Juglall (Migration)

[2021] AATA 4423

Juglall (Migration) [2021] AATA 4423 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Louis Marc Raymond Juglall

CASE NUMBER:  1825851

HOME AFFAIRS REFERENCE(S):          CLF2017/118641

MEMBER:Brendan Darcy

DATE:1 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.212 of Schedule 2 to the Regulations; and

·cl.802.221(2)(a) of Schedule 2 to the Regulations.

Statement made on 1 November 2021 at 3.02am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent on the sponsor for a substantial period – applicant’s aunt paid for the applicant’s tertiary education – basic needs for clothing, food and shelter, cumulatively considered – greater reliance on the sponsor than other sources of financial support – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.221; rr 1.03, 1.05

CASES

Huynh v MIMA [2006] FCAFC 122

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 22 August 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 December 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative).  In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212.

4. The delegate refused to grant the visa on the basis that cl.802.212 on the basis that the applicant did not met the related criteria in regulations 1.03 and 1.05(A) regarding ‘dependent’ child.

5. The review applicant (or the applicant) appeared before the Tribunal on 20 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsoring relative (the applicant’s mother or the sponsor).  However, this hearing this adjourned shortly after it began due to a lack of suitable interpreting.

6. On 1 November 2021, a resumed hearing was held at which the applicant and the sponsor appeared to give evidence and the present arguments via an internet-enabled audio-visual platform  The resumed hearing was assisted by an interpreter in the English and Mauritian Creole (or Morisien) languages.

7. The applicant was represented in relation to the review by his registered migration agent. Both hearings were heard by utilising an internet enabled audio-visual platform (MS Teams).

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfied the definitions of dependent pursuant to regulation 1.05(A), both at the time of application and at the time of decision as required by 802.212 and 802.221 respectively.

10. Clause 802.212 relevantly sets out:

    (1) The applicant: (a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and (b) subject to subclause (2), has not turned 25.

    (1A) If the applicant is a step-child of the person mentioned in paragraph (1)(a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.

    (2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

    Background

11. The applicant was born on 27 December 1993 in Flacq in Mauritius. He is also a citizen of the Republic of Mauritius/ République de Maurice (Mauritius). On 22 June 2014, the applicant arrived in applicant while holding a Class TU Subclass 573 visa to undertake a Bachelor of Business (Accounting). (I was at RMIT and then Stott’s college)

12. The applicant applied for this Subclass 802 Child visa under review on 8 December 2017. At the time of application, the applicant was 23 years of age.

13. The sponsoring relative of this visa is Marie Josephine Mahedia Augustin born on 31 January 1976 in Mauritius. The sponsor arrived in Australia while holding a visitor visa in May 2012. The sponsor she explained she came to visit her sister who was undergoing surgery.  She then applied for a Class BU Subclass 836 (Carer) visa in July 2013, which was granted to her on 20 September 2017. The sponsor subsequently was conferred Australian citizenship on 29 July 2020.

14. It is noted that at the time of application, the sponsor was holding a permanent Class BU Subclass 836 (Carer) visa that when the applicant applied for a Child visa in December 2017.

15. On 22 August 2018, a delegate acting on behalf of the Minister refused to grant the applicant a Child visa.

16. According to the decision record, the delegate was not satisfied that the applicant met the definition of dependent per regulation 1.05(A).  The decision cited that the applicant’s declaration at Q42 in the Application Form 47CH, outlining that his maternal aunt was his main source of financial support, and provided accommodation and food for the applicant. The delegate determined that the applicant was not dependent on the sponsor for a ‘substantial period’, rather he was dependent to a greater degree on his maternal Aunt

17. The applicant validly applied to the Tribunal to have the delegate’s refusal decision review on 5 September 2018.

18. On 14 September 2021, the Tribunal received a twelve-page legal submission from the applicant’s representative. Attached to the submission were a number of documents:

    ·     A statutory declaration signed by the applicant; 

    ·     A statutory declaration signed by the sponsor;

    ·     Evidence of a money transfer from the sponsor to the applicants’ bank account (Commonwealth Bank, statement period 1 July – 31 December 2018); and

    ·     Payment authorized by Marie Augustin to the representative’s firm in relation to the applicant’s immigration fees.

