Suguturaga (Migration)

[2017] AATA 90

Suguturaga (Migration) [2017] AATA 90 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lia Senibuadromo Suguturaga

CASE NUMBER:  1607235

DIBP REFERENCE(S):  CLF2015/74792

MEMBER:Michael Cooke

DATE:9 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.212 of Schedule 2 to the Regulations

·cl.802.221 of Schedule 2 to the Regulations

Statement made on 09 January 2017 at 4:53pm

CATCHWORDS

Migration – Child (Residence)(Class BT) visa – Subclass 802 – Probative evidence submitted – Wholly or substantially reliant for a reasonable period – Worked part time while studying – Predominant source of support - Substantially reliant for basic needs

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 1.03, r 1.05A, cl 802.212, cl 802.212(1)(a), cl 802.212(1)(b),(2), cl 802.221, cl 802.221(1), (2), cl 802.221(2)(a)

CASES

Huynh v MIMA

[2006] FCAFC 122]

Fusi v MIAC
Zeng v MIMIA

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 2 May 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 2 December 2015. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).]

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.212 and 802.221.

4. The delegate refused to grant the visa on the basis that cl.802.212 was not met because the applicant did not evidence that she was the daughter of her sponsoring mother.

5. The applicant appeared before the Tribunal on 19 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the ‘dependent child’ of her mother pursuant to reg.1.03 and cl.802.212 and whether she continues to be so dependent at time of decision.

8. At the hearing the Tribunal began by seeking to establish that the applicant was a child of her sponsor – her mother. The family had failed to submit probative evidence such as a birth certificate to the delegate. After questioning the parties the applicant produced a birth certificate from her documents. The Tribunal confirmed it was an authentic Fiji Islands birth certificate and took a copy. Thus she satisfied one of the outstanding contentious issues in the case – whether she was the child of her mother who has satisfied the delegate she was an Australian permanent resident.

9. The Tribunal then questioned both the applicant and her mother about issues related to the applicant’s dependency on her mother- both wholly or substantially. The Tribunal explored the applicant’s life history. She informed that she had previously been living with her divorced father and 5 siblings in Fiji. She came to Australia on a Tourist visa in and stayed with her mother. Movement records indicate this was in May 2014. She did not work or study until May 2015. She began studying a Certificate III in Aged Care in May 2015 and finished it but she did not like it as career. She began to work at Hungry Jacks in July 2015 part time. She works 3 nights a week and makes $300 a week. She intends to begin studying again full time in January 2016 doing Child Care at a private college. She would study full time for 6 months.

10. The applicant indicated her mother supplied her food and shelter. Sometimes her Mum bought her clothes and sometimes she did. Usually she gave her mother her all wages at other times she gave her nothing. Her mother indicated her daughter’s income mostly went on the rent. Her 2 year old sister also lived with them. Her mother worked full time in aged care. The applicant cared for her sister during the day and then did night crew work. She regularly worked three nights - sometimes 4 nights - encompassing 5 hours each night from 6 to 11pm.

11. She agreed she did not earn enough money to afford to live by herself. The family rent was $365 per week - her mother informed. She earned $200-300 per week. She kept around $50 for pocket money. She would continue to work at night when she went back to college in the city. Her mother advised that she bought all the food. When he daughter gave her the money she sorted it all out and tried to save some for her study course in 2017. The course would be 6 months full time. The applicant advised she began work in July 2015. The Tribunal noted from the decision record of the delegate (on the Tribunal file) that she applied for the visa (the subject of this review) on 2 December 2015 and informed her that the test for dependency also encompassed a 12 month period counting back from the time of application.

12. The applicant informed that when she arrived in Australia she did not do anything as she had to make new friends and learn her way around. She had never been to Australia before. She socialised at the Church and cared for her baby sister. She sometimes went to Parramatta. She was a school student then when she arrived and she did nothing for 6 months and from May 2015 to July 2015 she did her Certificate 3. She did not like aged care so she cared for her sister during the day and began to work at Hungry Jacks at night in July 2015.

13. The Tribunal asked her mother how the applicant depended on her. She said the applicant worked part time but with she had to pay rent and $200 a week for food for the family. She bought some clothes for her sometimes but at other times she bought her own. They were struggling a bit and there was not really much money for clothes. The sponsor was asked how much she spent on the applicant per week. She said she spent $100 a week on the applicant maintaining her. She asked for extra money when she went to Church fellowship. The applicant shared a room with her sister. It was a two bedroom unit. She paid $365 per week. Food was $200 per week for all of them. She would spend $25 per week on the applicant’s clothing.

    Dependent child criteria

14. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

    Dependent child

15. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(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.

16. 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].]

17. The applicant was 18 years old at time of application. She informed she finished school in Fiji at age 17. She has never been engaged or partnered.

    Applicant under 25 or incapacitated for work

18. At the time of application, the applicant must not have turned 25. However, 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 total or partial loss of bodily or mental functions: cl.802.212(1)(b), (2).

19. Accordingly, cl.802.212(1)(b) is met at the time of application, and is not required to be met at the time of decision. The applicant is self-evidently not incapacitated for work due to the total or partial loss of bodily or mental functions so clause (2) does not apply.

