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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. 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.

7. The applicant was represented in relation to the review by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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.

11. 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)).

12. 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.

13. 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.

14. 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.

15. Since her arrival in Australia, the applicant has received direct support from her son and daughter in law and bank account statements (provided) show transfers to the applicant’s account.

16. In a further submission the applicant writes that she has been usually resident in the family head’s household since her arrival in Australia. Her son and daughter in law purchase the food for the whole house. They also provide regular transfers of money into the applicant’s account for clothes, transport and entertainment. The applicant has no other source of income.  

17. On 20 February 2017 the applicant provided the Tribunal with:

    ·     Letters from Maria Cecilia Ruiz Cortes and Dora Ruiz Cortes who state that they are the sisters of the visa applicant. The visa applicant had a relationship with the father of her son, Nicholas, but they never married and the relationship finished more than 30 years ago; the visa applicant has not been in a relationship ever since;  

    ·     a letter from Oscar Javier Pérez who states that he has known the applicant since September 2014 when she moved into the unit next door, to live with her son, his wife and their child;

    ·     bank statements for an account held in the name of Mr Nicholas Ruiz and Ms Claudia Collazos;

    ·     bank statements held in the visa applicant’s name.

18. The visa applicant stated that she came to Australia in September 2014 and she has lived with her son and daughter-in-law and their son, her grandson, ever since. Her son came to Australia about nine years ago and after his departure from Bogota, the applicant lived alone in two different apartments. The lease of the most recent apartment was in his name. A copy of the lease dated 2013 has been provided to the Tribunal. The applicant stated that her son paid her rent and all her other expenses from February 2012. Prior to this, she had worked in childcare but then she had businesses including a restaurant and a moneylending operation but neither was successful so she closed the businesses down.

19. When asked about the arrangements regarding her financial support, the applicant stated that her son used to send money for her rent and living expenses. He sent some money through bank transfers and he also gave money to the parents of his wife, as the parents lived near the visa applicant. When asked why her son would have given money to his wife’s parents rather than directly to the applicant, the applicant stated that her son was flexible in the method he used to provide money to her.

20. When asked about the arrangement whereby the applicant’s son paid the expenses of Paula Yanez in Australia, and in return her mother, Mrs Yanez, gave money to the applicant, the applicant stated she cannot recall when this arrangement was in effect or how long it was in effect.

21. The applicant stated that since coming to Australia she has had no source of financial support except for her son and his wife. When asked if she and her son have an arrangement about how much money he will provide to her, the applicant stated that she has a bank card which she uses to pay her expenses. When asked about her monthly expenses, the applicant stated that her son pays the rent and everything else and she does not know exactly how much the monthly expenses are. She cannot recall the exact amount of the rent. The applicant stated that she has only one bank account which is the Commonwealth account and she has provided the Tribunal with statements.

22. Mr Viana Ruiz stated that she came to Australia on a student visa in 2008, with his wife. Before his mother came to Australia, he sent money to her each month, via bank transfer. The amount he sent varied but the applicant needed approximately $450 a month to cover her basic expenses. He provided the applicant with between $400 and $600 per month. His mother had closed down her business and from 2013 or 2014 he paid all her expenses. As well as sending money each month he would also sometimes use a money transfer agency or send money through friends.

23. When asked about the arrangement with Paula Yanez and her mother, Mr Viana Ruiz stated that between 2010 and 2013 he gave money to Paula Yanez but he cannot recall the exact amounts or the specific arrangements. However, he has supported his mother since 2012.

24. Since her arrival in Australia, Mr Viana Ruiz has paid all the applicant’s expenses including food. She lives with Mr Ruiz and Ms Pena Collazos and they pay the rent. They transfer approximately $200 per week to the applicant’s bank account to pay for her incidental expenses including transport and entertainment. Usually they purchase clothes for her but sometime she purchases her own clothes.

25. The applicant stated that she has no other children and she has some siblings in Columbia and the United States.

26. The representative stated that the applicant had been included, as a secondary applicant, on the primary applicant’s Subclass 457 visa application but at that time the Department was of the view that the applicant was not dependent because she had not been in Australia for a sufficiently long period of time. However, by the time the Subclass 186 visa application was lodged, the applicant had been in Australia for some years.

    Is the visa applicant dependent on the Australian relative?

27. The definition of ‘dependent’ as it applies to this application is set out in r.1.05A(1) of the Regulations:

    [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)      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.

28. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

29. For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

30. Clause 186.311 is a time of decision criterion. Accordingly, for the applicant to meet r.1.05A the Tribunal needs to be satisfied that for a substantial period immediately prior to the time of the Tribunal’s decision, the applicant was wholly or substantially reliant on her daughter in law and son for financial support to meet her basic needs for food, clothing and shelter. Furthermore, the Tribunal needs to be satisfied that the applicant’s reliance on her daughter in law and son was greater than any reliance on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter.

31. The Regulations generally identify a single person on whom a visa applicant is required to be ‘dependent’.  As a practical matter, where that person is part of a couple it may be difficult to ascertain whether that person or his or her partner is in fact the person on whom the visa applicant is reliant.

32. The Federal Magistrates Court in Al Naqi v MIAC[1] took the view that a ‘broad practical judgment’ is required in the circumstances of the particular case and this may require consideration of the underlying source of the support and the reasons for it. Federal Magistrate Riethmuller commented that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided.’[2]  The Tribunal accepts on the evidence before it that the applicant’s son and daughter in law live together and have combined finances. Consistent with Al Naqi, the Tribunal accepts that Mr Viana Ruiz may be considered to be the source of the support because it is his spousal relationship with the Subclass 186 visa holder that is the reason for the financial support being provided to the applicant.

    [1] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007).

    [2] Al Naqi v MIAC [2007] FMCA 874 (Riethmuller FM, 5 June 2007) at [16].

33. The applicant arrived in Australia in September 2014. The applicant has now lived in Australia for more than 2 years. Departmental guidelines (PAM3) interpret a ‘substantial period’ as usually taken to be at least 12 months.[3] The Tribunal is not bound by the Department’s policy but considers that in the circumstance of the case, the period since the applicant’s arrival, more than 2 years ago, is a substantial period of time.

    [3] PAM3: Act-defined terms - s5G – Relationships and family members – Dependent family members – paragraph 42.2.

34. The applicant has claimed that all her weekly expenses, which are rent $135, food $60, entertainment $25, transport $20 and other $25, are paid by her daughter in law and her son with whom she has lived since her arrival in Australia. The Tribunal has considered the applicant’s bank statements and those of her son and daughter in law. The statements show frequent transfers into the applicant’s account identified as “Ma Expenses”. For example, in the period 29 June 2016 to 4 August 2016 there were 10 such deposits totalling $1060. There is no other source of income on the statements. Statements for the periods, 4 November 2014 to 4 February 2015, 2 February 2015 to 4 May 2015, 5 May 2015 to 4 August 2015, 5 August 2015 to 4 November 2015, 5 November 2015 to 4 February 2016, 5 February 2016 to 4 May 2016 to 5 May 2016 to 28 June 2016, 5 August 2016 to 4 November 2016, and 5 November 2016 to 4 February 2017 contain similar deposits, made every week or two, and show no other source of income. The bank statements provided for Mr Viana Ruiz and Ms Pena Collazos show corresponding transfers.

35. The Tribunal accepts that since her arrival in Australia about 2.5 years ago the applicant has lived in the same household as Mr Viana Ruiz and Ms Pena Collazos and that they pay the rent and purchase food for the household including the applicant. The Tribunal accepts that Mr Viana Ruiz and Ms Pena Collazos transfer money into the applicant’s account for her day to day living expenses including the purchase of clothes. The Tribunal accepts that the applicant has no other source of income other than Mr Viana Ruiz and Ms Pena Collazos.

36. The Tribunal has some concerns about the claimed financial support provided to the applicant before she arrived in Australia, particularly the claims that Mr Viana Ruiz and Ms Pena Collazos provided financial support to Paula Yanez in Australia and her mother then gave the equivalent financial support to the applicant. The applicant was unable to provide any detail to the Tribunal about this arrangement. However, the Tribunal is of the view that it is only necessary for the Tribunal to consider if the applicant has been wholly or substantially reliant on Mr Viana Ruiz and Ms Pena Collazos for financial support since her arrival in Australia.  

37. On balance, the Tribunal is satisfied that the applicant is, and has been for a substantial period immediately before the relevant time, wholly or substantially reliant on Mr Viana Ruiz and Ms Pena Collazos for financial support to meet the applicant’s basic needs for food, clothing and shelter.

38. For this reason, the Tribunal concludes that the applicant is a dependent of her son and daughter in law within the meaning of r.1.05A, and accordingly is a dependent relative of the family head for the purpose of the definition of member of the family unit in r.1.12(1)(e).

39. As a member of the family unit of her daughter and her spouse, a primary holder of a Subclass 186 visa, the applicant accordingly satisfies cl.186.311.

40. 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

41. 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 Ciantar
    Member