19. The submitted legal submission summarised its position by highlighting the following points:

    ·     The applicants provided only one aspect of financial support under the 3 limbed basic needs namely, shelter (accommodation);

    ·     The applicant’s aunt’s financial support for the payment of the applicant’s tertiary education is irrelevant for the purposes of assessing dependency as it is not defined as a ‘basic need’;

    ·     The sponsor was provided her own allowance, with her own autonomy with how she spent it. The allowance essentially went towards financially supporting the applicant on his arrival to Australia;

    ·     The sponsor provided the applicant with financial support for 2 of the 3 limbed ‘basic needs’ ie. clothing and food;

    ·     Any benefits received, by the applicant from his aunt back in Mauritus, is by way of the carer arrangement between the Sponsor and her sister;

    ·     The sponsor did not financially support her nephews whilst under the same roof, this is distinguished from the support relationship between her and her son.

    ·     The weight that should be attributed to the ‘basic needs’ is not specified within the wording  of reg 1.05A. As it is not directly specified, it is likely that the balancing exercise required to established dependency can and should take into consideration the over-all circumstances of both applicant and the sponsor.

20. At the end of the resumed hearing, no further submissions were required.

    Dependent child criteria

21. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

    Dependent child

22. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

23. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

24. As mentioned above, the applicant was already aged 18 at the time of application.

25. There is no dispute in this matter that the applicant is the biological child or ‘child’ of the sponsoring parent.

26. Therefore, the applicant is a ‘dependent child’ of an eligible person at the time of application if the applicant is incapacitated or ‘dependent’ (wholly or substantially reliant for basic needs),

    ·and if not a ‘dependent child’ at time of decision, whether this is only because the applicant has turned 18.

27. The term ‘dependant’ in regulation 1.03, has the meaning given by regulation 1.05A. Regulation 1.05A sets out:

    (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;

28. The delegate in his decision relied on, the applicant’s declaration at Q42 in the form 47CH, outlining that his maternal aunt is his main source of financial support, and also provides accommodation and food for the applicant. The delegate determined that the applicant was not dependent on his mother (the sponsor) for a ‘substantial period’, rather he was dependent to a greater degree on the applicant’s maternal aunt, Marie Chantal Audrey Jelita Rosse (Ms Rosse).

29. The parties do not resile in the relevant period before the application was lodged – about three years - that the sponsor and the applicant shared the same residency at Dee Wy Road, Narre Warren South (in metropolitan Melbourne). The residency is belonging to the sponsoring relative of Carer visa that the applicant’s mother (the sponsor) holds – Ms Rosse. Ms Rosse is the sister of the sponsor. She has a number of physical ailments arising from chronic pain and the swelling of joints. One of Ms Rosse’s sons is considered disabled as he belongs to the autistic spectrum disorder.  The sponsor claimed she had not been receiving Carer Payment since the grant of the Carer visa.

30. At the time of application, the sponsor of this visa was Ms Rosse’s full-time carer. As discussed in the hearing, she had directly received a generous stipend – but not a wage or salary, from her sister to be her carer during his relevant period. This amount was as much as 110,000 Australian dollars on an annual basis. The sponsor and the applicant had also consistently claimed long been estranged from the applicant’s biological father. The sponsor has not remarried or has a spouse or de facto partner. The sponsor also claimed that the applicant materially benefited from sharing the same accommodation as herself and her sister and received a generous allowance which is sufficient to financially support her and her dependent adult son during the relevant period of about three years to the date of application, and that her  and the applicant did not rely any other sources of income.

31. The Tribunal notes the applicant claimed tuition fees were partially paid by his father. It is further noted the parties’ representative that the provision of tuition fees is not included as one of the limbs in taking account of financial support to meet basic costs under regulation 1.05A(1)(a).

32. Overall, the Tribunal accepts the parties’ claims circumstances to be credible and reliably put.

33. The Tribunal notes that that the parties failed to convey their circumstances properly or concisely in the application form when this Child visa was lodged. It was not their intention to indicate that the sponsor any monies as a Carer but only to indicate she did not earn a remunerative wage or salary in the ordinary sense of the words. The Tribunal accepts the sponsor was supported by the applicant’s maternal aunt by providing a stipend and that, in turn, the sponsor received his basic needs from the sponsor.

34. While the applicant was not provided directly with shelter by the sponsor, the Tribunal is satisfied that the applicant’s sponsor was intimately associated with the sponsor’s role as a live-in full-time carer of her sister. In this regard the Tribunal is satisfied that the applicant was substantially reliant on his mother - and not Ms Rosse, for basic needs for clothing, food and shelter, cumulatively considered, noting that the parties shared the same residency as the applicant’s maternal aunt. It is also satisfied that the applicant was more reliant on the sponsor than other source of financial support for his basic need for clothing, food and shelter during the three years prior to applying for this visa. The Tribunal accepts that meeting the cost of tuition fees is not relevant to the definition of ‘dependent’ under regulation 1.05A(1)(a).

35. Accordingly, the Tribunal finds that the applicant meets the relevant criteria outlined in regulation 1.015A(1)(a) at the time of application.

36. The applicant accordingly meets the definition of ‘dependent’ for the purposes of re.1.03(b)(1) at the time of application. It is not required to considered regulation 1.03(b)(ii).

37. As discussed in the hearing, the parties had described that their circumstances had evolved since the application for this Child visa had been lodged. Firstly, they explained that in the last three years or so, the applicant’s maternal aunt has partnered and that her partner provides his maternal aunt with the full-time care that the sponsor had otherwise been providing. The parties secondly explained that the sponsor has since formed a romantic relationship and the parties moved to Morwell in reginal Victoria where the applicant was reliant of the sponsor’s earned income for food and clothing and that he resided in the same residence which was mortgaged to the sponsor’s partner. In this regard, the sponsor claimed she was no longer receiving a stipend from her sister and that she has been earning her own income of around 3600 Australian dollars per month. Thirdly, the parties also disclosed that the applicant earned a casual part-time income working for an accountancy firm. 

38. The parties insisted that since the application had been lodged in December 2017, the applicant remained substantially reliant on the sponsor for his basic needs and that that the applicant’s reliance on the sponsor was greater than any of the source of income.

39. Overall, the Tribunal accepts the changes in claimed circumstances to have credibly occurred. The Tribunal finds that the changes have not altered so much that the applicant is not living with the sponsor on a long-term basis or that he is not no longer substantially reliant on the sponsor for his basic needs for clothing, food and even shelter.  At the time of making this decision, the applicant’s shelter remains materially depend on the sponsor due to the nature of the sponsor’s spousal like relationship with her partner and when cumulatively considering the reliance of the applicant on the sponsor for basic needs, the Tribunal is unable to separate shelter from the other elements of basic needs in this matter.

40. The Tribunal also finds that the part-time income of the applicant is not sufficient to dilute the applicant’s reliance from being less than substantial. Neither does it accept that his financial reliance on the applicant’s part time income as a source of financial support amounted to his reliance being greater than on any other person or source of income other than the sponsor for his basic needs for food, clothing and shelter at the time of decision. 

41. For the reasons stated above, the applicant continues to meet the definition of ‘dependent’ under regulation 12.05A(1)(a)(i) and (ii) at the time of decision.

42. The applicant accordingly meets the definition of ‘dependent’ for the purposes of re.1.03(b)(1) at the time of decision. It is not required to considered regulation 1.03(b)(ii).

43. Accordingly, cl.802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

44. At the time of application, the applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.802.212(1)(b), (2).

45. At the time of application, the applicant had not reached 25 years of age. Accordingly, cl.802.212(1)(b) does not apply at the time of application and is not required to be met at the time of decision.

    Child-parent relationship

46. If the applicant is a step-child of the Australian citizen, permanent visa holder or eligible New Zealand citizen mentioned in cl.802.212(1), the applicant must be a step-child within the meaning of paragraph (b) of the ‘step-child’ definition in r.1.03, which is extracted in the attachment to this decision: cl.802.212(1A).

47. As discussed in the hearing, there is no dispute that the applicant is the biological child of the sponsoring parent who was a permanent visa holder at the time of application and is currently an Australian. The applicant is not the step-child of the sponsoring parent.

48. Accordingly, cl.802.212(1A) does not apply at the time of application and is not required to be met at the time of decision.

49. For the reasons above, the criteria in cl.802.212 and cl.802.221(2)(a) are met.

    Summary

50. As the applicant meets regulation 1.05A(1)(a), he meets the definition of dependent child under regulation 1.03(b)(i) and pursuant to 802.212(1)(a) at the time of application.

51. As the applicant satisfied cl.802.212(1)(a), it has considered the corresponding time of decision requirements under cl.802.221(2)(a). For the reasons set out above, the Tribunal is satisfied the applicant meets 802.221(2)(a).

52. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa. Whether the applicant satisfies cl.802.214 at the time of application and whether cl.802.221(1)(b) is a matter for the Department.

    DECISION

53. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.212 of Schedule 2 to the Regulations; and

    ·cl.802.221(2)(a) of Schedule 2 to the Regulations.

    Brendan Darcy
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    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.

    …