Lakey (Migration)

[2019] AATA 6476

Lakey (Migration) [2019] AATA 6476 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rayne Abraham Lakey

CASE NUMBER:  1725222

HOME AFFAIRS REFERENCE(S):          BCC2016/1018339

MEMBER:Hugh Sanderson

DATE:11 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 11 November 2019 at 2:38pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – member of family unit – employed full-time – reliance on mother substantially less than reliance on own income – capable of meeting basic needs for food, clothing and shelter – not dependent on mother – long stay in Australia – no relationship with father in South Africa – potential for discrimination in home country – high level of crime in home country – ministerial intervention supported – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, Schedule 2, cls 820.311, 820.321

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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 March 2016 on the basis of his being a member of the family unit of his mother who was in a spousal relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.311 because the delegate was not satisfied the applicant was a dependent of his mother and therefore not a member of her family unit.

   Background

4. The applicant was born in South Africa and is currently 24 years old. He has a brother, Ayden, who is currently 26 years old. Their parents divorced in 1997. When their parents separated they were initially placed in foster care before being cared for by their maternal grandmother and then living with their mother, Mauddel Lakey. They have little or no contact with their father who continues to live in South Africa. The applicant moved to Australia with his mother and brother in October 2007 on a Prospective Marriage visa on the basis of his mother’s engagement to marry Warwick Sheils. They were then granted Subclass 820 Partner (Temporary) visas. The applicant’s mother’s relationship with Mr Sheils ended in 2010 and they were divorced in November 2011. As the applicant’s mother’s relationship with her sponsor had ended, she and her sons were declined the grant of the Subclass 801 Partner (Residence) visa. The applicant was then granted a Subclass 457 Temporary Work visa as a member of the family unit of his mother.

5. The applicant’s mother commenced a relationship with her current husband, Stephen Adams, in July 2011. They started living together with the applicant and his brother in May 2012. They were married on 31 July 2015. The current application was filed on 10 March 2016 sponsored by Mr Adams. The applicant and his brother were included in the application as members of the family unit of their mother. The applicant’s mother was granted the Subclass 820 Partner visa on 27 September 2017. Both the applicant and his brother were refused the grant of the visa as members of the family unit of their mother. Ayden has applied for a review of that decision on his own behalf which is subject to a separate decision (Case number 1725223).

6. When considering the application of the applicant, the delegate noted the following:

   ·The applicant provided payslips from his employment at Charnwood Newsagency from 7 January 2016 to 14 July 2016 and at Foxy’s Garden Centre from 9 June 2016 to 16 February 2017;

   ·While working at Charnwood Newsagency, the applicant was earning between $251 and $490 per week;

   ·For the period from 1 July 2016 to 16 February 2017 the applicant had a net income of $19,859;

   ·The bank statements of the applicant indicated that he was not receiving any financial support from his mother;

   ·The bank account statements for the period 1 July 2016 to 30 December 2016 showed varying amounts being deposited into that account from the applicant’s girlfriend, Ms Borg;

   ·It was claimed the applicant’s relationship with Ms Borg ended in June 2017, however, there was no evidence that the applicant had ceased his full-time employment or is receiving financial support from his mother;

   ·The income of the applicant would be sufficient to meet his basic needs of food, clothing and shelter; and

   ·There was little information which would indicate that for a substantial period immediately before the application or at the time of the decision the applicant had been wholly or substantially reliant upon his mother for financial support to meet his basic needs for food, clothing and shelter.

7. Taking these matters into account, the delegate was not satisfied the applicant was a dependent of his mother as defined in r.1.05A(1)(a) and therefore did not meet the definition of a member of the family unit as defined in r.1.12(e)(iii) of the Regulations. As the applicant was not a member of the family unit of the primary visa applicant, he did not meet the criteria in cl.820.311 and his application was refused.

   Information to the Tribunal

8. The applicant provided a report from Sam van Meurs, psychologist, dated 25 October 2019. In that report Mr van Meurs said that he believed it was possible that the applicant does experience some either prodromal or clinically significant symptoms of Bipolar II disorder, however, was unable to diagnose that condition partially due to his ability to remain in steady employment.

