Singh (Migration)

[2024] AATA 862

Singh (Migration) [2024] AATA 862 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Charan Singh

VISA APPLICANT:  Mr Amiteshwar Singh

CASE NUMBER:  2005908

HOME AFFAIRS REFERENCE(S):          OSF2014/046552

MEMBER:Kira Raif

DATE:10 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the applicant meets the following criteria for a 116 (Carer) visa:

· 116.321 of Schedule 2 to the Migration Regulations

Statement made on 10 April 2024 at 1:54pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – member of the family unit – dependent child – wholly or substantially reliant – visa applicant turned 26 after initial assessment – brief employment during studies – mental health family support – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 116.321; rr 1.03, 1.05, 1.12

CASES

Huynh v MIMA [2006] FCAFC 122

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 applicant a Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a national of India, born in June 1993. He applied for the visa on 30 January 2014. The delegate refused to grant the visa on 12 March 2020 on the basis that the visa applicant did not satisfy the requirements of cl 116.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) as the delegate was not satisfied the visa applicant was a dependent child of the primary visa applicant. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. Clause 116.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa application at the time of decision.

5. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

6. Regulation 1.12(1) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a dependent child of the family head or of their spouse or de facto partner;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or

   ·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.

7. In this instance, the applicant is claiming to be the dependent child of the primary visa applicant, who is his mother. There is no suggestion that he meets alternative definitions of the term ‘member of the family unit’.

8. A person is the ‘dependent child of the family head or their spouse or de facto partner’ if they are the child or step-child of the family head or their spouse or de facto partner and meet the requisite dependency requirements. The term ‘child of a person’ is defined in s 5CA of the Act and the term ‘step-child’ is defined in reg 1.03 of the Regulations.

9. ‘Dependent child’ is defined in reg 1.03 of the Regulations, which requires that the child or step-child must not be engaged, married or in a de facto relationship, and have not turned 18 or if they have turned 18 the child must be ‘dependent’ within the meaning of reg 1.05A, or be incapacitated for work due to loss of bodily or mental functions.

10. When considering whether the applicant is dependent on the family head or their spouse or de facto partner as required by reg 1.05A, the Tribunal must be satisfied that they are ‘wholly or substantially’ reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is reliant for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

    Primary decision

12. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant made the application as a secondary applicant and a member of the family unit of the primary visa applicant, Ms Manbir Kaur. He provided with the application a birth certificate indicating he is the son of Ms Kaur.

13. The primary decision record indicates that the visa applicant was previously assessed as meeting the visa criteria and the application was placed in a queue in November 2016. As the visa applicant had turned 26, the delegate requested further information to establish the visa applicant’s dependence on his mother. In response, the visa applicant provided evidence of his study in Australia and evidence concerning his ongoing dependence. The visa applicant stated that he came to Australia in 2015 to continue his study. He completed an English course at UTS in July 2015 and a Master of IT degree in July 2017. In 2018 he undertook a Professional Year program and presented a Certificate of Attainment from the Australian Computer Society issued in November 2018.

14. The visa applicant claimed that during his study in Australia his parents paid his fees and visa expenses. The visa applicant stated that he was allowed to work only 20 hours a week and he did casual work to support himself financially but he did not have financial independence. The visa applicant stated that he lived at his uncle’s home for two years, receiving accommodation and food and departed Australia in November 2019. The visa applicant stated that he was unemployed, helping his father in his shop, that he was living with his parents and reliant on them for food, shelter and clothing.

15. The delegate noted that the applicant must establish dependence on his mother or her partner for a substantial period before the time of decision, which the delegate considered to be from mid-March 2019. The delegate noted that in that period, the visa applicant had spent 7.5 months in Australia as a holder of a Subclass 485 visa with work rights. The delegate noted that in his Form 80, the applicant stated that he had been employed in Australia from January 2018 to March 2019 by an IT support company as a Junior Network Engineer and also as a removalist / driver from April 2019 to October 2019. The delegate noted that while the applicant claimed his work was on a casual basis, he did not provide evidence of his employment or salary. The delegate also noted that there was no evidence of the visa applicant’s parents providing him any financial support between March 2019 and his departure from Australia in November 2019. The delegate was not satisfied the visa applicant was reliant on his parents for financial support for 7.5 out of 12 months prior to the time of decision.

16. The delegate noted the visa applicant’s claim that he could not find work upon return to India and that he is reliant on his parents. The delegate noted that the applicant had not provided any evidence about any payment he may receive from his father in return for helping his father in the shop.

    Evidence before the Tribunal

17. The review applicant provided to the Tribunal additional written material. This includes a bank statement from HDFC Bank in Punjab in the name of Amiteshwar Singh, from May to July 2020 showing several transactions. There is an affidavit from the visa applicant and supporting documents verifying his address. The review applicant provided a statement from Pardeep Singh who states that the visa applicant is not receiving any wages or salary from the store and assists as a family member.

18. The review applicant provided a statement addressing the delegate’s findings. With respect to the visa applicant’s dependency, the review applicant states that the visa applicant completed study in Australia between 2015 and 2019 and departed Australia on 1 November 2019. The review applicant states that he moved back to his parents’ house in November 2019 and since his arrival, he was wholly reliant on his parents for financial support to meet his basic needs. He has been unsuccessful in finding a job since returning to India and has no personal income. The review applicant submits that the visa applicant’s permanent address is at his parents’ home. The visa applicant also helps his father in the automotive paint shop but he has no experience in that industry and only helps with ‘small sort of works’ and he does not receive any wages from his father’s shop. The review applicant submits that the visa applicant receives Rs 20,000 from his father and Rs 1,000 a week as cash for pocket expenses while his parents support him with food, clothing and shelter. The review applicant states that the visa applicant’s parents were granted the permanent visa in 2020 but are concerned about the visa applicant’s well-being.

