Jeanineh Hilsaca (Migration)

[2021] AATA 3329

Jeanineh Hilsaca (Migration) [2021] AATA 3329 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriel Andre Jeanineh Hilsaca

CASE NUMBER:  2018399

HOME AFFAIRS REFERENCE(S):          CLF2014/17675

MEMBER:Margie Bourke

DATE:12 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.321 of Schedule 2 to the Regulations.

Statement made on 12 August 2021 at 3:01pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of family unit – secondary applicant dependent child of primary applicant – young adult over 18 – financial dependency – anxiety, depression and engagement in activities – no-work condition – volunteer work at uncle’s shop – statements from applicant and uncle – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03(b), 1.05A, 1.12(1)(b), Schedule 2, cl 836.321

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 23 December 2020 to refuse to grant the review applicant an 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 4 February 2014. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.321.

3. The delegate refused to grant the visa on the basis that cl 836.321 was not met because the delegate was satisfied the applicant was the dependent child of the primary visa applicant in this matter, and therefore did not meet the definition of a member of the family unit of the person who satisfy the primary criteria.

4. The Tribunal has considered the Departments decision record dated 23 December 2020 and the information provided to the Department and subsequent information provided to the Tribunal. The Tribunal is satisfied that based on the information available to it, the Tribunal can make a decision favourable to the applicant without proceeding to hearing, pursuant to s.360(2)(a) of the Act

5. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Secondary Visa Applicant criteria

6. Clause 836.321 is a time of decision criteria applicable to a secondary visa applicant.  Cl.836.321 requires that the applicant continues to be a member of the family unit of the person who, having satisfy the primary criteria, is the holder of a Subclass 836 visa.

7. The primary visa applicant in this matter, Loor Hilsaca Sarras, is the mother of the visa applicant, and was granted a Subclass 836 carer visa on 30 March 2021. I am satisfied based on the notification of the grant that the primary visa applicant is the holder of a Subclass 836 carer visa, and therefore I am satisfied that the primary visa applicant satisfied the primary criteria for a Subclass 836 carer visa.

8. Based on the certified translation of the certified birth certificate from the Republic of Honduras, I am satisfied that the applicant is the biological son of the primary visa applicant in this matter. I am satisfied that the applicant was born on 2 December 1991.

9. The application for the Subclass 836 carer visa was made on 4 February 2014. I am satisfied that the applicant was aged 22 years at the time of application.

10. The applicant must meet the definition of member of the family unit, r.1.12, as applied at the time of application on 4 February 2014. Specifically the applicant claims that he is a dependent child of the family head (his mother the primary visa applicant) within the meaning of r.1.12(1)(b) at the time of application, and continues to be the dependent child of the family head at the time of decision to satisfy the requirements of cl.836.321.

11. Dependent child is defined in the regulations, as a child or stepchild of a person other than a child who is engaged to be married or has a spouse or de facto partner. I have considered the statutory declaration of the applicant dated 12 August 2021, and I am satisfied based on the evidence before me that the applicant has not been engaged, married or partnered, and is not engaged to be married, and does not have a spouse or de facto partner.

12. As the applicant is over the age of 18 I must be satisfied the applicant meets the definition of dependent child in r.1.03(b), namely that he has turned 18, and is dependent on his parent or is incapacitated for work due to total or partial loss of his bodily or mental functions. I am satisfied based on the evidence before me that the applicant claims to be financially dependent on his mother the primary visa applicant.

13. I have considered the medical report dated 6 October 2017 which refers to the treatment of the applicant for anxiety and depression from 2015 to 2017. The report does not indicate that the applicant was incapacitated for work. The report indicates that engaging in activities assisted him to overcome his condition. There is no evidence before me that the applicant is incapacitated for work due to total or partial loss of his bodily or mental functions.

14. I am satisfied based on the written information provided to the Tribunal, which includes two statements from the applicant received 20 February 2021 and 22 February 2021 and a statutory declaration from the applicant’s uncle Bassam Hilsaca dated 6 August 2021 that the applicant is financially dependent upon his mother the primary visa applicant. I am satisfied that since his arrival in Australia the applicant has resided with his mother at 6 Murray Street or after she bought the house next door, he lived in the house next door to his mother.

15. I have considered the conditions attached to the visas that the applicant has held since his arrival in Australia. The applicant arrived in Australia on 11 September 2013 is the holder of a visitor visa. After the applicant applied for the subclass 836 carer visa on 4 February 2014, he was granted a bridging visa A on 5 February 2014 which had a no work 8101 condition attached. On 20 June 2014 the applicant was granted a bridging visa B which also had a no work 8101 condition attached. The bridging visa B ceased on 20 February 2017, and the applicant was granted a bridging visa E which is still holds and which is also subject to a no work 8101 condition. I am satisfied that the Department has placed the applicant in a situation where he has not been entitled to earn an income since 5 February 2014.

16. I have considered the statutory declarations provided by the applicant’s uncle, and I am satisfied that his uncle allowed the applicant to attend his fruit and vegetable shop in Deer Park from late August 2016 to February 2017 as a volunteer. I accept that the applicant’s uncle allowed his nephew to attend as a volunteer and was not paid during this period. I am satisfied that the applicant’s uncle invited him to attend as a volunteer to assist him to overcome his mental health difficulties at that time, and there was no contract or regular hours or training as part of the arrangement. I accept that the volunteer situation was to assist the applicant to get out of the house and have some activity to stimulate his mind.

17. I have considered all the financial documents provided by the applicant including bank statements and receipts and I have considered the statements explaining these documents. I am satisfied that all the financial needs of the applicant have been met by his mother.

18. I am satisfied that the applicant resides in a house owned by his mother. I am satisfied that the applicant’s accommodation needs have been met by his mother for the last seven years. I am satisfied that the applicant’s basic needs of clothing and food have been provided by his mother over the last seven years (although I accept his uncle provided some food when he attended as a volunteer at his fruit and vegetable shop from late August 2016 February 2017). I accept that all other financial costs to meet the expenses of the aspects of the applicant’s daily life, including travel, his license, household expenses and other bills have been paid for by his mother.

19. In this matter I can consider on the evidence before me a period of two years when considering the term “substantial period” in the definition set out in regulations to describe dependent person.

20. I am satisfied that the applicant is, and has been for a substantial period, namely two years, immediately before this current time, wholly or substantially reliant upon his mother the primary visa applicant for financial support to meet his basic needs for food clothing and shelter. This I am satisfied that the applicant’s reliance on his mother, the primary visa applicant, 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.

21. I am therefore satisfied that the applicant is dependent upon his mother, the primary visa applicant within the meaning of r.1.05A.

22. I am satisfied for the above reasons that the applicant is the dependent child of his mother, and therefore a member of the family unit of his mother, the primary visa applicant, within the meaning of 1.12(1)(b). Accordingly the applicant is a member of the family unit of a person who having satisfied the primary criteria is the holder of a subclass 836 carer visa.

23. For these reasons the applicant meets the requirements at the time of decision of cl.836.321.

24. 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 836 visa.

    DECISION

25. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.321 of Schedule 2 to the Regulations.

    Margie Bourke
    Member