in Australia had approved the sponsor as a suitable adoptive parent, or the sponsor and her husband as suitable adoptive parents, for the applicant precluding the applicant from meeting cl.802.213(4). The Tribunal found that the sponsor had not resided overseas for a period exceeding 12 months when the adoption took place and did not meet cl.802.213(5)(b)(i) of the Regulations. However, it accepted the applicant’s claims about her circumstances and relationship with the sponsor, finding she had cared for the applicant since birth and formed a close relationship with the child. The Tribunal was satisfied that these circumstances constituted compelling or compassionate circumstances so that cl.802.213(5)(b)(i) should not apply to the applicant. The Tribunal was also satisfied that cl.802.213(5)(c) did not apply and the sponsor had lawfully acquired full and permanent parental rights by the adoption satisfying cl.802.213(5)(d) of the Regulations. Consequently, the Tribunal found that the applicant satisfied the requirements of cl.802.213 of the Regulations for the grant of the visa.

071958766
2 April 2009, Melbourne
Mr D Mitchell, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 101 (CHILD) – CL.101.213 – FULL-TIME COURSE OF STUDY – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 101 visa on the basis that he did not satisfy cl.101.213 of the Regulations. He completed his secondary education and began university studies. Two years later, his parents and three siblings migrated to Australia and he remained in the Philippines. He studied continuously until the end of first semester in October 2006. He did not re-enrol for Second semester 2006-2007. He claimed he was sick and was depressed because his family had left, he felt alone and this affected his studies. A university transcript showed he was not enrolled in Second semester 2006-2007 or First semester 2007-2008. He applied for his visa in 2007 while he did not study full-time. He claimed there were compelling reasons for reuniting the family and asked this be considered because he was the last remaining relative of the review applicant and lived on his own in the Philippines.

Held: Decision under review affirmed

The question for the Tribunal was whether the Australian immigration visa applicant was engaged, participated in or entered full-time study between the beginning of Second semester 2006-2007 and June 2007. The Tribunal found he was not enrolled for Second semester 2006-2007 or for First semester 2007-2008 when he applied for the visa in June 2007. He was not engaged in, or participated in, or entered upon a full-time course of study and had not undertaken full-time study in the seven months before he lodged his visa application. The Tribunal was not satisfied that since turning 18 he had, at the time of application, been undertaking full-time study at an educational institution leading to the award of a professional, trade or vocational qualification. Accordingly, he did not satisfy the criteria for a Subclass 101 visa. There was no provision for the Tribunal to waive compliance with the Regulations on compelling compassionate, humanitarian or any other grounds.

0905158
20 August 2009, Sydney
Ms K Raif, Member

CHILD (RESIDENCE) (CLASS BT) – SUBCLASS 802 (CHILD) – CL.802.214 – DEFINITION OF DEPENDANT - A delegate of the Minister refused to grant the applicant a Subclass 802 visa on the basis that she did not meet cl.802.214(1)(b), as she was employed on a full-time basis. The delegate also found that the applicant did not meet cl.802.214(1)(c) which states 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 is required to have been undertaking a full-time course of study at an educational institution, leading to the award of a professional, trade or vocational qualification. The applicant was sponsored by her mother, who is an Australian permanent resident. She arrived on a working holiday visa in order to visit her mother after completing her university studies in June 2008. She had been enrolled to begin a Masters degree in the United Kingdom but deferred this for twelve months in order to come to Australia. After arriving in Australia she decided to apply for a Subclass 802 visa, and she subsequently enrolled in a university course commencing in 2010. The applicant claimed that she had worked full time in a backpacker’s accommodation for three weeks in return for accommodation only. She claimed she had also worked as a sales assistant between October 2008 and February 2009 and as an administration assistant from February 2006 to August 2008. She stated that the sponsor provided her with money, food, clothing and general spending money, as well as accommodation, tuition fees and other expenses and that such support amounted to $200 per week. The sponsor stated that her daughter had always been dependent on her. She argued that three weeks of employment could not reasonably be said to meet the applicant’s basic needs for any substantial length of time and that having a casual job during breaks in study should not be considered full-time employment in terms of an ongoing occupation.

Held: Decision under review affirmed

The Tribunal found that while the applicant had been enrolled in a Masters degree and had deferred the course, it did not accept that the mere acceptance in a course, or enrolment in one, constituted study contemplated by cl.802.214. In the Tribunal’s view, this provision referred to active participation in a course of study, including attendance at study sessions and participation in assessments and examinations. Further, it found that an enrolment without any other activity by the student did not amount to study. As the applicant had not undertaken any other study, the Tribunal found that the applicant had not been undertaking a full-time course of study since July 2008 when she completed her university degree. Although the applicant claimed that during the period of her residence in Australia she was prevented from pursuing any studies earlier than 2010, the Tribunal found that she had made no inquiries with educational institutions about commencing the course earlier. Also, with regard to financial or visa restrictions, the Tribunal noted that the same restrictions would apply at the time of her subsequent enrolment and that despite these, the applicant had been able to enrol in a course to commence in 2010. The Tribunal found the period in which the applicant did not pursue full-time study, a period exceeding one year, to be a significant one. Further, in relation to the issue of full time work, the Tribunal found that the legislation did not distinguish between work that reflected an ongoing occupation and commitment to future employment, and merely brief periods of employment for a particular purpose. Rather, the legislation simply referred to full-time employment. Whether or not such employment was during a study break, it was, nevertheless, employment. The Tribunal was of the view that it was unable to consider the nature or duration of such employment or the Australian immigration visa applicant’s perceptions about it. It held that it must make a finding of fact as to whether or not the Australian immigration visa applicant was employed at the time of the application. Accordingly, the Tribunal found that the applicant was employed on a full-time basis at the time when the application was made, albeit on a short-term basis. Therefore, the Tribunal was not satisfied that the applicant met cl.802.214(1)(b) of the Regulations.

