Solaqa (Migration)

[2020] AATA 6063

Solaqa (Migration) [2020] AATA 6063 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jabraeel Solaqa

VISA APPLICANT:  Ms Hala Jubrail Hormiz Kaka

CASE NUMBER:  1931294

HOME AFFAIRS REFERENCE(S):          2019000495

MEMBER:Peter Vlahos

DATE:8 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221of Schedule 2 to the Regulations.

This Statement was made on 8 December 2020 at 9.30am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – applicant is now over the age of 18 years – blindness – medical evidence provided ­– visa applicant is incapacitated or ‘dependent’ on others –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03; Schedule 2, cls 101.213,101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 on 13 October 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 March 2019. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.21 and cl.101.22.

4. The delegate refused to grant the visa on the basis that cl.101.213(2) of the Migration Regulations 1994 was not met.

5. The review applicant appeared before the Tribunal on 19 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether Ms Hala Jubrail Hormiz Kaka is a ‘dependent child of the sponsor, her father, Mr Jabraeel H. Solaqa who is an Australian citizen.

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Dependent child

10. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

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 relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

12. Ms Hala Jubrail Hormiz Kaka is a forty-eight-year-old Iraqi female which is current residing in Iraq. The Tribunal was told by her father in evidence, that she is totally blind and until recently was living with and cared for by his niece. This care which is provided until recently is further assisted and enhanced by the Ms Kaka’s father. The Tribunal was told by Mr Solaqa that both he and his wife have been providing financial assistance to Ms Kaka for a considerable period time at varying amounts (at times – AUD$300, $500 and $600). This financial assistance the Tribunal was told was provided to assist Ms Kaka with day-to-day needs and necessities. Mr Solaqa told the Tribunal that in recent times he has become concerned for his daughter’s welfare and well-being because his niece has her own family needing her attention and Ms Kaka with her specific needs because of her disability is having difficulties getting the attention she needs.

13. The Tribunal was told, these concerns have further increased since Ms Kaka’s brother also left Iraq in recent times to work in Australia hence, she had lost he last close family member (in Iraq) who was also a support to her.

14. Mr Solaqa told the Tribunal that his entire family are now resident in Australia and his daughter, Ms Kaka is the only person of the immediate family that remains in Iraq. What is most disturbing to Mr Solaqa is that his daughter is totally dependent on others for assistance. That assistance is now not possible in Iraq with his niece. He believes that if his daughter was able to come to Australia, she would receive total and complete care from Mr Solaqa’s family which is extensive and able to provide the day-to-day care his daughter needs without any dependence on any government assistance.

15. The Tribunal also noted the medical report dated February 2019 and the Ophthalmologist’s report dated 10 November 2019 which report that her disability has not changed.

16. The Tribunal also took note of the applicant’s Solicitor’s written submission. The submission stated that the applicant (Ms Kaka) was incapacitated for work and cited the medical evidence provided in support. The applicant’s solicitor then drew the Tribunal’s attention to the delegate’s decision, in particular, to the delegate’s conclusions that the applicant did not meet the requirements of regulation 101.213(2) of the Regulations.

17. The applicant’s Solicitor also referred to the fact that the delegate had refused the application in question because the applicant had provided a letter with her application stating that she had been offered employment when she arrived in Australia. The applicant’s solicitor explained that the letter-in-question was prepared by an unregistered migration agent which had provided advice and provided the letter with the recommendation that a ‘job-offer’ would assist the applicant’s visa process being expedited quickly. As matters developed – the opposite was achieved. As the applicant’s solicitor explains in her submission:

    The job offer is for a position of kitchenhand in a reception and convention centre in Somerton, Melbourne. It is impossible for the visa applicant to work as a kitchenhand. Due to her blindness, she cannot work in any kitchen, let alone a commercial kitchen.

18. The solicitor then concludes as follows:

    As noted above and in the supporting documents, the visa applicant’s condition means that she has no vision in either eye. Due to her condition, the visa applicant has never had a job. She has no qualifications, skills or experience relevant to employment and her ophthalmologist has specifically stated that she cannot work due to her medical condition…

    When assessing this application, the Delegate placed undue emphasis on the abovementioned job offer. The Delegate ought to have considered the other evidence that was provided, in particular, the supporting materials from medical professionals.

19. Indeed, the Tribunal raised this issue with the applicant’s father and was told that the unregistered migration agent in question had ‘advised’ him that placing a ‘job-offer’ together with application would enable Ms Kaka to arrive in Australia sooner than later. The Tribunal accepts that both Mr Solaqa and his blind daughter fell victims to negligent advice provided to them by an unregistered migration agent. The Tribunal further accepts on the evidence provided by medical professionals that Ms Kaka is not able in any manner to carry out any meaningful employment and because of her blindness – totally disabled and dependent on others – family or immediate family for support on a daily basis. Therefore the Tribunal concludes and finds that the applicant (Ms Kaka) is over 18 years-of-age at the time of the application and (according to the medical evidence submitted) is incapacitated or ‘dependent’ (wholly or substantially reliant for basic needs) on others.

20. Accordingly, cl.101.211(1)(a) is met at the time of application and continues to be met at the time of decision.

    Criteria for applicants over 18

21. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Relationship status and history

22. At the time of application, the visa applicant must not be engaged to be married and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

23. From the evidence submitted to the Department and the Tribunal the applicant is not married (see Certificate of Singleness) and nor has had a spouse or de facto partner

24. Accordingly, cl.101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

25. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

26. For the reasons as discussed in paragraphs [17]-[19] above, the Tribunal is satisfied that the applicant has not at the time of the application or at the time of decision engaged in any full-time work.

27. Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

28. At the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c).

29. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2).

30. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

31. The Tribunal is satisfied on the evidence before it that the applicant is incapacitated for work because of loss of bodily or mental functions and has not undertaken any studies whatsoever.

32. Accordingly, cl.101.213(1)(c) is met. It and continues to be met at the time of decision.

33. For the reasons above, cl.101.213 is met at the time of application.

34. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

35. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

36. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.221 of Schedule 2 to the Regulations; and

    ·cl.101.213 of Schedule 2 to the Regulations.

    Peter Vlahos
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    1.05A Dependent

    (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.

    …