PRASAD (Migration)

[2018] AATA 3714

PRASAD (Migration) [2018] AATA 3714 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Savitri Devi Prasad
Mr Vijendra Prasad

CASE NUMBER:  1714743

DIBP REFERENCE(S):  N98/300870

MEMBER:Helena Claringbold

DATE:17 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Change in Circumstance (Residence) (Class AG) visas.

Statement made on 17 July 2018 at 8:44am

CATCHWORDS
Migration – Change in Circumstance (Residence) (Class AG) visa – Subclass 806 (Family) – Whether the applicant is a special need relative – Where applicant suffers from migraines – Lack of evidence of health conditions – Alternative sources of care available – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 806.213, 806.221

CASES
Wu v Minister for Immigration and Multicultural Affairs [2003] FCAFC 81

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 20 October 1998, Mrs Savitri Devi Prasad, the applicant, applied for a Change in Circumstance (Residence) (Class AG) Subclass 806 visa. The application was based on her being a ‘special need relative’ to her sister, Mrs Rohini Barma Singh, the nominator.  Mr Vijendra Prasad, is the spouse of Mrs Prasad and is the secondary visa applicant.

2. On 14 January 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visa. The refusal was based on the applicant not meeting cl.806.213(a) of Schedule 2, as it was then, to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The secondary visa applicant was found not to meet the requirements of cl.806.213(c) to the Regulations.

3. On 26 June 2017, a delegate of the Minister for Immigration and Border Protection wrote to Mrs Prasad.  She was advised that she had not been not been properly notified of the refusal decision.  She was informed that as a result of the incorrect notification of the decision, the time period within which she could apply for merits review of the decision had not commenced.  She was instructed that the time period within which she could apply for merits review of the decision, would commenced when, it was deemed that she received the letter of 26 June 2017.  This is a review of the delegate’s decision.

4. At the time of application, Class AG contained four subclasses, Subclass 802 (Child):, Subclass 804 (Aged parent); Subclass 806 (Family); and Subclass 833 (Certain unlawful non-citizens). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of Subclass 806 (Family) visas.

5. On 9 July 2018, the applicants appeared before the Tribunal to give evidence and present arguments. They provided the Tribunal with a copy of the delegate’s decision records. The Tribunal also received oral evidence from Mrs Singh, the nominator, Ms Shamita Chandra, the applicant’s daughter-in-law and Mr Krishneel Prasad, the applicant’s son. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.

   ISSUE

   The issue in the present case is, whether, at the time of application, the applicants met the definition of ‘special need relative’ for the purposes of cl.806.213 of Schedule 2 to the Regulations.

   CLAIMS AND FINDINGS

   Is the applicant a ‘special need relative’?

8. Clause 806.213 of the Regulations requires that, at the time of application, the applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

   (a)      is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (b)      is usually resident in Australia; and

   (c)      has nominated the applicant for the grant of the visa.

9. ‘Special need relative’, as defined in r.1.03, means, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

   (a)      the citizen or resident has a permanent or long-term need for assistance because of   death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

   (b)      the assistance cannot reasonably be obtained from:

   (i)      any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)      welfare, hospital, nursing or community services in Australia;

10. Mrs Prasad was born in 1961 in Fiji. At the time of application she declared that her parents and four siblings lived in Fiji.  She also declared that she had three siblings living in Australia.  She last entered Australia on 12 December 1997, as the holder of a tourist visa. Since that time she applied for various visas, none of which have been successful and a Ministerial Intervention request which was also unsuccessful. Mr Prasad was born on 13 October 1956 in Fiji. At the time of application, his father was deceased.  His mother and three siblings lived in Fiji.

11. Mrs Rohini Barma Singh, was born in 1969. She is an Australian citizen.  At the time of application she was in a spousal relationship with Mr Dhinesh Narayan Singh, who was born in 1970.  There are two children from this relationship who were born in 1991 and 1996. At the time of application, Mrs Singh had two Australian permanent resident siblings living in Australia.

