OBASOHAN (Migration)

[2021] AATA 3803

OBASOHAN (Migration) [2021] AATA 3803 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Esohe Benny OBASOHAN
Mr Osasere Eugene Idubor
Mr Ovbokhan Paul Idubor
Ms Olivia Lola Idubor
Mr Odion Peter Idubor

CASE NUMBER:  1801521

HOME AFFAIRS REFERENCE(S):          CLF2014/92220

MEMBER:Russell Matheson

DATE:8 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 08 July 2021 at 12:55pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – member of family unit – ‘dependent child’ – financially independent – engaged in gainful employment – unique and exceptional circumstances – length of time processing the application – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cl 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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicants’ mother) applied for the visa on 27 June 2014 on the basis of her relationship with her 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. On 23 February 2017 a previously constituted Tribunal remitted the first named applicants’ application for a Partner (Temporary) (Class UK) visa on the grounds that she met certain criteria for the grant of the visa. Additionally, the Tribunal remitted the application for the second, third, fourth and fifth named applicants for the Department to assess in full. On 11 January 2018 the first named applicant was granted her Partner (Temporary) (Class UK) visa. On the same date the Department refused the other named applicants their visa applications.

4. The delegate refused to grant the visas on the basis that the visa applicants did not satisfy cl.820.321 of the Act because the delegate found that the applicants did not meet the definition of ‘dependent child’ in relation to regulation 1.05A. The delegate found therefore that the applicants were not members of the family unit of the primary applicant as defined in Regulation 1.12.

5. The applicants appeared before the Tribunal on 28 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Other and English languages.

6. The applicants were not represented in relation to the review by their registered migration agent.

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

   Background

8. The applicants lodged valid applications for a UK Partner (Temporary) and BS Partner (Residence) visas on 26 June 2014 on the grounds of being the dependant of the primary applicant (Esohe Benny Obasohan) born in March 1976, their mother, who claimed to be in a spousal relationship with an Australian citizen sponsor who lodged a sponsorship in support of the application.

9. On 9 September 2015, the application was refused by a delegate of the Minister for Immigration and Border Protection. As none of the applicants met the primary criteria, the delegate found that none of the applicants were able to meet the secondary criterion of       cl. 820.321 by virtue of being a dependant of, or a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Partner (Temporary) (class UK) (subclass 820) visa.

10. They then lodged an application to the Administrative Appeals Tribunal (AAT). On 23 February 2017, the Tribunal decided that because the primary applicant, Esohe Benny Obasohan, was being remitted, the Tribunal would remit the further applicants for the Department to assess in full.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal has before it the primary applicant’s file from the Department of Immigration and Border Protection (the Department); its own file; and a copy of the Department’s decision provided by the primary applicant to the Tribunal.

12. The evidence the parties provided to the Tribunal is recorded throughout this decision record.

13. The issue in the present case is whether the applicants are dependent upon the primary applicant and hence whether they meet cl.820.321 of the Regulations and therefore r.1.05A.

14. Clause 820.311 requires the applicants to be either a dependent child or a member of the family unit of another person. That criterion must be met at the time of decision – cl.820.321.

15. The issue in the present case is whether the applicants are dependent children of the primary visa applicant at the time of decision.

    WHETHER THE APPLICANT IS A “DEPENDENT CHILD”

    Reg 1.12     Member of the family unit

16. 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.

1. The Tribunal has considered whether the applicants are “members of the family unit” as defined in r.1.12. The applicants have provided evidence that they are the children of the primary applicant (mother/family head). They are not engaged, married or in a de facto relationship.

2. The applicants are 23 years of age or older and have not provided any evidence that they are wholly or substantially reliant on the family head (mother) or their partner for financial support because they are incapacitated for work due to the partial loss of their bodily or mental functions. Therefore, they are not ‘dependent’ within the meaning of r.1.05A.

3. The concept of dependency in r.1.05A is limited to financial dependency, except in relation to certain specified protection and humanitarian visa classes for which it is open to consider whether the person is reliant on another for psychological or physical support.

4. Specifically, r.1.03 provides that ‘dependent’ has the meaning given by r.1.05A.[1]  Regulation 1.05A currently states:

   [1] The definition in r.1.05A was inserted by r.5(1) of Migration Amendment Regulations 1999 (No.13), (SR 1999 No.259).

