Ruiz Cortes (Migration) - [2017] AATA 415

Ruiz Cortes (Migration) [2017] AATA 415 (1 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rosa Elena Ruiz Cortes
CASE NUMBER:  1513105
DIBP REFERENCE(S):  BCC2015/1247180
MEMBER:Jennifer Ciantar
DATE:1 March 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 01 March 2017 at 10:55am
CATCHWORDS
Migration - Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Substantially reliant – Substantial period – Resident in the household
LEGISLATION
Migration Act 1958 - s 65
Migration Regulations 1994, Schedule 2 - cl 186.311, r.1.03, r.1.05A(1), r.1.12, r.1.12(1)(e),
CASES
Huang v MIMIA
[2007] FMCA 720

Huynh v MIMIA
(2006) 152 FCR 576

Al Naqi v MIAC [2007] FMCA 874
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 September 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration for the visa on 29 April 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the primary applicant, Ms Pena Collazos, was seeking the visa in Temporary Residence Transition stream, and the visa was granted on 4 September 2015.
The delegate refused to grant the visa because the applicant did not meet cl.186.311 of Schedule 2 to the Regulations because the delegate found that the applicant is not a member of the family unit of the primary applicant.
The applicant appeared before the Tribunal on 22 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s son and daughter in law, Mr Nicholas Viana Ruiz and Ms Claudia Pena Collazos. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ruiz Cortes (Migration)

Details

AGLC: Ruiz Cortes (Migration) [2017] AATA 415
Case: [2017] AATA 415
Decision Date: 1 March 2017

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), before the Administrative Appeals Tribunal. The applicant sought to be recognised as a member of the family unit of the primary visa holder, Ms Pena Collazos, who is the applicant's daughter-in-law.

The central legal issue before the Tribunal was whether the applicant met the definition of a "member of the family unit" as defined in regulation 1.12 of the Migration Regulations 1994. This definition requires, among other things, that the applicant be a relative of the family head or their spouse, usually resident in the family head's household, and dependent on the family head. The Tribunal also considered the definitions of "relative" and "close relative" within the regulations.

The Tribunal found that the applicant was the mother of the primary visa holder's spouse, thus qualifying as a "close relative" for the purposes of clause 186.311. The evidence indicated that the applicant had been residing in the primary applicant's household since September 2014 and had been wholly dependent on her son and daughter-in-law for financial support since February 2012. The Tribunal noted that the applicant had no property in her home country and that her son had provided her with financial assistance since 2010, including rent and living expenses.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 186.311 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is a member of the family unit of the primary applicant, Ms Pena Collazos, who is the applicant’s daughter in law.Other criteria Clause 186.311 requires that the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Member of the family unit is defined in r.1.12 and includes a relative of the family head or of a spouse or de facto partner of the family head and who does not have a spouse or de facto partner, and is usually resident in the family head’s household, and is dependent on the family head: (r.1.12(1)(e)). Relative is defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). ‘Close relative’ is also defined in r.1.03 in relation to the person as the spouse or de facto partner of the person, or a child, parent, brother or sister of the person, or step child, step brother or step sister of the person. The delegate found that the applicant visited Australia in 2010 for 3 months and in 2012 for 4 months. She returned to Australia on a tourist visa on 3 September 2014 and has since lived in the primary applicant’s household. In this case, the delegate accepted that the applicant is the mother of Mr Nicholas Andres Viana Ruiz, the spouse of the primary visa holder, Ms Claudia Patricia Pena Collazos, and therefore she is the ‘close relative’ of an Australian relative for the purposes of cl.186.311. In a submission, dated 1 August 2016, the applicant states that she is wholly dependent upon her son, Mr Nicholas Andres Viana Ruiz and her daughter in law, Ms Claudia Patricia Pena Collazos, the primary applicant. The applicant has provided a statutory declaration to the effect that she was in a de facto relationship with the father of her son from 1977 to 1981 and she has remained single ever since. She has been usually resident in the Wolli Creek home of her son and daughter in law since her arrival in Australia on 3 September 2014. She does not own any property in Colombia and had been living in an apartment owned by her son but the lease (copy provided) has since been terminated. Her son had been sending money to the applicant since 2010 and evidence has been provided that he paid her rent and all living expenses. Since February 2012, the applicant has been wholly dependent upon her son and daughter in law. Between 2010 and 2011 the applicant’s son electronically transferred funds to the applicant and from 2011 they transferred funds through Ms Yolanda Yanez, a resident in Colombo. The arrangement was that the applicant’s son financially supported Ms Yanez’s daughter in Australia and in turn, Ms Yanez transferred equivalent funds to the visa applicant’s bank account. Ms Yanez and her daughter have provided declarations.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 186 visa.DECISION The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:·cl.186.311 of Schedule 2 to the Regulations.Jennifer CiantarMember

Ratio Decidendi

Legal Principle Established

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