Shipton (Migration)

[2018] AATA 5319

Shipton (Migration) [2018] AATA 5319 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ruth Shipton

CASE NUMBER:  1600043

HOME AFFAIRS REFERENCE(S):           BCC2015/1298444

MEMBER:Warren Stooke AM

DATE:31 October 2018

PLACE OF DECISION:  Melbourne

DECISION:    

The Tribunal remits the application for a secondary Temporary Residence Transition (subclass 186) visa, with the direction that the applicant meets the following criteria for a secondary Temporary Residence Transition (subclass 186):

· cl. 186.311 of Schedule 2 to the Regulations;

Statement made on 31 October 2018 at 6:00pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – dependency on primary visa holder – inextricable connection between the sisters – financial dependence – residence or place of abode – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2, cl 186.311

CASES
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241
Hafza v Director General of Social Security [1985] FCA 164

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 on 21 December 2015 to refuse to grant the applicant an Temporary Residence Transition (subclass 186) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 May 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. At the commencement of the hearing the applicant stated that she had read the decision of the delegate and understood the content of the decision.

4. 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 Labour Agreement stream. In this context, Clause 186.311 of Schedule 2 of the Regulations requires the applicant to comply with the following:

   186.31—Criteria

   186.311 

   The applicant:

   (a)  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; and

   (b)  made a combined application with the primary applicant.

5. Further, the delegate in refusing to grant the application referred to r.1.12 of Schedule 2 of the Regulations and specifically r.1.2(1)(e)(ii) and r.1.2(1)(e)(iii), as provided hereunder:

   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.

6. In the present case, the applicant is seeking a visa in the Temporary Residence Transition stream, as a dependant of the primary visa holder.

7. The delegate refused to grant the visa because the applicant did not meet cl.186.311 of Schedule 2 to the Regulations and specifically the applicant did not meet r.1.12(1)(e)(ii) and r.1.12(1)(e)(iii).

8. The applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Estelle Shipton (the primary visa holder and sibling to the applicant) and Mr Spencer Young (the husband of the primary visa holder).

9. The applicant was not represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is dependent on the primary visa holder.

12. The applicant is a 25 year old from England, whose 30 year sibling is a holder of a 186 EN Permanent visa and has now been granted permanent residency. The applicant arrived in Australia on a Working Holiday (Class TZ) visa on 3 September 2014 and has not returned to the UK since arrival.

13. The applicant gave evidence that she has resided with the primary visa holder, which was initially in Fitzroy, then Highett and subsequently Malvern East.

14. The applicant gave evidence that she is not married and has a boyfriend who is an Australian citizen and lives in Elwood.

15. The applicant gave evidence that her abode is both in Malvern East with the primary visa holder and in Elwood with her boyfriend. Further, evidence was provided that the applicant and primary visa holder share the cooking and due to the hours of work undertaken by the primary visa holder, the applicant prepared meals for the family, including weekends.

16. The Tribunal was also presented with evidence that all decisions are made as a family, involving the applicant, primary visa holder and her husband.

17. The applicant is employed by GE Health in Melbourne and works on a full-time basis; however she is still dependent to a degree on the financial support of the primary visa holder. In this regard, the primary visa holder is married to a resident of New Zealand and they have a one year old daughter, whom is cared for by both the parents and the applicant, as an inextricable part of the extended family living.

18. The applicant, the primary visa holder and her husband, all gave evidence that attested to the fact that the applicant has been dependent upon the primary visa holder since a young age when their parents separated and more particularly, the primary visa holder has provided both nurturing and financial support to the applicant throughout her life, including periods when their father has been incapacitated through health issues. In this regard, the primary visa holder gave evidence that the applicant, unlike herself, has not had the opportunities that she had in gaining a formal tertiary education, which resulted in a science based degree. In this regard, her studies were supported by grants and scholarships given the family financial status.

19. The applicant and witnesses, all gave evidence, as to the inextricable connection between the sisters and the importance of maintaining the family unit; to the extent that the primary visa holder would have to change her own residency in Australia should the applicant not be granted a visa.

20. The applicant provided evidence that the primary visa holder provides both emotional and financial support and that the siblings are inseparable. In this regard, the applicant also has a key role in the support and nurturing of primary visa holder’s daughter, as part of the family unit and it is usual for the applicant to reside at the same residence as the primary visa holder to give effect to this role.

    Residence or Place of Abode

21. The concept of ‘residence’ has received considerable attention in common law, usually in the context of taxation or social security legislation. It was considered by the High Court in the taxation case of Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (Koitaki’s case) [1941] HCA 13; (1941) 64 CLR 241 at 249. Justice Williams, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation regarding residence:

    “The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usualabode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place ofabode.”

22. In Hafza v Director General of Social Security [1985] FCA 164, Justice Wilcox held that the concept of residence includes two elements: ‘physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever’.

23. The evidence provided by the applicant and the witnesses accords with the decision of Justice Wilcox, in that the applicant considers the primary visa holder’s place of residence as home; at least for the time being and not for ever. As such, visitations away from the primary visa holder’s place of residence cannot be construed, in the Tribunal’s view, as a mitigation of a ‘physical presence in a particular place and the intention to treat that place as home’.

    Discretion

24. In relation to the consideration of the relevantdiscretion regarding the merits review, although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the Tribunal observes that the Courts have generally held that the relevant facts of an individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the relevant decision-maker to establish the relevant facts.

25. As a result, a decision-maker is not required to make an applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1] The Tribunal notes that there are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of thediscretion.

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 16970].

    Conclusion

26. The Tribunal found the applicant and the witnesses to be both credible and open in the explanation of the circumstances between the applicant and the primary visa holder and the Tribunal is satisfied that the applicant is both financially and emotionally dependent upon the primary visa holder.

27. The Tribunal in consideration of this case can see the importance of the emotional and psychological wellbeing of the applicant and the family unit, together with the need to ensure the family unit is not disturbed, given the difficult background experienced by both these young women, who have secured stability in their lives, in the Australian context. As such, the Tribunal is satisfied that since arriving in Australia, the applicant has been usually resident in the family head’s household and is dependent on the primary visa holder, as the family head.

28. Accordingly, the Tribunal is satisfied that cl.186.311 is met.

29. Given these findings, the appropriate course is to remit the visa application to the Minister for consideration.

    DECISION

30. The Tribunal remits the application for a secondary Temporary Residence Transition (subclass 186) visa, with the direction that the applicant meets the following criteria for a secondary Temporary Residence Transition (subclass 186):

    ·cl.186.311 of Schedule 2 to the Regulations;

    Warren Stooke AM
    Member