19. In his submission to the Tribunal of 2 April 2024 the review applicant provided a statement  from the visa applicant’s parents. They state that they departed India with their son while the visa applicant was not granted the visa and remained in India. It is stated that since his return from Australia, the visa applicant encountered significant difficulties as he had to navigate living independently and had been grappling with depression, rendering him unable to sustain himself financially and emotionally. He is under psychiatric care. Mr Singh and Ms Kaur state that they have been visiting India since 2021 to support the visa applicant but there had been no sign of improvement and this is causing strain and concern to his parents. The visa applicant’s parents Mr Singh and Ms Kaur had provided details of their trips to India and evidence of travel.

20. There is also before the Tribunal a report by Dr Rahul Saini who states that the applicant has been suffering from major depression disorder and severe anxiety since 2019 after his return from Australia with separation from family being the major precipitating event. He has been prescribed medication but has shown no significant improvement.

21. The review applicant provided a written statement to the Tribunal referring to the visa applicant’s mental health. The review applicant states that the visa applicant had been significantly impacted by his condition, is struggling with depression and anxiety and was not meeting his daily needs after his family migrated to Australia in 2021, which had a severe impact on his emotional well-being, ability to function independently and his quality of life. The review applicant states that the visa applicant requires assistance and care from his parents and without this support, he is unlikely to be able to manage himself and access medical treatment. The review applicant refers to the Migration Regulations and r. 1.05 which (he claims) refers to financial, psychological or physical support.

22. In oral evidence the review applicant stated that before coming to Australia the visa applicant was living with his parents and undertaking full-time study in IT. After completing his study, the visa applicant came to Australia and lived with him. The review applicant stated that  initially the visa applicant did not work in Australia and later on he did some part-time work. He returned to India in November 2019 and his parents migrated to Australia in 2021 but they regularly visit India. They first returned to India in October 2021 for about three months. The visa applicant’s  father then made a trip between September and November 2023 and the parents travelled again in March 2024 and are yet to return to Australia.

23. The review applicant states that the family maintain their family home and that is the home where the visa applicant lives on his own. The review applicant states that the visa applicant’s mother does not work in Australia and his father works part-time while his brother works full-time so the family has income in Australia. They also continue to manage their shop in India and had hired a manager, the income from the shop supports the visa applicant and other employees.

24. The review applicant states that when the visa applicant was in Australia, he missed the deadline for his visa and was ‘shocked’ to find that his visa had expired and he could not apply for another visa. The review applicant states that it was hard for the visa applicant to find a job as he lives in a remote area and maybe due to his depression. The visa applicant helped with his father’s shop but it was hard for him to get the skills in that field and he is not involved in the shop now. He has tried to get a job but could not find any. The review applicant suggested that the visa applicant is depressed because of the separation from his family and his inability to find a job but if he was to come to Australia, he hopes the visa applicant will be able to study and work.

    Is the visa applicant a dependent child and a member of the family unit of the primary applicant?

25. The Tribunal has considered the totality of evidence before it. Having regard to the visa applicant’s birth certificate, the Tribunal finds that the visa applicant is a child of the primary visa applicant. The Tribunal also finds that the visa applicant was over the age of 18 when the application was made.

26. At the time when the application was made, the evidence is that the visa applicant lived with his parents and was reliant on his parents and was a dependent child. It appears that he was assessed as being a dependent child and a member of the family unit of the primary visa applicant as his application was queued, with the application of his family members. The Tribunal must consider whether he is a dependent child at the time of this decision.

27. When the primary decision was made, the applicant had recently returned to India after studying and working in Australia and the delegate was not satisfied the visa applicant was dependent on his parents during the period of his residence in Australia. However, considerable time has now passed since the visa applicant’s return from Australia. Notably, the visa applicant’s parents migrated to Australia in 2020 and there is nothing to suggest that the visa applicant continued to perform paid work in his father’s business since that time. Indeed, there is no evidence that he engaged in any type of employment since that time. The evidence before the Tribunal is that he has not been able to work due to his depression or because has not been able to find employment.

28. The Tribunal agrees with the delegate’s finding that during the period of his residence in Australia the visa applicant was employed and not reliant on his parents for food, shelter and clothing. However, given the passage of time, his circumstances now are quite different. The visa applicant has been living in the family home since his return to India in 2019. There is no evidence to indicate that he is employed on either a full-time or even regular basis and while there is evidence that  in the past he had worked in his father’s business, there is little evidence as to what his income would have been. There is no evidence of such employment or income at present.

29. The review applicant’s evidence to the Tribunal is that the visa applicant’s parents provide him with money when they travel to India and they have made several trips to India since their migration to Australia. The visa applicant’s and the review applicant’s evidence is that the visa applicant has no other source of income and that he has been unable to obtain gainful employment in India. There is little to contradict these claims. Essentially, there is no evidence before the Tribunal that would suggest that in the past 12 months and at present, the visa applicant had any income or that he had been relying on support of anyone other than his parents to meet his basic needs for food, shelter and clothing.

30. On balance, the Tribunal is satisfied that at the time of this decision and for a substantial period immediately before the present time, the visa applicant is and was wholly or substantially reliant on his parents for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is satisfied that the visa applicant’s reliance on his parents is greater than his reliance on any other person or source of support. The Tribunal is satisfied that the visa applicant continues to be a dependent child and a member of the family unit of the primary visa applicant, his mother. The Tribunal finds that he meets cl. 116.321.

    DECISION

31. The Tribunal remits the application for a Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the applicant meets the following criteria for a 116 (Carer) visa:

    ·cl 116.321 of Schedule 2 to the Migration Regulations.

    Kira Raif
    Senior Member