    The nominator’s need for assistance

12. In January 1998, the nominator stated that the applicant supported her family.  She stated that she suffers from migraine headaches and her son Aaron had a skin disease. She claimed that she and her husband were working odd hours, although her work and her ability to look after her children’s needs were restricted because of her headaches, in looking after for her children’s needs and that she and her husband suffered emotional distress.  Other information is that the applicant is always available and supports the family emotionally, psychologically and practically.  The nominator was of the view that she and her family would be prejudiced if the applicant and her family left Australia. The applicant stated that she would like to give emotional and psychological support to the nominator and her family.

13. In her statement of July 2018, the applicant stated that at the time of application the nominator had suffered severe migraines for eight years and her son suffered from a skin condition. She asserted that she provided care for the nominator’s son by bathing, feeding, clothing and giving him medication. She claimed to have supported the nominator emotionally, psychologically and physically. She maintained that she provided help with day-to-day needs in looking after the nominator and her children and doing housework.  She alleged that the nominator’s condition has improved and she is able to care for herself and the son, who is 22 years old and does not require any further care. She stated that she is  currently not providing any care for the nominator or any other member of the nominator’s family.  The applicant affirmed this evidence and told the Tribunal that she provided assistance to her sister and family for ten years.  She stated that when the nominator had severe migraines, she took medication and spent days in bed.  Mrs Singh told the Tribunal of the severity of the migraines she suffered and of the assistance provided to her by the applicant and that she would not have been able to survive without that assistance.   The applicant told the Tribunal that the nominators other sister and brother, lived close to Mrs Singh but were unable to provide assistance to her because of their own family and work commitments. She stated that Mrs Singh did not investigate the availability of welfare, hospital, nursing or community services in Australia.  She told the Tribunal that Mrs Singh is coping well and at this time does not need assistance and that the son is an adult and does not need assistance.

14. The applicant’s migration agent put forward that the emotional distress suffered by the nominator as a result of her migraine condition, left her incapable of attending to daily tasks including caring for her children and attending to household chores and was a serious circumstance resulting in a long-term need for assistance.  She quotes Wu v Minister for Immigration and Multicultural Affairs [2003] FCAFC 81 ‘whereby the Full Court found that the phrase “serious” in the context of the definition of special need relative’ ‘involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person’. She contends that the son’s skin condition was a prolonged illness resulting in a long-term need for assistance. She claimed that the assistance provided by the applicant to the nominator and her son could not reasonably be obtained from the nominator’s other Australian citizen or Australian permanent resident or eligible New Zealand relatives, including Mr Singh who worked odd and irregular hours. In addition, the assistance provided by the applicant to the nominator could not reasonably be obtained from welfare, nursing or community services.

15. Third party statements attest to the good character of the applicants.  They describe the applicant’s contribution to the Fijian community and the significant impact their departure from Australia would have on that community.

16. At the time of application and during the processing of the visa application process, the applicants did not provide any independent evidence about the nominator’s health or the nominator’s son’s health, either physical or psychological.  There is no information from a health professional about any treatment or medication prescribed for the nominator or her son and no supportive information that the nominator or her son had a permanent or long-term need for assistance because of their conditions or that of another member of the nominator’s family unit.  The Tribunal is not satisfied on the evidence provided and in particular the lack of any medical evidence, that at the time of application, the nominator, being, the citizen or resident, had a permanent or long-term need for assistance because of  death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit.

17. The evidence before the Tribunal is that Mrs Singh did not investigate or attempt to obtain assistance from welfare, hospital, nursing or community services in Australia.  Mrs Singh did not provide the Tribunal with any explanation or reason for not doing so. The Tribunal is not satisfied that assistance for Mrs Singh or her son could not be reasonably obtained from welfare, hospital, nursing or community services in Australia because there is no independent evidence before the Tribunal that this was the case.