0905422
25 September 2009, Melbourne
Ms M Urquhart, Melbourne

CHILD (RESIDENCE) (CLASS BT) – SUBCLASS 802 (CHILD) – CL.802.214 – REASONABLE PERIOD – A delegate of the Minister refused to grant the applicant a Subclass 802 (Child) visa on the basis that the applicant did not meet cl.802.214(1)(c) because it could not be satisfied that since turning 18, or within 6 months or a reasonable period after completing the equivalent of year 12 in the Australian school system, the applicant had been undertaking a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The application was made on the basis that the applicant is the dependent child of an Australian permanent resident, his father (the sponsor). The sponsor submitted that the applicant met all the criteria for the grant of the visa, except that his full time studies did not commence within 6 months of completing secondary school in 2002. The applicant came to Australia in 2003 as a member of the family unit of his father, who had been granted a Subclass 457 visa. The sponsor claimed that, after arriving in Australia, the applicant completed a number of study courses related to sport and fitness health. In 2007 he returned to the UK after being refused the right to remain in Australia as a dependent of his father. In the UK the applicant enrolled in the Royal Marines but was medically discharged in 2008. The Australian immigration visa applicant then returned to Australia and commenced full time studies at the College of Sports Therapy in 2009. The sponsor argued that, apart from his time in the Royal Marines, the applicant had been studying almost constantly since 2003.

Held: Decision under review affirmed.

The Tribunal considered the meaning of “reasonable time” as used in cl.802.214(1)(c) and took into account the surrounding circumstances including the actual time involved and the numerous study activities undertaken by the applicant during the relevant period. It noted that, with the exception of the time spent in the Royal Marines, all courses studied by the applicant were in the area of sports health and therapy and that this is the area in which he is now engaged in full time study. The Tribunal accepted the sponsor’s submission that the issue of the applicant’s residency and his ability to remain with his family in Australia may have impacted his study history. However, the Tribunal noted that the applicant appeared to have spent a year subsequent to his arrival in Australia in 2003, without studying. He then embarked on a variety of part time courses for approximately four years. The Tribunal noted that only some of the courses were studied at educational institutions. The Tribunal further noted that, subsequent to his time in the Royal Marines, the applicant spent a further year not studying. The Tribunal found that, even taken cumulatively, the timeline of study put forward by the applicant did not qualify as a “reasonable time”. The Tribunal found that the time spent by the applicant in the Royal Marines appeared to have been a very clear break in the “reasonable ongoing support” and did not appear to suggest that the applicant was dependent on the sponsor during this period. Thus, the Tribunal was not satisfied that the applicant met cl.802.214(1)(c) for the grant of the visa.

0806711
9 November 2009, Brisbane
Ms R Johnston, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 101 (CHILD) – CL.101.211(1) – DEPENDANT CHILD – DEFINITION OF DEPENDANT – A delegate of the Minister refused the applicant’s Subclass 101 visa application on the basis that he was not satisfied that the applicant was wholly or substantially dependent on the sponsor for financial support to meet her basic needs for food, clothes and shelter. The review applicant claimed that he separated from the Australian immigration visa applicant’s mother when the Australian immigration visa applicant was about 11 years old, and that when the Australian immigration visa applicant was about 13 years old, he came to Australia. Since then, he claimed he had provided her with financial support. The Australian immigration visa applicant claimed that she resided with her maternal grandparents and her mother in the same house in Santiago, Colombia, and that she did not pay rent, utilities or other expenses associated with living in the house. The Australian immigration visa applicant claimed that, for the last four years, her grandparents had provided her with shelter and food however the review applicant paid for her clothing, studies, books, and personal effects. Evidence was submitted indicating that the Australian immigration visa applicant was undertaking full time study. Bank Statements were also provided in the name of the review applicant which showed that the Australian immigration visa applicant withdrew, on average, approximately $330AUD per month from the account, and that neither the Australian immigration visa applicant’s grandparents nor the Australian immigration visa applicant’s mother were able to draw on the account. The review applicant claimed that the minimum wage in Colombia was about $300AUD per month and that this demonstrated that the financial support he had been providing to the Australian immigration visa applicant, who was single, covered her basic needs, her personal effects and the costs associated with her studies.

Held: Decision under review set aside.