   1.05A (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)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.

5. A finding that a person is ‘dependent’ on another person therefore involves the following specific findings of fact, that:

   ·the applicant is ‘wholly or substantially’ reliant on the other person for financial support as a matter of fact; AND

   ·is so reliant at the time that the finding of dependence is made AND for a substantial period immediately before that time; AND

   ·the financial support being provided in fact is to meet the applicant’s basic needs for food, clothing and shelter; AND

   ·the applicant’s reliance on the other person is greater than his or her reliance on any other person or source of support; OR

   ·the applicant is wholly or substantially reliant on the other person for financial support because they are incapacitated for work as a result of total or partial loss of bodily or mental functions; OR

   ·for certain specified protection and humanitarian visa classes, whether the applicant is wholly or substantially reliant on the other person for psychological or physical support.

6. There is no information which would indicate that the applicants are incapacitated for work for any reason.

7. At the time of decision, the applicant is required to meet the criteria in cl.820.321. This requires the following:

   In the case of an applicant referred to in clause 820.311, the applicant:

   a)is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) visa (the person who satisfies the primary criteria); or

   b)is a person to whom each of the following applies:

   i.the person made a combined application with the person who satisfies the primary criteria;

   ii.subsequent to the combined application being made, the person was found by the Minister not to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria;

   iii.subsequent to the person who satisfies the primary criteria being granted a Subclass 820 (Partner) visa and a Subclass 801 (Partner) visa – the Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria.

   Is the applicant a dependent child of the primary visa applicant?

8. The effect of cl.820.321 is that a secondary applicant must be a dependent child or a member of the family unit of the primary applicant at the time of the application and must continue to meet the criteria of being a dependent child or a member of the family unit of the primary applicant at the time the decision is made.

9. The applicants’ mother gave evidence at the hearing that she is no longer in a relationship with her sponsor. She further stated that all of her children have either been working part time or full-time or studying and that she provides no financial support to her children as she stopped working as a cleaner in 2018. She further stated that they are all currently working or combining study with work. The applicants all gave evidence that they have been and continue to work or combine work with their study.

10. The dependents are listed below: 

    ·Mr Osasere Eugen Idubor (Eugene) the second named applicant born 30 August 1993;

    ·Mr Ovbokhan Paul Idubor (Paul) the third named applicant born 20 December 1995;

    ·Ms Olivia Lola Idubor (Olivia) the fourth named applicant born 12 July 1997; and

    ·Mr Odion Peter Idubor (Peter) the fifth named applicant born 20 December 1995;

11. The second named applicant (Eugene) gave details of his current circumstances. He stated that he had been working for PK Cleaning from 2014 to 2018 and was earning between $600-$700 a week. He then worked for a Credo Merchandising Placement for approximately eight months finishing in July 2018 and then started work with Australian Foundation for Disability working part-time earning $2000 a fortnight. He further stated that he is currently studying and working. Eugene stated that he is paying for his own studies and was not dependent on his mother. Post the Tribunal hearing he provided a copy of a confirmation of enrolment letter for the Australian Paramedical College indicating that he is enrolled in a Diploma of Paramedical Science course for 24 months for the period 11 November 2019 to 10 November 2021.  Additionally, the applicant stated that he didn’t want to stay idle and decided to work. He said that his mother is unable to work and battling mental health issues as a result of a motor vehicle accident she was involved in and she is reliant upon her children for financial support.

12. The third named applicant (Paul) gave details of his current circumstances. He stated that he had been working since 2015 to early 2019 and that he received no financial assistance from his mother other than she topped up his Opal card. He further stated that between 2015 and 2016 he had two jobs working part-time for PK Cleaning and doing construction work earning $650 per week. He then worked for a mattress company until the end of 2017 earning $700 per week and then worked for a decorative plating company until late 2018 earning $700 per week and then started working for SEC Plating in early 2019 earning   $700-750 per week to present. Paul stated that all the named dependents contribute $350 per week towards rent as their mother is not working.