18. The Tribunal considered the evidence, individually and as a whole. The Tribunal is not satisfied that, at the time of application, the applicant was a ‘special need relative’ of the nominator. The applicant does not meet cl.806.213 of Schedule 2 to the Regulations.

19. As the Tribunal has found that the primary visa applicant does not satisfy a primary criterion, and at least one visa applicant must satisfy the primary criteria, the Tribunal has considered whether the secondary applicant, Mr Prasad is a ‘special need relative’ of the nominator.

    Is Mr Prasad a relative of the nominator?

20. Regulation 1.03 provided the definition of ‘relative’ in relation to a person and means:

    (a)      in the case of an applicant for a Subclass 200 (Refugee) visa or a Protection (Class AZ) visa:

    (i)      a close relative; or

    (ii)      a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew; or

    (iii)     a first or second cousin; or

    (b)      in any other case:

    (i)       a close relative; or

    (ii)      a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew;

    ‘close relative’ in relation to a person, means:

    (a)      the spouse of the person; or

    (b)      a child, adopted child, parent, brother or sister of the person; or

    (c)      a step-child, adopted step-child, step-parent, step-brother or step-sister of the person;

21. The secondary visa applicant has been nominated by the nominator who is his sister-in-law. The secondary visa applicant is not related to a ‘relative’ of the nominator within the required definition. As a result he does not meet the definition of ‘special need relative’. As a result the secondary visa applicant does not meet cl.806.213 of Schedule 2 to the Regulations.

    Other considerations

22. The applicant’s migration agent stated that the applicants contend that at the time of decision they are the ‘special need relative’ for their Australian citizen son, Mr Krishneel Prasad and his spouse, Ms Shamita Chandra and their son and that they meet the definition of ‘special need relative’.  Their evidence is that in 2015, Shamita was diagnosed with having [a particular medical condition] and has a permanent long term need for assistance.  The applicant, Shamita and Krishneel told the Tribunal that because of Shamita’s condition she is prohibited from doing heavy work.  She is unable to attend to daily duties, including the daily care of her son and household matters. They stated that the applicants live with Shamita and Krishneel and provide daily assistance.  Other information provided is that should the applicant return to Fiji their absence would impact the Shamita and Krishneel’s financial stability.  Krishneel, who is the main earner in the household, would be required to stop work to assist Shamita and care for their son. 

23. The applicant’s migration agent asked the Tribunal whether the applicant being nominated was a criterion to be satisfied at the time of application; she stated that on her reading of the criteria for the grant of the visa, she felt it was not a time of application criteria.  She asked whether Krishneel, at the time of decision, could act as the nominator in this matter.

24. The Tribunal is of the view that, cl.806.221 of Schedule 2 to the Regulations requires that, at the time of decision, the applicant continues to satisfy, the time of application criteria in cl.806.213 of Schedule 2 to the Regulations, which requires that, at the time of application, the applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

    (a)      is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

    (b)      is usually resident in Australia; and

    (c)      has nominated the applicant for the grant of the visa.

25. The applicant’s told the Tribunal that they have been living in Australia for twenty years and   would find it difficult to return to Fiji. They said that they have always supported themselves financially in Australia and would find it difficult to do this in Fiji. They requested that they be permitted to remain in Australia and be allowed lodge an application for contributory parent visas onshore.

26. While the Tribunal is sympathetic to the applicants’ circumstances, the Tribunal declines the applicants’ request that it refer this matter to the Minister seeking intervention.  However, it encourages the applicant’s to bring the matter before the Minister and to seek intervention to allow an onshore visa application.

27. As the Tribunal determined that the applicants do not meet cl.806.213 of Schedule 2 to the Regulations it has not gone on to consider the remaining criteria for the grant of the visas.

28. There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other subclasses within a Change in Circumstance (Residence) (Class AG) visa.

29. For the reasons above, the visa applicants do not meet the criteria for Subclass 806 visas.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicants Change in Circumstance (Residence) (Class AG) visas.

    Helena Claringbold
    Member