1915129 (Migration)

[2021] AATA 3414

1915129 (Migration) [2021] AATA 3414 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1915129

MEMBER:Rosa Gagliardi

DATE:24 August 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application with the direction that Other the applicant meets the following criteria in respect of a Family (Migrant) (Class BO) Subclass 116 visa:

·cl.116.321 of Schedule 2 to the Regulations.

Statement made on 24 August 2021 at 11:45am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – member of the family unit – visa applicant declared to be the sponsor’s brother – greater dependence on the primary visa applicant than the sponsor – mother as the family head – source of funds – continued living in rented accommodation – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 116.321; rr 1.03, 1.05, 1.12

CASES

Al Naqi v MIAC [2007] FMCA 874
Fusi v MIAC, [2012] FMCA 103
Phin v Minister for Immigration & Anor [2103] FMCA

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 April 2019 to refuse to grant the visa applicant a Other Family (Migrant) (Class BO) Subclass 116 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 December 2012. The delegate refused to grant the visa on the basis that the visa applicant was not a member of the family unit of his mother who was granted a Carer visa on 1 May 2019.

3. The review applicant/sponsor appeared before the Tribunal on 19 July 2021 in person to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s spouse in Australia as well as from the applicant in Kenya where he is currently residing. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

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

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant at the time of decision is a member of the family unit of his mother who on 1 May 2019 was granted a Carer visa and is now currently in Australia.  The visa applicant continues to live in privately rented accommodation in Nakuru, Kenya.  Previously, they had been living together in [Refugee Camp 1], also in Kenya.

7. Clause 116.321 requires that, at the time of decision, the applicant is a member of the family unit of the primary applicant. Regulation 1.12 of the regulation defines a member of the family unit.

   Relevant regulations

   Regulation 1.12

   1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject
   to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in
   this subregulation called the family head) if the person is:
   (a) a spouse or de facto partner of the family head; or
   (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
   (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner
   of the family head; or
   (e) a relative of the family head or of a spouse or de facto partner of the family head who:
   (I) does not have a spouse or de facto partner; and
   (li) is usually resident in the family head's household; and
   (III) is dependent on the family head.
   For the purposes of this application, only regulation 1.12(1) is relevant.
   Dependent child is defined at Regulation 1.03.
   
   
   Regulation 1.03 dependent child
   of a person, means the child or step-child of the person (other than a child who is engaged to be
   married or has a spouse or de facto partner), being a child who:
   (a) has not turned 18; or
   (b) has turned 18 and:
   (i) is dependent on that person; or
   (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
   The definition of Dependent that is relevant to this application is found at Regulation 1.05A(1).
   
   
   Reg 1.05A Dependent
   1.05A (1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
   (a) at the time when it is necessary to establish whether the first person is dependent on the other
   person:
   (i) the first person is, and has been for a substantial period immediately before that time, wholly
   or substantially reliant on the other person for financial support to meet the first person's basic needs
   for food, clothing and shelter; and
   (ii) the first person’s reliance on the other person is greater than any reliance by the first person
   on any other person, or source of support, for financial support to meet the first person’s basic needs
   for food, clothing and shelter; or
   (b) the first person is wholly or substantially reliant on the other person for financial support
   because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

8. The applicant was included in Form 470F (Application for migration to Australia by other family members) as a 'Member(s) of the family unit aged 18 or over’, and in Form 40 as an 'applicants family unit member’.  The applicant is declared to be a ’brother’ of the sponsor.  As the applicant has declared that he is the child of the applicant he needs to meet the definition of a dependent child as defined by regulation 1.12(1)(b).  The applicant has declared in his application form that his date of birth is [date]. The delegate had concerns, however, that this was in contradiction with school records he provided which stated his date of birth was in [an earlier year]. Ultimately, however, the delegate decided that based on the information on the file, he/she was satisfied that the applicant was aged over 18 years of age and should be assessed against the definition of dependent child regulation 1.03(b).  The Tribunal is also satisfied that this is the case.

9. To meet the definition of a dependent child 1.03(b)(i), the applicant must satisfy reg 1.05A.  Regulation 1.05A(1)(a) requires that he provide evidence to demonstrate that he is wholly  or substantially reliant on the primary applicant for his basic needs for food, clothing and shelter and that he is more reliant on his mother than on any other source of financial support.  On 03 January 2019, the applicant was requested to provide evidence of his continued financial dependency on the applicant, including a Form 47A and a dependency questionnaire.

10. In the dependency questionnaire provided by the applicant, signed 18 January 2019, he stated that the was financially dependent on his sister, the sponsor, [named], in Australia. He also declared that funds were transferred on a monthly basis in an arrangement that had been in place since 2008. The applicant did not declare any financial support provided by his mother.

11. Previous information provided by the applicant in May 2015 showed some money transfers from his sister, [the sponsor]  to the applicant. On 28 March 2019, the applicant provided a Form 47A. In this form the applicant again declared that he was financially dependent on his sister, [named].

