Daknach (Migration)

[2024] AATA 1190

Daknach (Migration) [2024] AATA 1190 (17 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Norhan Daknach

CASE NUMBER:  2317218

HOME AFFAIRS REFERENCE(S):          CLF2018/29748

MEMBER:David Crawshay

DATE:17 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 17 May 2024 at 9:31am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of the family unit – visa applicant over 23 years – visa processing delays – visa applicant in employment – request for Ministerial Intervention – able to apply for a Partner visa onshore – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 5, 48, 65, 351, 417
Migration Regulations 1994, Schedule 2, cls 820.211, 836.221, 836.321; rr 1.03, 1.05, 1.12, 2.12

CASES

Cole v MIBP [2018] FCAFC 66

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 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 March 2018. The delegate refused to grant the visa on 10 October 2023 on the basis that the applicant did not satisfy the requirements of cl.836.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 836.321 of Schedule 2 is a time-of-decision criterion. It requires the applicant to continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa. The primary applicant in this matter is Mr Mohamad Adel Daknach, the applicant’s father, who has already been granted a Subclass 836 visa after the same Tribunal remitted the matter for reconsideration with the direction that he met the definition of “carer” for the purposes of cl.836.221 (refer to matter number 1908521).

3. The applicant appeared before the Tribunal on 10 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Mr Assel Dawood.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the applicant continues to be a member of the family unit of the primary applicant and satisfies cl.836.321.

6. Section 5(1) of the Act provides that “member of the family unit” of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides “member of the family unit” has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.

7. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is, among other things, a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner. Additional requirements exist if an applicant has turned 18. If an applicant is aged between 18 and 22 years of age, that applicant must be dependent on the family head (or partner). If an applicant is 23 years of age or older, that applicant must be wholly or substantially reliant on the family head (or partner) because he or she is incapacitated for work due to loss of bodily or mental functions.

8. In this instance, the applicant is claiming to be the child of the primary applicant, and none of the other categories applies to her. As the applicant has turned 23 at the time of this decision, she must be found to be dependent under r.1.05A(1)(b): r.1.12(2)(b)(iii). In order to be found to be dependent under r.1.05A(1)(b), the applicant needs to be wholly or substantially reliant on the primary applicant or the review applicant for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

9. In her decision to refuse the applicant’s visa, the delegate considered the contents of the applicant’s Form 47A and specifically information that she had been employed in two different roles at separate businesses and that she had undertaken a Bachelor of Biomedical Science course at RMIT University from March 2017 to November 2020. The delegate found that no claims had been made or evidence submitted to indicate that the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions.

10. No other written information has been submitted that would address the issue of whether the applicant is a member of the family unit of the primary applicant. On 13 March 2024, the applicant provided a response to the Tribunal’s s.359(2) letter of 29 February 2024 requesting information about whether she satisfied the definition of “member of the family unit”. However, her response in that letter did not deal with the issue but only dealt with factors that would be relevant to consideration of Ministerial intervention (which are considered below). At hearing, the applicant agreed with the Tribunal that she did not meet the criterion.

11. The Tribunal has considered the information in front of it, including materials on the Department and Tribunal files and the applicant’s testimony at hearing. It has also had regard to the authorities on incapacity for work, including Cole v MIBP, in which the Court held that there is a two-stage process for assessing incapacity for work – being that the decision-maker should firstly plainly identify what the disabilities are and secondly determine whether there is paid work for that person to perform with such disabilities.[1]

    [1] [2018] FCAFC 66, [67].

12. Based on the available information, the Tribunal finds that the applicant is not living with a disability that would affect her capacity to work. In fact, the available information including information in the applicant’s Form 47A clearly indicates that she has been studying and working since her arrival. At hearing she told the Tribunal that she is an account manager for health and nutrition at a company that assists food, beverage and nutrition businesses. Her matter fails the first limb of the test in Cole.

13. Accordingly, the applicant is not dependent on the family head or on the spouse or de facto partner of the family head in the manner detailed in r.1.05A(1)(b) of the Regulations. As a result, she does not meet r.1.12(2)(b)(iii) of the definition of “member of the family unit”. She therefore does not continue to be a member of the family unit of the family unit of the primary applicant.

14. The applicant does not meet cl 836.321.

    MINISTERIAL INTERVENTION

15. In her letter of 13 March 2024, the applicant requested the Tribunal to refer her matter for Ministerial intervention. Specifically, the letter relevantly stated as follows:

    When our application was first submitted in March 2018, I had fully met the definition of "member of a family unit" as set out in r.1.12(2). Unfortunately, our application at the time was wrongfully refused and later, successfully appealed. As you will appreciate, a significant, unreasonable and unexpected period of time has since passed and I inevitably grew over the age of 23.

    I am now at risk of losing my visa and being separated from all of my immediate family due to circumstances that are completely out of my control. I remain compliant with the conditions placed on me by the Department and with the ongoing immigration process.

    I kindly request in consideration of my application, that the learned Member please have regard for the unusual circumstances of my application, and the devastating consequences that an adverse outcome will have on myself and all of my immediate and extended family. This includes well-founded risks to my safety as a woman returning to a probable warzone in which I have no support, home or connection given I have lived close to 10 years as a proud resident in Australian society.

    To that end, I believe that my circumstances satisfy Section 417 of the Migration Act 1958 (Cth) for Ministerial Intervention. In making their decision, I kindly request that the learned Member make reference in writing of my circumstances as being suitable for further consideration under Section 417 of the Migration Act 1958 (Cth).

