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

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).
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.
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.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1915129 (Migration)

Details

AGLC: 1915129 (Migration) [2021] AATA 3414
Case: [2021] AATA 3414
Decision Date: 24 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review concerning an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The applicant sought to be recognised as a member of the family unit of the primary visa applicant, who had been granted a Carer visa and was residing in Australia. The core of the dispute revolved around whether the applicant, who continued to live in rented accommodation in Kenya, qualified as a member of the family unit of the primary applicant at the time of the decision.

The Tribunal was required to determine if the applicant met the criteria for being a member of the family unit as defined by Regulation 1.12 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the applicant was a relative of the family head who did not have a spouse or de facto partner, was usually resident in the family head's household, and was dependent on the family head. The definition of "dependent" under Regulation 1.05A(1) was central to this assessment, requiring the applicant to be wholly or substantially reliant on the family head for financial support for basic needs, and for this reliance to be greater than any reliance on any other person or source of support.

The Tribunal reasoned that the applicant met the criteria for being a member of the family unit under Regulation 1.12(1)(e). This conclusion was based on the evidence presented, which indicated that the applicant was more dependent on the primary applicant than on any other source of support for their basic needs. The Tribunal found that the applicant's reliance on the primary applicant for financial support for food, clothing, and shelter was substantial and greater than any other reliance. Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria under clause 116.321 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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 regulationsRegulation 1.121.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subjectto subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (inthis 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 partnerof 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 bemarried 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 Dependent1.05A (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 otherperson:(i) the first person is, and has been for a substantial period immediately before that time, whollyor substantially reliant on the other person for financial support to meet the first person's basic needsfor food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first personon any other person, or source of support, for financial support to meet the first person’s basic needsfor food, clothing and shelter; or(b) the first person is wholly or substantially reliant on the other person for financial supportbecause the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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