9. When reviewing his occupational history, Mr van Meurs reported the following:

   During college, (the applicant) worked at the Reject Shop and Dominoes. He said “I’ve done lots of jobs, I’m always working. I worked at a newsagency, bricklaying, at a company looking at soils and rocks, but for the last while I’ve been fencing”. He advised that he works full-time, and is currently renting accommodation with a friend’s sister.

10. The applicant’s mother provided a list of payments she has made to the applicant for the period from 27 August 2018 to 27 October 2019 totalling $5,890. It was claimed that a further $650 had been given to him in cash when the applicant’s stepfather was in Canberra for work. This was an average of about $109 per week.

11. Submissions were made by the applicant, his mother and stepfather where the following was claimed:

    ·The applicant’s father was a violent person and the applicant’s mother was subjected to repeated family violence during her relationship with him;

    ·The abuse that was suffered by the applicant and his mother led to adverse emotional development by the applicant;

    ·Living in Australia has allowed the applicant to develop emotionally and in character;

    ·The applicant regularly relies upon the financial and emotional support of his mother and stepfather;

    ·The applicant would have been granted permanent residence in Australia if it were not for the fact that his mother’s former partner ended his relationship with her prior to her being granted the Subclass 801 Partner (Residence) visa;

    ·If the applicant is required to return to South Africa he will face discrimination and likely unemployment, particularly as he would be considered a ‘coloured person’;

    ·There are significant dangers in South Africa including gang-related violence, high rates of crime, and adverse effects arising from the applicant being separated from his family; and

    ·The applicant would not be able to successfully reintegrate into Cape Town after residing in Australia for so long.

12. The applicant’s mother wrote saying that she recognised the law is not in the applicant’s favour; however, she argued that the compassionate circumstances of the case justified Ministerial intervention.

13. The applicant appeared before the Tribunal on 4 November 2019 to give evidence and present arguments. The hearing was a combined hearing with his brother’s application who also appeared before the Tribunal. The Tribunal also received oral evidence from the applicant’s mother and stepfather.

14. The applicant provided details of his current circumstances. He is living in Canberra with a flatmate. He is working doing fencing which he commenced three months ago. He earns about $650-$730 per week. He was previously employed testing soil and cement and had worked in that position for about one-and-a-half years. He was earning a similar income. He currently pays rent of $515 per fortnight ($257.50 per week) and meets the majority of his other expenses from his income. He says that if he needs help he asks his mother or stepfather and they usually provide this financial assistance to him.

15. The applicant said at the time of the application he was living with his girlfriend with whom he started living with after he finished college in December 2013. He said that when he had been at college he had worked in various jobs including bricklaying and at a newsagency. At the time of the application he had been working at Charnwood Newsagency. He then started work at Foxy’s Garden Care earning an income of over $30,000 per annum.

16. The applicant said that he had considered returning to South Africa but he did not see any future for him there. He had spoken to an uncle about getting a job in South Africa, but was told that unless he was given a “Black Working Rights Card” it was unlikely he would be able to get employment. He said he had no contact with his father did not know how he would be able to support himself in South Africa.

17. The applicant’s mother and stepfather gave evidence in support of the application. They said that they had moved to Queensland in May 2018 as the applicant’s mother was suffering from a motor vehicle accident injury and the cold winters in Canberra made it too difficult to live there. She has not been working since she left Canberra. The applicant’s stepfather gave evidence of the work he was involved with.

18. The applicant’s mother accepted the reason the Department found the applicant was not a member of her family unit. She said that she still provides significant assistance to the applicant even though he is working full-time. She said that her greatest concern was that the applicant would have great difficulty if he were required to return to South Africa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant was, at the time of the application, and continues to be, at the time of this decision, the dependent child or a member of the family unit of his mother who met the primary criteria for the grant of the Subclass 820 Partner visa.

21. To meet the time of application criteria in cl.820.311 the applicant must be either a dependent child or a member of the family unit of a person who has applied for the visa. To meet the time of decision criteria in cl.820.321 the applicant must either be dependent on or a member of the family unit of a person who satisfies the primary criteria. The relevant definitions of a ‘member of the family unit’, a ‘dependent child’, and ‘dependent’ are found in r.1.12, r.1.03, and r.1.05A of the Regulations and are attached to this decision.