16. Section 351 of the Act provides that, for reviews of Part 5-reviewable decisions, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if he thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers. It accepts that the applicant has made such a request even though she referred to s.417 of the Act, which is the corresponding section for reviews of Part 7-reviewable decisions.

17. However, before the Tribunal can assess whether there are unique or exceptional circumstances, it must determine if there are circumstances that make the matter inappropriate to consider, by reference to the Guidelines for Ministerial Intervention.[2] One such circumstance is where “the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) [sic] of the Migration Regulations 1994”.[3] The applicant has made clear representations about being in a spousal relationship with Mr Assel Dawood, describing him as her “spouse” on the hearing response form and elaborating on this information at hearing.

    [2] Department of Home Affairs, ‘Status Resolution Service: Ministerial Intervention’, The correct reference should be “regulation 2.12” and not “regulation 2.12(1)”.

Although the Tribunal makes no findings about whether the applicant is in a spousal relationship with Mr Dawood, it finds that she would nonetheless be able to apply for a partner visa onshore. In coming to this finding, the Tribunal finds that the applicant is not barred from applying for an onshore partner visa by s.48 of the Act, as Subclass 820/801 visas are prescribed by r.2.12(a) and (b) as being visas that may be applied for. Furthermore, there is no information to show that she would be unable to satisfy items 1124B or 1214C of Schedule 1 of the Regulations. Lastly, it was confirmed at hearing that Mr Dawood is an Australian citizen and is therefore able to sponsor the applicant for a partner visa.

When it was suggested to the applicant that she may be able to apply for an onshore partner visa, she told the Tribunal that in that case, she would need to satisfy the requirements of cl.820.211(2)(d)(ii). That subclause states that an applicant must satisfy certain Schedule 3 criterion unless the Minister (or the Tribunal in his place) is satisfied that there are compelling reasons for not applying those criteria. The Tribunal made the point that if the applicant did not have compelling reasons for not applying the Schedule 3 criteria, then she might not have the necessary circumstances to be able to claim Ministerial intervention. In response, the applicant said that the thresholds [in cl.820.211(2)(d)(ii) and the guidelines on Ministerial intervention] are different.

This is true. Whereas in cl.820.211(2)(d)(ii), the applicant is required to show “compelling reasons” for not applying the Schedule 3 criteria, the guidelines lay down a number of different “thresholds”, variously being “strongly compassionate”, “compassionate”, “exceptional benefit” and “circumstances not anticipated by relevant legislation” among others. Needless to say, they are not completely analogous to each other.

However, while the applicant must overcome cl.820.211(2)(d)(ii) and the requirement for there to be compelling reasons for not applying the Schedule 3 criteria where those criteria are not met if she is to be granted an onshore partner visa, she is ultimately not barred from applying for such a visa in the first place. Clause 820.211(2)(d)(ii) is a criterion that she must satisfy after she has applied for the visa. It is not a requirement that precludes her from applying in the first place – like as is found in s.48 of the Act or in Schedule 1 of the Regulations.

The Tribunal certainly recognises the difficult circumstances involved in the present matter. As is the case with many matters dealing with the definition of “member of the family unit”, the effluxion of time often means that secondary applicants who might have been able to satisfy the criteria at the time of application no longer do so because they have entered the workforce, changed their relationship status or, in this case, become subject to the high bar set by r.1.12(2)(b)(iii) of the Regulations. The situation is even more difficult here as the applicant appears to have formed a close attachment with Australia, having completed her last two years of schooling here before gaining a biomedical degree from an Australian university and eventually working in a senior role at an Australian company. She has an extremely impressive resumé and would likely make a positive contribution to Australia. As above, she has given evidence that she married an Australian citizen who attended the hearing.

The applicant told the Tribunal at hearing that she is well-integrated and considers herself Australian. She remarked that if the right decision was made in the primary applicant’s visa, then she would not have been in the situation that she finds herself. While this statement is speculative, it is certainly the case that the requirements for applicants aged between 18 and 22 are much easier to satisfy than those for applicant aged 23 or over. The Tribunal notes at this point that the applicant was 20 years of age at the time of application and 21 at the time when the primary applicant’s visa was refused.

Mr Dawood submitted that there were unique and unintended consequences that will have an impact on him and the family that could not be described. He said that the whole process has thrown their lives in the air. He said that they had not been confident in settling in. He said that the applicant does not even know if she can work next week. He said that he was suffering from severe stress and anxiety.

Although the Tribunal recognises the current circumstances of the applicant and her spouse and the potential hardship that may ensue from the applicant having to apply for a partner visa and overcome the specific requirements of cl.820.211(2)(d)(ii), it considers that the guidelines are clear about which matters are “inappropriate to consider”. In this case, they include matters where “the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) [sic] of the Regulations 1994”. The Tribunal finds that the applicant is one of these people.

Based on the above findings, the Tribunal finds the applicant’s matter is inappropriate to consider. Accordingly, it does not intend to refer her matter to the Minister for his intervention, although it reminds her that it is open to her to make her own request.

DECISION

The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

David Crawshay
Member

1.12     Member of the family unit

(1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

General rule

(2)A person is a member of the family unit of another person (the family head) if the person is:

(a)     a spouse or de facto partner of the family head; or

(b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

(i)has not turned 18; or

(ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

(c)      is a dependent child of a person who meets the conditions in (b).

This subregulation has effect subject to the later subregulations of this regulation.

…

1.05A  Dependent

(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.

(2) …