Kamberi (Migration)

[2018] AATA 278

Kamberi (Migration) [2018] AATA 278 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Louise Lulzime Kamberi

VISA APPLICANT:  Miss Elvira Rushidovska

CASE NUMBER:  1601128

DIBP REFERENCE(S):  OSF2015/037861

MEMBER:Mary Urquhart

DATE:9 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Subclass 445 Dependent Child visa for reconsideration, with the direction that the visa applicant meets the following criteria

·cl.445.211 of Schedule 2 to the Regulations.

Statement made on 09 February 2018 at 11:56am

CATCHWORDS
Migration – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – No paid employment – Main source of financial support – Fund transfers

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 1 Item 1211, Schedule 2, cls 445.211, 445.221

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 Immigration on 30 November 2015 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 January 2015. The delegate refused to grant the visa on the basis that at the relevant time, the secondary applicant, Elvira Rushidovska, (the visa applicant in this review,) was not a dependent child of her father who is the primary applicant (and the visa holding parent in this review). The visa applicant sought a review of the delegate's decision.

3. The delegate refused the visa applicant as it appeared that the applicant did not satisfy cl.445.211 and 445.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the visa applicant did not satisfy cl.445.211 because it found she was not a dependent child of the visa-holding parent. The delegate also found that the she was not wholly or substantially reliant on her father for her basic financial needs for a substantial period in the lead up to lodgment of the application for the visa.

4. The review applicant appeared before the Tribunal on 24 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Femi Rushidovski, Bujar Muedinoski.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative did not attend.

7. On 18 September 2017 the Tribunal wrote to the review applicant inviting her to provide information in writing of any independent evidence that she will seek to rely upon at the review hearing to demonstrate that the visa applicant has been wholly or substantially reliant on her father (the visa holding parent) or her sponsor for financial support to meet her basic needs for food, clothing and shelter.

8. On 3 October 2017the Tribunal received a response which included

   ·Money transfer receipts;

   ·A letter stating that a company represented by Fatmi Rushidovski pays rent for the use of agricultural land to the person Elvira Rushidovski in the sum of 500 Euros. It is dated 25 September 2017;

   • A letter dated 1 October 2017 by the visa applicant’s father. It states inter alia that he has been supporting his daughter financially and refers to receipts provided; He states other money has been provided to her through family and friends travelling to Macedonia as set out in Statutory Declarations attached. It states Elvira is living with her uncle in Macedonia and “although her basic needs are being taken care of she has very little, if any, opportunity for gainful employment or to meet other people of her own age. Her siblings are missing her enormously….”
   • A Statutory Declaration sworn by Mr Femi Rushidovski.
   • Statutory Declarations regarding money taken to the visa applicant from Bujar Mujedinovski, Vefki Medinovski;

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for further consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

10. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations. Where the child has turned 18 years of age, the child must be dependent on the person as defined by the regulations.

11. Clause 445.211 relevantly provides that at the time the application is made, the applicant must be a dependent child of a visa-holding parent. At the time of decision, cl. 445.222 requires the visa applicant to continue to be the dependent child of the visa holding parent. 'Dependent child' is defined in r.1.03 of the Regulations.

12. The issue in the present case is whether the visa applicant meets the definition of a dependent child within the meaning in the regulations. The definition requires she be wholly or substantially reliant on the primary applicant for a substantial period of time for financial support to meet her basic needs for food, clothing and shelter. In addition, the secondary applicant’s reliance on the primary applicant for this financial support must be greater than her reliance on any other person or source of support.

    Is the applicant a dependent child of the visa holding parent?

13. The visa applicant provided with the application evidence of being the child of the visa holding parent. The Tribunal is satisfied that the visa applicant is the daughter of the visa holding parent (and primary applicant). The Tribunal also accepts the visa applicant is a step child of the review applicant who is her father’s wife.

14. The visa applicant born 12 March 1996 is a 21 year old single female who lives with her paternal grandmother and uncle. At the time of application her two younger siblings resided with her. They have since been granted visas for Australia. Her father, the visa holding parent migrated to Australia some 5 years ago sponsored by his wife the review applicant.

15. The evidence is that the attended school until the equivalent of grade 7 or 8 when she was aged about 13 or 14. . She has, since that time, been raised by her paternal grandmother as her mother deserted the family at that time.

16. The visa applicant resides with her grandmother in the home of an uncle, his wife and children. Her grandmother’s income is a Macedonian Pension which is insufficient to provide for the visa applicant as well.

17. Evidence was given of the uncle’s income from cows and some farming

18. The evidence is that the visa applicant helps to look after her uncles children, helps with chores and cooking and that prior to the departure for Australia of her younger siblings she took the role “of mother” caring for them and her grandmother. She has never had any paid employment.

19. The Tribunal notes and gives weight to the visa applicant’s evidence at interview on 1 October 2015 (recorded in the primary decision) that the applicant’s father and uncle share ownership of the residence in which she lives. The Tribunal notes the visa applicant’s evidence that she has resided there since 2008 and the reference to her mother’s financial instability and her parent’s divorce.

20. The Tribunal notes the visa applicant’s evidence that her main source of financial support is from her father in Australia. The Delegate notes that no “actual evidence” of this was provided.

21. The Tribunal now has before it documentary evidence regarding the shared ownership of land, evidence of rental income coming in regarding this and oral evidence that the money is used for the visa applicant’s needs. There is now other documentary evidence including money transfer receipts and Statutory Declarations regarding money delivered overseas to the visa applicant.

22. After careful consideration of all the evidence now before the Tribunal, it accepts the visa holding parent has been sending funds to the visa applicant for a substantial period of time. The Tribunal accepts that the visa applicant uses such funds for her basic needs. The Tribunal accepts that the visa applicant cannot meet the cost of these needs without the support she receives from her father, the visa holding parent.

23. The Tribunal is satisfied that the visa applicant's reliance on her visa holding father is greater than her reliance from any other source including or farm chores.

24. Whilst the Tribunal acknowledges that this application provided limited evidence at the time of application.However having the advantage of further documentary and oral evidence the Tribunal is satisfied that the visa applicant is, and has been for a substantial period immediately before the time of decision, substantially reliant upon the primary visa applicant for financial support to meet her basic costs of food, clothing and shelter; and that her reliance on the primary visa applicant is greater than any other reliance: as per Reg. 445.211 the visa applicant also the criteria for a Subclass 445 Dependent Child visa.

25. Given the above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

26. The Tribunal remits the application for a Subclass 445 Dependent Child visa visa for reconsideration, with the direction that the visa applicant meets the following criteria

    ·cl.445.211 of Schedule 2 to the Regulations.

    Mary Urquhart
    Member