The Tribunal found that, on the basis of the Australian immigration visa applicant’s birth certificate, the Australian immigration visa applicant was the natural child of the sponsor, the review applicant. The Tribunal noted that cl.101.211 required that the Australian immigration visa applicant be less than 25 years old at the time of application, and that the birth certificate showed that the Australian immigration visa applicant was born in 1987. Based on this evidence, the Tribunal accepted that at time of application, the Australian immigration visa applicant had not yet turned 25. The Tribunal accepted that the Australian immigration visa applicant was studying full time, as evidenced by the certificate from the Institute of Professional and Technical Education. The Tribunal took into account the documentary material, including bank statements, which were submitted to demonstrate the Australian immigration visa applicant was financially dependent on the review applicant. The Tribunal accepted the oral evidence given by the review applicant at the hearing and the statutory declarations made by family members as evidence that the Australian immigration visa applicant had been substantially reliant on the review applicant for financial support to meet basic needs for food and clothing. The Tribunal considered it plausible, given that the applicant’s grandparents were pensioners, that the Australian immigration visa applicant would be using the monies provided by the review applicant for food and clothing which are two of the three basic needs. The Tribunal consulted independent country information in relation to the cost of living in Colombia which suggested that the monthly minimum wage was approximately 433,700 pesos (about $230AUD). The Tribunal noted that the review applicant, as a single person, had been receiving a monthly allowance of more than $300AUD from the review applicant, which appeared to be more than the monthly minimum wage on which a family in Colombia may be expected to exist. Notwithstanding the fact that the Australian immigration visa applicant resided rent free with her grandparents, the Tribunal accepted that the Australian immigration visa applicant had been substantially reliant on the review applicant for financial support to meet her basic needs. The Tribunal therefore found that, at the time of application, the Australian immigration visa applicant had been dependent (as that term is defined in regulation 1.05A(1)) on the review applicant for a substantial period, and that she remained so dependent at the time of decision. Consequently the Australian immigration visa applicant satisfied the definition of dependent child as set out in r.1.03 and subsequently met the requirements of cl. 101.211 and cl.101.221 of the Regulations.

0905602
29 October 2009, Sydney
Ms J Marquard, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 101 (CHILD) – CL.101.213 – FULL TIME STUDY – A delegate of the Minister refused to grant the applicant a Child (Migrant) visa on the basis that the applicant did not satisfy cl.101.213 because he was over 18 years old at the time of application and he did not provide evidence to show he had been studying in an educational institution leading to the award of a recognised professional, trade or vocational qualification. The delegate’s decision record stated that the sponsor (the applicant’s mother) visited the Department’s offices in Ho Chi Minh City in 2008 to enquire about possible visas and she advised that the applicant had studied a trade for 2 years and that he had worked in that field up until then, with the exception of a visit to Australia. The applicant was 24 years old at the time of application. He claimed that he completed High School in 2002 and then undertook preparatory university courses in physics and mathematics. From 2004, he claimed that he studied a refrigeration electricity course. He received his certificate of vocation in 2006, and claimed that he subsequently undertook work experience for the period of his probation. The applicant claimed that he had never been in employment or received an income and that any work he had done had been work experience for his studies. The sponsor and her husband (the applicant’s stepfather) provided evidence of financial remittances to the applicant. They claimed that they had sent money each month to cover the applicant’s living and study expenses from 2004 up to the time of review. The applicant claimed to have begun studying English after completing his refrigeration technician’s course as he wanted to continue his refrigeration studies at university in Australia when he joined his mother. He claimed that he was unable to provide evidence of studying English from March 2007 to March 2008 because he lost his receipt for tuition, and the college refused to provide evidence of his attendance. He claimed that the course helped him achieve his IELTS test score of 3.5 in July 2008, evidence of which was submitted.

Held: Decision under review set aside.

The Tribunal accepted that the only work the applicant had been involved in was work experience for his studies and it accepted that the applicant was not engaged in full-time work. The Tribunal found that, within a reasonable time after completing high school, the Australian immigration visa applicant had undertaking a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal had concerns that the applicant had studied English as claimed from March 2007. While the Tribunal found the applicant’s explanation for the absence of documentation difficult to believe. It accepted that the fact that he was able to achieve an IELTS result of 3.5 in July 2008 was evidence that he had been studying English. The Tribunal noted that while cl.101.213 contemplates a single full-time course of study, it may well extend to cover a qualification that is obtained upon satisfaction of a variety of criteria being fulfilled. In this context, the Tribunal accepted, based on the documents provided, that the applicant was studying at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal also accepted that the applicant wished to continue studying towards the award of a higher qualification in his area, but studied English first to enable him to do so at an Australian university once he is reunited with his mother. The Tribunal also accepted that his course attendance combined with his study time amounted to full time study. The Tribunal accepted the evidence of the applicant, the sponsor and her husband that the applicant was dependent on the sponsor and that he did not receive any financial support from any other source. On this basis, the Tribunal found that, at the time of application, the applicant was a dependent child of an Australian permanent resident and had not turned 25. Therefore, the Tribunal found that the applicant satisfied the criteria in cl.101.213 of the Regulations.

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