Barrick (Migration)

[2023] AATA 1500

Barrick  (Migration) [2023] AATA 1500 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ryan Anthony Barrick
Mr Cruz Anthony Barrick

REPRESENTATIVE:  Mr Graham T Scarratt (MARN: 9801552)

CASE NUMBER:  2103644

HOME AFFAIRS REFERENCE(S):          CLF2010/22247 CLF2020/87673

MEMBER:Joseph Francis

DATE:25 May 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets:

·Regulation 1.15 for the purpose cl 835.221 of Schedule 2 to the Regulations.

And;

The second named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·Regulation 1.2(1)(b) for the purpose of
cl 835.321 of Schedule 2 to the Regulations.

Statement made on 25 May 2023 at 10:05am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – no near relative requirement – son over the age of 18 at time of decision – whether still a dependent child – ability to work – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.15; Schedule 2, cls 835.221, 835.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2021 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 4 February 2010. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.321

3. The delegate refused to grant the visas on the basis that cl 835.321 was not met because the primary applicant Ryan Anthony BARRICK was found to no longer meet the definition of Regulation 1.15(1)(c) with regards to having no other near disqualifying relatives, as it was determined the secondary visa applicant, his son Cruz Anthony BARRICK, was no longer a dependent child as he was over the age of 18 and was found no longer to be a dependent child as required by Regulation 1.05A at the time of the delegates decision.

4. The applicants appeared before the Tribunal on 13 March 2023. to give evidence and present arguments.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that both visa applications should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the primary applicant is the remaining relative of the sponsor, Jacquelin F Gabriel, who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

8. In this case Jacquelin F Gabriel is the primary applicant’s mother and is an Australian citizen and therefore is an Australian relative for these purposes.

9. The secondary applicant, Cruz Anthony BARRICK is the son of the primary applicant, Ryan Anthony BARRICK.

   Is the applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application and continue to be a ‘remaining relative’ at time of decision: cl 835.212 and cl 835.221. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision.

11. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

12. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.

13. The delegate found that the primary applicant had a ‘near-relative’, being his son aged over the age of 18 at the time of the deleagtes decision. In a separate decision record, the delegate found the son was no longer a dependent of the primary applicant as he had turned 18 years of age and was also no longer dependent on his father.

14. By background, the following timelines are relevant in assessing this matter.

15. Both the applications were lodged on 01 February 2010, over thirteen years ago at the date of this decision.

16. At the time of the application, the secondary applicant was 11 years of age.

17. The delegate refused both applications on the same day, 11 March 2021, almost eleven years after the applications were lodged.  At the time of the delegate’s decision, the secondary applicant was 22 years of age.

18. The applicants have lived in Australia, albeit with the limitations of a bridging visa, during the time it has taken for this matter to be resolved. The Tribunal notes that had a decision on the applications been made between the time of lodgement in 2010 and prior to the secondary applicant’s 18^th birthday in November 2016, less onerous regulations would have been applied and would likely have been that the visas would have been granted.  The secondary applicant was aged 22 at the time of the delegate’s decision on 11 March 2021.

19. Clearly, as the secondary applicant was only 11 years of age when the applications were lodged, he was the dependent child of the Primary applicant being his father. The primary issue now is whether or not the secondary applicant remains a dependent child of his father at the time of this decision.

20. The Tribunal has considered the issue as to whether Cruz Anthony BARRICK has been and remains dependent on his father Ryan Anthony Barrick since turning 18 years of age.

21. The delegate refused the visa for Cruz Anthony BARRICK as they found he was not dependent on the primary applicant and therefore did not meet the definition of 1.05A(1)(a)(i), being that:

22. At the time of decision, the secondary applicant is, and has been for a substantial period immediately before that time, wholly or substantially reliant on his father for financial support to meet his basic needs for food, clothing and shelter as per regulation 1.05A(1)(a)(ii).  Under policy, a ‘substantial period’ is usually taken to be at least 12 months.

23. Additionally, if found to be wholly or substantially reliant on his father, he must also demonstrate that his reliance on these people is greater than his reliance on any other person, or source of support for financial support to meet his basic needs for food, clothing and shelter.

24. The is no submission or evidence to suggest that he is incapacitated for work as per regulation 1.05A(1)(a)(ii).

25. Remarkably, in the case, Cruz Anthony BARRICK requested limited work rights from the Department as both applicants were suffering from financial hardship whilst waiting for the visa applications to be assessed.  Once granted, the ability to work limited hours was part of the assessment by the delegate in determining that the secondary applicant was no longer dependent on his father.

26. The delegate was concerned that no supporting documentary evidence had been provided to the Department as of the financial support provided to Cruz BARRICK by his father.  The delegate did accept, as does the Tribunal, that the secondary applicant continues to reside with his father.

27. The Tribunal was in receipt of further evidence than what was available to the delegate, and particularly the secondary applicant’s actual income and bank statements.  The specific period examined was from 12 February 2020 until 11 February 2021 which was the period requested by the Department.  The Tribunal accepts that the total salary for this period was $24,907 or $478 per week. The Tribunal accepts that this income was predominately used to pool resources with his father in order to meet cost of living requirements for both of them, including rent, food and clothing costs.

28. Whilst assessing these matters is largely subjective, the Tribunal notes that Centrelink benefits, without including medical, pharmaceuticals, dental and public transport which the applicants are not entitled to, are $144 per week less.  Likewise, when considering the cost of travelling to and from his place of employment, it is reasonable for the Tribunal to conclude that the income earned by the secondary applicant is simarly equivalent to a Centrelink unemployment benefit. 

29. Without this income, the Tribunal accepts that it would be exceptionally difficult for the applicants to come close to meeting basic cost of living expenses.

30. Placing weight on the earning history of the secondary applicant, the Tribunal finds that Cruz Anthony BARRICK continues to remain a dependent relative of his father and therefore meets the requirements of regulation 1.05A(1)(b) for the purpose of cl 835.321 in Schedule 2 of the Migration Regulations.

31. The Tribunal also received evidence from other family members who are all Australian citizens.  These declarations provided evidence as to how legislative changes over the 13 years it has been since the applications were lodged have negatively impacted the entire family. The Tribunal notes the secondary applicant has resided in Australia now for some 14 years (since aged 9) and has completed school here.  Amongst other opportunities that have not been made available, the Tribunal notes that the applicant applied to join the Australian Defence Force. However, he was unable to join as a result of his bridging visa status. It is clear that until this matter is resolved both the applicants are significantly hindered from advancing their well-settled and integrated lives in Australia.

32. Given the finding that the secondary applicant meets 1.05(A) the Tribunal then considered the application of regulation 1.15(1)(c) with regards to the primary applicant.

33. Regulation 1.15(2) defines a ‘near relative’ in relation to an applicant. Regulation 1.15(2)(b)(i) stipulates that a child who has turned 18 and is not a dependent child of the applicant, or of the applicant’s spouse or de facto partner (if any) is taken to be a near relative of an applicant. 

34. As the Tribunal has found that Cruz Anthony BARRICK remains financially dependent on his father Ryan Anthony BARRICK, the Tribunal is also satisfied that the Primary applicant meets regulation 1.15(1)(c) within the definition of Remaining Relative at regulation 1.15 for the purpose of cl 835.221 in Schedule 2 of the Migration Regulations at the time of this decision.

35. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

36. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·Regulation 1.15 for the purpose cl 835.221 of Schedule 2 to the Regulations.

    And;

    The second named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·Regulation 1.2(1)(b) for the purpose of cl 835.321 of Schedule 2 to the Regulations.

    Joseph Francis
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).