22. A report was provided from Mr van Meurs which diagnosed the applicant as likely suffering from Bipolar II disorder. The Tribunal does not accept that the diagnosis by Mr van Meurs means that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. It is noted in the report that the applicant has been working full time and Mr van Meurs stated he was unable to diagnose Bipolar II disorder at this time and would defer diagnosis “partially due to (the applicant’s) ability to remain in steady employ”. If the applicant does suffer from any mental health condition, it is not supported by the applicant’s past activity or any need or attempt to obtain any mental health treatment from any other professional source. The fact that he has been able to retain regular employment since he completed high school indicates the applicant is not incapacitated for work due to any mental health condition.

23. At the time of the application, the applicant was over the age of 18 years and living separately from his mother. There is little information as to what the applicant’s actual expenses for his food, clothing and shelter were both at the time of the application and at the time of this decision.

24. The applicant was working as a shop assistant at a newsagency until July 2016. His payslip dated 30 June 2016 shows he had gross year-to-date income of $23,546.30. This income was used to meet his basic needs for food, clothing and shelter. On occasions, he was given financial assistance from his mother to cover his general expenses. The financial assistance given by his mother was substantially less than the income the applicant was earning at the time of the application and for a substantial period immediately before the application was made. The Tribunal finds that at the time of the application the applicant’s reliance upon his mother was substantially less than the reliance he had on his own income to meet his basic needs for food, clothing and shelter.

25. Accordingly, the Tribunal finds the applicant does not meet the definition in r.1.03 of a dependent child or in r.1.12 of a member of the family unit of his mother, the primary applicant, at the time of the application and therefore does not meet the criteria in cl.820.311.

26. At the time of this decision, the applicant remains living in Canberra and renting a house with a friend. He is working full time. He is earning an income over $30,000 per annum. He continues to receive some support from his mother and stepfather, however, he is able to meet his basic needs for food, clothing and shelter from the income he earns. The financial support he receives from his mother and stepfather is substantially less than the income he earns. The Tribunal finds his reliance upon his mother for financial support to meet his basic needs for food, clothing and shelter is substantially less than his reliance upon his own income to meet those basic needs.

27. Accordingly, the Tribunal finds the applicant does not meet the definition in r.1.12 of a member of the family unit of his mother, the primary applicant, at the time of the decision and therefore does not meet the criteria in cl.820.321.

28. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    Ministerial intervention

29. The applicant and his mother asked the Tribunal to support an application for Ministerial intervention.

30. The applicant has argued the following should be taken into account when considering whether he should be granted a visa despite the fact he does not meet the criteria in respect of the current application:

    ·     The applicant has been living in Australia since he was 12 years old, a period of more than half his life;

    ·     The applicant would have met the criteria for the grant of the Subclass 801 (Residence) visa if it were not for the fact that his mother’s relationship with her sponsor, through no fault of her own, came to an end;

    ·     The applicant has shown initiative and drive to be able to support himself in Australia and has been able to find part-time work while he was at school and full-time work after he left school;

    ·     The applicant has a desire to join the Australian Defence Force, however, due to his immigration status he has not been able to join the force;

    ·     The applicant has no continuing relationship with his father in South Africa;

    ·     The applicant would have significant difficulties in finding employment in South Africa and would face a level of discrimination in light of the fact that he would be classed as a ‘coloured person’;

    ·     There is a high level of crime in the area where the applicant was previously living in Cape Town; and

    ·     Although the applicant has a number of relatives who continue to live in South Africa, it is unlikely they would be able to provide him any support if he were required to return to South Africa.

31. Particularly in light of the time the applicant has lived in Australia and the circumstances he would face if he were required to return to South Africa, the Tribunal supports the application for Ministerial intervention.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Hugh Sanderson
    Member

    
    

    Annexure

    Regulation 1.12 - Member of the family unit

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

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

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

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

    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and

    (ii)  is usually resident in the family head's household; and

    (iii)  is dependent on the family head.

    (2)  A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

    (a)  a spouse or de facto partner of the applicant; or

    (b)  a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.

    Regulation 1.03 – Dependent child

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

    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)  A person (the first person) is dependent on another person for the purposes of an application for: