1919165 (Refugee)

[2021] AATA 212

1919165 (Refugee) [2021] AATA 212 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919165

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Kate Millar

DATE:29 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(b) of the Migration Act 1958.

Statement made on 29 January 2021 at 5:21pm

CATCHWORDS
REFUGEE – protection visa – Egypt – member of family unit of mother who has been granted protection visa – dependent child who has turned 18 – previous part-time worker now studying full-time – no requirement that dependency be for a substantial period – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 32(2)(b), 65, 91WB(2)
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), (2), 1.12(1)(b)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] is a citizen of Egypt.  She came to Australia as a visitor in 2012, then again as a student in 2015. Between 2018 and 2018 she held a [temporary] visa as a secondary applicant on her brother’s visa.

2. On 7 August 2015 [the applicant] applied for a protection visa on the basis that she feared harm as a Coptic Christian living in Egypt.  Her application was refused as a delegate of the Minister was not satisfied that she faced a real chance or persecution because of her religion, or for any other reason, or a real risk of significant harm if she were to be returned to Egypt. 

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

4. As [the applicant] is the member of the family unit of her mother, who has been granted a protection visa, the matter under review is remitted for reconsideration by a delegate of the Minister.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Paragraph 36(2)(b) of the Act specifies that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen who is a person to whom the Minister owes protection obligations because the person is a refugee and holds a protection visa of the same class as that applied for by the applicant. 

7. This provision is limited by s.91WB which states that the Minister must not grant a protection visa to a family applicant on the basis of satisfying s.36(2)(b) unless the family member applies for the protection visa before the family visa holder is granted a protection visa (s.91WB(2)).

8. The issues in this matter are:

   ·     Did [the applicant] apply for a protection visa of the same class as [Ms A]?

   ·     Is [the applicant] a member of [Ms A’s] family unit, and

   ·     Does the limitation in s.91WB apply

   Does s.91WB apply?

9. [The applicant] applied for a protection visa of the same class as her mother, [Ms A].  After the delegate made a decision refusing [the applicant] and [Ms A] a protection visa, this Tribunal (differently constituted) set aside the decision to refuse [Ms A] a protection visa.  On 28 March 2019 [Ms A] was granted a protection visa. 

10. This was after [the applicant] applied for the protection visa, and s.91WB does not apply to [the applicant].

    Did [the applicant] apply for a visa of the same class?

11. [The applicant] has applied for a protection visa of the same class (Class XA) visa as the visa applied for by her mother.  The remaining question is whether she is a member of [Ms A’s] family unit.

    Is [the applicant] a member of [Ms A’s] family unit?

12. At the time [the applicant] applied for the visa, the definition of member of the family unit was set out in r.1.12 of the Migration Regulations 1994 as including a dependent child of the family head (r.1.12(1)(b)). A translation of [the applicant]’s birth certificate names her mother as [Ms A – alternative spelling], and the Tribunal is satisfied this is [Ms A], and that [the applicant] is the child of [Ms A].

13. Dependent child has the meaning in r.1.03, and  means the child or step-child of the person (other than a child who is engaged to be married or has spouse or defacto partner) who either has not turned 18, or has turned 18 and is dependent on the person or incapacitated for work due to the total or partial loss of his or her bodily functions.

14. [The applicant] lives with her mother and brother, and there is no information before the Tribunal that would show she is engaged to be married or has a spouse of defacto partner. 

15. [The applicant] has turned 18, and as she is not incapacitated for work the remaining question is whether she is dependent on her mother.

16. The term “dependent”, as it was at the time [the applicant] applied for the visa, is defined in r.1.05A.  As it applies to an applicant for a protection visa, as set out in r.1.05A(2), a person is dependent on another person if he or she is wholly or substantially reliant on the other person for financial, psychological or physical support.

17. The definition in r.1.05A(1) requires this to be for a substantial period immediately before the time it is necessary to establish whether the first person is dependent on the other person.  As r.1.05A(1) is subject to r.1.05A(2), and r.1.05A(2) does not require the financial, psychological or physical dependence to be over a particular period of time, the Tribunal finds that this provision does not have a temporal element.

18. [The applicant] has previously worked part time, however her employment ceased in January 2020.

19. [The applicant] is currently a full-time student and provided a confirmation of enrolment showing that in 2021 she has a full-time equivalent load of 0.875.  She provided her mother’s bank statement that shows her mother pays the rent at the property where they live to [a named organisation] as well as meeting grocery expenses.  She states her brother pays her tuition expenses.  Both [the applicant] and [Ms A] provide statutory declarations stating [the applicant] is financially dependent on [Ms A], and that she has not received any income other than a $500 payment distributed to all international students on 1 June 2020. 

20. The Tribunal finds at the time of this decision, [the applicant] is wholly or substantially reliant on [Ms A] for financial support, and meets the definition of dependent child in r.1.05 of the Regulations.

21. It follows that she is a member of [Ms A’s] family unit.

22. It is not necessary to decide if she is psychologically reliant on [Ms A], however the Tribunal notes that [the applicant] provide a report by [Mr B] regarding counselling sessions he has had with him from September 2019.  [Mr B] is not a psychologist and does not appear on the AHPRA Register of Practitioners.   [Mr B], who describes himself as an accredited and registered clinical counsellor, states [the applicant] was referred ton him by her general practitioner and they have had 21 sessions which initially focussed on family relationships and expanded to other friendships and her visa situation.  He states the circumstances of coming to Australia and her separation from her father and extended family, and the demands associated with settling in Adelaide have generated a measure of psychological dependence on her mother, which is not unhealthy.  He states if required to live alone insecurity and anxiety could become significant issues and may impair her ability to function well. 

    CONCLUSION

23. [The applicant] is a member of the family unit of [Ms A], who is a person who satisfied s.36(2)(a) and who holds a protection visa.

    DECISION

24. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(b) of the Migration Act.

    Kate Millar
    Senior Member