    Conclusion about dependent child criteria

20. The term ‘substantially reliant’ involves a concept of predominance and requires the Tribunal to ask whether the applicant was predominantly or ‘primarily, essentially or in the main’ dependent on the other person.  In Fusi v MIAC,  the Court found that it was open for the Tribunal to explore how the visa applicant received financial support and to consider any other sources of income on which she was dependent, in this case, funds from other family members, when assessing whether she was ‘wholly or substantially reliant’.  Although the Court’s consideration relates to the definition of ‘dependent’ as it stood prior to November 1999, the reasoning would appear to be equally applicable to the current definition in so far as it considers the terms ‘wholly or substantially reliant’.

21. Importantly, in Huynh v MIMIA, the Full Federal Court found that the proper construction of ‘dependent’ under the current definition in r.1.05A does not carry any implication of the notion of necessity or lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.

22. In Zeng v MIMIA,  a decision involving an Aged Dependent Relative visa, Riethmuller FM concluded that a proper determination of the question of ‘substantial dependence’ will require considerations of at least the following factors:

    ·the nature of the person’s needs (within the meaning of the regulations);

    ·the extent to which those needs are being met by the person from their own resources;

    ·the extent to which the needs are being met by the nominator; and

    ·whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.

23. As indicated above, courts have held that the term ‘substantially’ should be read as meaning ’predominantly’ or ‘primarily, essentially or in the main’. There have been a number of approaches in evaluating ‘basic needs’. One approach places emphasis on the fact that the basic needs for which financial support must be provided are described as ‘food, shelter and clothing’ which suggests a cumulative requirement of all three needs.

24. It is evident from the oral evidence that the applicant is a young woman of Fijian background. She is living as a single woman with her mother as required by Fijian social mores. It appears from her oral evidence that the applicant is a dutiful daughter and obedient in the cultural sense required of Fijian children. She shoulders the responsibilities of family which are culturally her foremost consideration. She has sought and is seeking to educate herself to allow her to have a career. It is evident that she works a part time job that provides basically some monetary support to her family.

25. However, when consideration of ‘basic needs’ is contemplated it can be seen from her residential arrangements that she relies on her mother, for her shelter requirements. She does contribute to the rent, however, so the reliance on her job is a contributory factor in her the level of reliance on her mother within the requirements of reg.1.05A. The Tribunal finds that she does not earn sufficient in her part time job to live by herself in contemporary Sydney from a rental perspective. Her income would scarcely allow her to post a bond and pay rent thus she relies substantially on her mother for shelter. Importantly, it would not be considered culturally appropriate for a young woman of her age in Fijian society to be living away from home. Thus from the Zeng perspective, her mother has an overriding obligation to meet those needs having regard to the relationship with the applicant as her mother.

26. The applicant’s mother has indicated that the applicant also relies on her for her basic need for food which she provides. She claims that she spends at least $200 per week on food for the family (which includes a two year old child). However, the Tribunal notes that by paying her wages to her mother she makes a monetary contribution to that basic need. Thus her contribution ensures she is substantially reliant on her mother for the basic need for food.

27. Her mother informs (and the applicant has concurred) that she and her mother share the expense of clothing. Therefore, her reliance, again, on her mother for the basic need of clothing is substantial rather than whole. Her mother has advanced a figure of $25 per week for clothing.

28. Taking the period of time since her arrival from Fiji in May 2014 as ‘a reasonable period’ of dependency since time of application the evidence discloses that prior to the date of application the applicant was wholly or substantially reliant on her mother for her basic needs as she either did not work or worked part time and studied full time or not studied at all. She contributed nothing to the family kitty (up till July 2015) and subsequently gave $300 dollars per week to her mother for her basic needs up till time of application (13 August 2015) and thereafter until time of this decision.

29. The Tribunal is of a view that in dependency cases the approach that best reflects all parts of the regulation is an evaluation based on an approach which requires that financial support be provided in relation to all three basic needs. Furthermore, overall, the person on whom the applicant is reliant (wholly or substantially) can best be described as the predominant source of support, even if only providing a small amount in relation to one of the basic needs. To require the person to be predominantly reliant upon another person in respect of each of the three basic needs would appear to place the bar too high and is not necessary to give effect to all parts of the definition.

30. The fact that the applicant has worked part time while studying and will do so in the future is considered in policy to be acceptable. In the present case the applicant has continued to work part time - when studying and not studying. Her financial contribution to her mother is substantial but it is the judgement of the Tribunal (for the reasons stated above) that “overall, the person on whom the applicant is reliant wholly or substantially (her mother) can be described as the predominant source of support, even if only providing a small amount in relation to one of the basic needs”. The applicant’s mother has minimum expenses of $690 per week for basic needs and the applicant’s contribution is $300 in relation to all three basic needs from time of application until decision. The Tribunal finds within the whole gamut of the case that the applicant is ‘substantially’ reliant on her mother for her basic needs in the sense of ’predominantly’.

31. The Tribunal finds her reliance on her mother is greater than any reliance by her on any other person, or source of support (her Hungry Jacks income), for financial support to meet the basic needs of food, clothing and shelter. She was wholly or substantially reliant on her mother for a reasonable period prior to time of application.

32. Therefore, the applicant meets the test for dependence in reg.1.05A.

33. For the reasons above, the criteria in cl.802.212 and cl.802.221(1) are met.

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

    DECISION

35. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.212 of Schedule 2 to the Regulations

    ·cl.802.221 of Schedule 2 to the Regulations.

    Michael Cooke
    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 who is engaged to be married or has a spouse or de facto partner), being a 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 bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    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.

    …