13. The fourth named applicant (Olivia) gave details of her current circumstances. She stated that she has been in stable employment from 2014 and she is currently working full-time 38 hrs a week at Cash Stop 38 and also currently studying. She further stated she is paying for her studies from her salary and spends the rest of her money on her basic needs and chips in for rent. The applicant provided a copy of the on-line enrolment with Upskilled for a Diploma of Community Services course at a cost of $5,950.00 course and Olivia gave evidence that she was wholly dependent on her mother when they first arrived in Australia.

14. The fifth name applicant (Peter) gave details of his current situation. He stated that he had been working two jobs with PK Cleaning and construction work from 2014 to 2016 working 38 hrs a week. He claims to have completed a course as a painter. In February 2019 he obtained a Certificate III in Individual Support (Ageing) from Quality Care Training Services, and he is undergoing training to become a disability support worker. He is currently working between 26 and 38hours per week in aged care. He further states that he is saving his money and supports his mother with the rent. The applicant gave evidence that his mother gave him money for transport and lunch and that he and his mother jointly paid for his studying fees.

15. The Tribunal raised with the applicants the time of decision criteria in cl.820.321 during the hearing. All the applicants acknowledged that they have been working and receiving substantial income and are able to support themselves and are not dependent on their mother and it appears that she is more dependent on them for financial assistance. The Tribunal accepts that their mother has and continues to provide limited support such as care and comfort, but they are no longer substantially reliant upon her for financial support to meet her basic needs for food, clothing and shelter.

16. The Tribunal explained to the applicants the necessity that they must be a dependent child of their mother at the time of the application and must continue to be a dependent of their mother at the time of the decision. The applicant’s acknowledged they did not meet the time of decision criteria.

17. The Tribunal finds that at the time of this decision and for a substantial period immediately before that time the applicants have not been reliant on their mother for financial support to meet their basic needs for food, clothing and shelter. The income the applicants have been able to earn whilst working has been utilised for their basic needs and education which is greater than any reliance, they have upon any other source of income to meet her basic needs for food, clothing and shelter.

18. For the above reasons, the Tribunal finds that at the time of this decision the applicants do not meet the criteria for the definition of a dependent in r.1.05A(1). Accordingly, the applicants are not, at the time of this decision, a dependent child of a person, their mother, who satisfies the primary criteria.

19. Accordingly, the Tribunal finds the applicants do not meet the criteria in cl.820.321 and the decision to refuse the applicant the visa must be affirmed.

    Ministerial intervention

20. The applicants acknowledged that they did not meet the time of decision criteria. They made no indication that they intended to make an application for Ministerial intervention. The Tribunal is of the view, in this case, Ministerial intervention should be considered.

21. The Tribunal is extremely sympathetic regarding the applicants’ circumstances since filing the application and found them all to be honest and forthright when providing information to the Tribunal. The Tribunal acknowledges that they are upstanding young people prepared to make a strong contribution to society. The Tribunal informed the applicants that it was prepared to receive any further submissions relevant to their case post the hearing before the Tribunal made its decision. On 16 November 2020 the applicants’ authorised representative wrote to the Tribunal requesting a 3-month extension to provide a further submission to the Tribunal. On 26 February 2021 the applicants were granted an extension of 21 days until 19 March 2021 to make further submissions.

22. On 19 March the Tribunal received a written submission through the applicants’ representative outlining what they believed to be mitigating circumstances surrounding the application. The applicants’ mother submits that her children have been left in a desperate situation due to ongoing delays in processing and the practical consequences of the same, as well as ineffective legal advice.

23. She submits that she commenced an Australian partner visa application from Nigeria in 2010. The application made was for a prospective marriage visa and was not finalised until November 2013. She further submits that the lengthy processing delays from 2010 to date have materially impacted upon the difficulties being experienced by her dependents. Inevitably, they grew older and began to form their own lives independently.

24. In addition, she advises that her relationship with her sponsor at the time was also affected by the burden of a four-year waiting period. She declares that upon arrival in Australia, she discovered that her sponsor had commenced another relationship, causing her emotional and psychological distress. She further states that when she arrived in Australia her children were wholly reliant on her for a substantial period immediately before that time, for financial support to meet their basic needs for food, clothing and shelter. She states given the unfortunate circumstances in which they found themselves, however, they were encouraged to engage in activities that would build upon their skills, training/education, and experience. Her intention was to ensure they were engaged in productive endeavours that would build upon their futures in a positive and constructive way.