12. At the time of application and at the time of decision the applicant was not and is not working. 

13. The Department placed significant weight on the applicant’s utterances and the few remittances to conclude that the applicant was more reliant on his sister, [the sponsor] in Australia, than on his mother and found that he did not meet the definition of dependent as defined by regulation 1.05A(1)(a).

14. The Department also found that the applicant was not able to demonstrate that he is wholly or substantially dependent on the primary applicant due to an incapacity to work caused by the total or partial loss of his bodily or mental functions and therefore did not meet Regulation 1.05(1)(b).

15. While the Tribunal concurs with the Department’s analysis that the applicant does not meet regulation 1.05(1)(b), the Tribunal’s examination of the evidence and facts have led it to the alternative conclusion in terms of Reg.1.05A(1)(a).

16. From the evidence the Tribunal accepts that the applicant’s mother is the family head.  She has had charge of the applicant while he and she were living in [Refugee Camp 1], Kenya and now that the applicant’s mother is reliant on Australian social services, the applicant continues to be dependent on his mother for financial support to meet his basic needs for food, clothing and shelter; and the Tribunal is satisfied that his reliance on his mother is greater than any reliance by him on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter (Reg.1.05A(1)(a)(i) and Reg.1.05A(1)(a)(ii)).

17. The migration agent has submitted a comprehensive submission on the facts of the case and the circumstances under which the applicant and his mother were sharing a “household” at the time of application within [Refugee Camp 1] and later in Nakuru in Kenya.  This submission reflects the evidence given at hearing by the sponsor, her spouse, the applicant’s mother as well as the applicant himself – all witnesses the Tribunal found to be persuasive and credible.  It is worthwhile reproducing some of that submission in detail:

    Both primary and secondary applicants were residing at the refugee camp in Kenya and had no source of financial support. Both of them solely relied on the Australian sponsor sending them money overseas for their basic needs. They were solely surviving on the rations or other necessary items received from the refugee camp as well as predominantly on the financial assistance received from [the sponsor] who is also [the visa applicant’s] Elder sister.
    
    
    [The sponsor] was sending money for both primary and secondary applicant’s welfare through international money transfer mediums and evidences of such transfers have also attached with this submission. Primary and secondary applicants solely relied on the financial assistance and once the money was remitted to them, Primary applicant was responsible to manage how the money was spent. Primary applicant would spent that money on the secondary applicant’s basic needs such as food, clothing and shelter. Secondary applicant had no access to financial assistance without the primary applicant, thereby, Secondary applicant was indirectly relied on the financial assistance received from [the sponsor] and directly relient (sic) on his Mother – the primary applicant.
    
    
    Subsequently, the primary applicant’s subclass 116 visa application was granted on 01st May 2019 and the secondary applicant was refused on 16th April 2019 on the grounds that the secondary applicant is not dependent on the primary but on the sponsor instead.  The respected delegate erred in understanding the arrangement in place for the welfare of the primary and secondary applicant by [the sponsor].
    ……….

    The Applicant [named] is dependent on [his named mother]. The dependency can be evaluated through the support, which was received by Mother from sponsor [named], while they were spending their time in Kenya Refugee camps. The applicant (in the past, currently in present) is based on the direct support of the Mother. Please find attached money transaction records for your kind perusal.
    ………

    On 18th January 2019 applicant provided information that stated that he is financially dependent on his sister, [the sponsor], in Australia. Yet indeed he opted for the wrong choice of words because it was Mother “[name]” who usually received the money from her daughter for their basic needs and the applicant used to receive it through his mother. But because there was no sound income source for Mother and applicant. He simply transformed the truth in different words without knowing the circumstances. As asserted before please find the current money transactions attached to prove the dependency in question.
    
    
    In the dependency questionnaire, [the visa applicant] misunderstood the question and answered that he is dependent on his sister [the sponsor] for financial assistance from Australia. Looking at the technicality of the question, [the visa applicant] is indirectly dependent on the financial assistance received from [the sponsor] as the money is sent to his mother and then his mother decides on how the money was spent including but not limited to providing him with essential support such as food, shelter and clothing.
    …..
    Because it was Mother who was receiving the money for daily needs while they were in the refugee camp, the interpretation remains the same, and the applicant kept with his pure thought process that sister is the one who is sending money. He never realized the fact that his sister is sending the money to the head of the family “[his mother]” and via her mother he is receiving financial help. This has been stated before in the letter written by the main applicant “[mother’s name]” that in Sudanese culture man plays an important role in the family structure. [The visa applicant] played an important role as a bridge between Mother and Daughter by collecting money from the world remit agency and handing it over to Mother and later receiving financial assistance from her mother. Moreover, in refugee camps applicants were at mercy of the local government and were not allowed to work, hence, the only source of income and financial assistance was the money remitted by [the sponsor] for the welfare of primary and secondary applicant.

