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

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).
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.
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
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.
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.
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…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2024] AATA 862
Case: [2024] AATA 862
Decision Date: 10 April 2024

CaseChat Overview and Summary

This case concerned an appeal by Mr Singh against a decision by the Administrative Appeals Tribunal (AAT) regarding his application for a Subclass 116 (Carer) visa. Mr Singh applied as a secondary applicant and member of the family unit of his mother, Ms Kaur. The central issue was whether Mr Singh qualified as a "dependent child" for the purposes of the visa, particularly given he had turned 26 after the initial assessment of his application.

The AAT was required to determine whether Mr Singh was wholly or substantially reliant on his mother for financial support, and whether he met the definition of a "dependent child" under the relevant migration regulations. This involved assessing the evidence presented regarding his financial situation, employment history, and his parents' support, especially in the period leading up to the delegate's decision and his departure from Australia.

The court applied the principle that dependency does not require absolute necessity but rather a factual reliance on another person for support. The delegate had found that Mr Singh had not established sufficient dependence, noting his period of study and work rights in Australia, and a lack of evidence of financial support from his parents during a critical period. While Mr Singh provided further evidence to the Tribunal, including bank statements, affidavits, and medical reports detailing his struggles with depression and anxiety, the delegate remained unconvinced that he was substantially reliant on his parents for the required period. The Tribunal ultimately remitted the decision for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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. 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.

Decision

Reasons for decision

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 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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