25. The applicants mother states that during this time her children became less reliant upon her and it was simply intended as a way in which for them to use their time wisely. The purpose of seeking any opportunity or sources of income requires careful consideration in this matter. She confirms that her children randomly paid some bills and that it is not unusual for her children to surprise her, as their Nigerian culture supports such behaviour. In most ethnic groups in Nigeria, the difference between a properly trained child and other children is how they care for their parents.

1. Their mother emphasises that her family's background must be considered in understanding the behaviour of her children. The eldest children gained practical skills by working as cleaners and subsequently gained admission into colleges. The Tribunal acknowledges that the applicants are studying or have obtained qualifications or specialist skills in specialist fields such as community services, disability services, aged care and industrial electroplating and there is a shortage in Australia for such skills.

2. The fourth name applicant (Olivia) submits in her statement that she is a student at Upskilled Education, where she is studying full-time for a Diploma in Community Services. Olivia also has a full-time job at Cash Stop Financial Services, where she has worked as a Sales Associate for the last five years. She confirms that her mother encouraged her to find a trade or skill because she felt it necessary and that it would demonstrate a genuine desire to integrate into Australian culture. The cost of university study as international students was prohibitively expensive, and they concentrated on opportunities that would allow for workplace learning. She advises that her mother has continued to provide her basic needs and controls her spending of the income that she generates from her employment. This is largely because in the ‘Bini culture’, it is expected that you will remain at home with your parent/s until a time when you are married. The applicant further states she believes it is unfair to be penalised for having sought employment as a way in which to be a productive member of society and that earning an income does not exempt the mother from the provision of her basic needs. The income that she has earnt has only ever been used for international travel (to the USA and Nigeria) and non-essential items. The Tribunal accepts that this is the cultural norm, but it is her income that she is earning that is paying for her basic needs, only that it is controlled by her mother. The Tribunal accepts that it is the cultural norm in Nigeria for children to remain at home with their parent/s until a time they are married but the income the applicant has been generating is attributed to her working fulltime and she is not ‘wholly or substantially’ reliant on the other person (her mother) for financial support as a matter of fact.

3. Olivia submits that the risk of deportation to Nigeria is made more difficult for her as she identifies herself as being bisexual. This is not something that is readily accepted in Nigeria, and the potential threat to life on this basis cannot and should not be ignored. The Tribunal acknowledges under the country profile of Nigeria. LGBT people are criminalised under both the Criminal Code Act and the Same Sex Marriage (Prohibition) Act 2013. The Tribunal accepts that the applicant faces a real risk of harm if returned to Nigeria.  

4. The applicants submit that they are law-abiding and responsible taxpayers and are productive members of society and they have strong community links. They have found themselves in challenging circumstances by no fault of their own. The applicants’ only purpose of pursuing constructive objectives in Australia, whether it was employment or education, was to avoid the temptation of being negatively influenced by irresponsible members of the same community. They have consistently remained honest with their situations and request the Tribunal to use its discretionary powers to remedy the situation. and make a favourable decision in their favour. The Tribunal does not have any discretionary powers in this case but can refer the matter to the Minister for intervention. The Tribunal accepts that the applicants have been candid and honest when explaining their circumstances.

5. The Tribunal believes that there are unique and exceptional circumstances which deserve Ministerial intervention. In particular the circumstances of Olivia and the length of time processing the application. The Tribunal believes the contribution the applicants have made to Australia since arriving in Australia would justify the Minister intervening in this application.

6. The Tribunal accepts that there is another pathway for the applicants to apply for skilled migration outside Australia. As previously stated, the Tribunal acknowledges that the applicants are studying or have obtained qualifications or specialist skills in valuable and essential services such as community services, disability services, aged care and industrial electroplating and there is a shortage in Australia for those skills.

7. Although the Tribunal has affirmed the decision not to grant the applications for Partner (Temporary) (Class UK) visas the Tribunal believes that the applicant’s case involves unique and exceptional circumstances (s.4 of the Minister’s Guidelines) that should be brought to the attention of the Minister for consideration

   DECISION

8. The Tribunal affirms the decisions not to grant the applicants a Partner (Temporary) (Class UK) visas.

   Russell Matheson
   Member