    It is noted that the applicant currently does not work and is residing in a refugee camp in Kenya with his mother. However, he has provided no evidence to demonstrate that he is more reliant on his mother for financial support than on his sister and sponsor, [named].
    
    
    The case officer made this comment in the refusal letter but did not consider the fact that the applicants were living a low life in a refugee camp with limited access to the facilities. The case officer should have given thought to compassionate and compelling circumstances on being a refugee in a different country. There is no doubt that the applicant was at a certain age where he can be called a man but while being sheltered in a refugee camp along with his mother left him with no options in another country. Mother is the only financial support system he had. The applicant never received any direct support from the Sponsor but rather relying on support provided to him by his mother and the applicant does meet the definition of dependent as defined by regulation 1.05A(1)(a)(i)(ii).
    …..

18. The Tribunal notes that the regulations do not require, as exhorted by the migration agent, that issues relating to compassion or compelling circumstances need to be taken into account.  Nonetheless, the Tribunal considers that it is relevant to take into account the context in which the applicant and his mother formed a household first in [Refugee Camp 1], and later in Nakuru in rented accommodation.  At hearing the parties have stated, and other witnesses have confirmed in writing, that as the head of the household the applicant’s mother was receiving funds from her daughter (the applicant’s sister) and she would budget that money taking into account the needs of the applicant. 

19. In terms of the applicant’s claims about who was actually supporting him, the Tribunal accepts that he had no thought to the regulations but took a literal view in stating that he was supported by his sister, the sponsor.  What he failed to do was to say that the support was made via his mother, and that his sister had taken no responsibility for him individually as her brother.  The Tribunal acknowledges that it would have taken a level of sophistication and knowledge of the regulations for an applicant to be so specific as to explain how the household budget was being managed by his mother and that he was the beneficiary of such financial support, even though the original source was the sponsor. 

20. The Regulations generally identify a single person on whom a visa applicant is required to be ‘dependent’.  In Fusi v MIAC, [2012] FMCA 103 the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case funds from other family members, when assessing whether she was ‘wholly or substantially reliant’.

21. The Federal Magistrates Court in Al Naqi v MIAC [2007] FMCA 874, took the view that a ‘broad practical judgment’ is required in the circumstances of the particular case and this may require consideration of the underlying source of the support and the reasons for it. Federal Magistrate Riethmuller commented that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’ Applying this to the case at hand, the primary applicant (being the applicant’s mother) may be considered to be the source of the support because it is her relationship with the sponsor (her daughter) that was the reason for the financial support being provided to the secondary applicant (the now applicant) at the time of application.

22. In the case of Phin v Minister for Immigration & Anor [2103] FMCA, the primary visa applicant for a Remaining Relative visa provided funds to her adult son, which she had in turn received from the Australian sponsor, her brother. The Court found that the Tribunal had erred by moving directly from the issue of the source of funds to a conclusion that the adult son was not dependent upon the primary visa applicant, without making a finding on the factual issue that the Regulations required to be addressed, namely whether he was indeed dependent upon her.

23. The evidence submitted by the applicant’s mother showing she was paying for rent for their shelter in Nakuru, Kenya after they left the [Refugee Camp 1], supports the Tribunal’s view that the applicant was dependent on his mother for financial assistance for shelter, food and clothing beyond any other person, including the sponsor.  The evidence that the sponsor was sending money to the applicant’s mother over a period of time also supports this contention.

24. The sponsor has argued that had the applicant become separated from his mother and they had had a falling out, it is highly unlikely that she would have been able to afford to maintain a separate household for the applicant and to provide him with financial assistance to be able to provide the applicant with shelter, food, and clothing for his basic needs.

25. In terms of the time of decision which is what is at issue, the applicant continues to live in rented accommodation being paid for by his mother who is now in Australia.  She stated that now she sends the applicant funds directly from her social welfare payments to meet his needs for shelter, food and clothing.  The Tribunal accepts the sponsor’s statements at hearing that now that her mother has an income of some sort, she is no longer responsible for the applicant.  This is particularly so as all the evidence points to the mother of the applicant having been responsible for the applicant’s financial needs for shelter, food and clothing on a continuous basis.

    Conclusion

26. The Tribunal therefore finds that the applicant meets the definition of dependent as defined in Regulation 1.05.  The Tribunal also finds that the applicant meets the definition of dependent child under Regulation 1.03(b)(i) in that he is a dependent child of the primary applicant (his mother).  Consequently, he meets the definition of a member of the family unit as defined by regulation 1.12(1)(b).

1. As such, the applicant meets Regulation 1.12 and subsequently meets clause 116.321 in Schedule 2 of the Regulations.

   DECISION

2. The Tribunal remits the application with the direction that Other the applicant meets the following criteria in respect of a Family (Migrant) (Class BO) Subclass 116 visa:

   ·cl.116.321 of Schedule 2 to the Regulations.

   Rosa Gagliardi
   Member