ZAFRIN (Migration)

[2024] AATA 1089

ZAFRIN (Migration) [2024] AATA 1089 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fahmida ZAFRIN

VISA APPLICANT:  Miss Nabida JAFRIN

REPRESENTATIVE:  Mr Md Abdul Amin (MARN: 0106096)

CASE NUMBER:  2320853

HOME AFFAIRS REFERENCE(S):          BCC2017/1358880

MEMBER:Michael Cooke

DATE:27 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·cl 143.231 of Schedule 2 to the Regulations

Statement made on 27 March 2024 at 2:45pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – member of the family unit – dependent child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cls 143.231, 143.321

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 25 October 2023 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 6 April 2017. The delegate refused to grant the visa on the basis that the applicant did not meet cl.143.321 at time of decision.

3. The review applicant was represented in relation to the review.

4. The applicant has subsequently (on review) submitted significant evidence that she was and has been for a substantial period, wholly or substantially reliant on the primary applicant (her father) for financial support to meet her basic needs of food, clothing and shelter and that her reliance on that person is greater than any reliance on any other person, or source of support. This includes evidence of ongoing university studies and payments to the visa applicant in Bangladesh for her ‘basic needs’ as outlined in a personal submission by the applicant’s father and mother.

5. The applicant and family members attended the hearing in person and the applicant by video from Bangladesh. The applicant gave evidence along with her mother and uncle. The Tribunal was assisted by a Bengali (Bangla) language interpreter.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is dependent on the primary applicant at time of this decision.

7. The applicant - Ms Nabida JAFRIN, (DOB 23/07/2000) - applied for a Subclass 143 Contributory Parent (migrant)(CA 143) visa on the basis she is a claimed ‘member of the family unit’ (MOFU) of the primary applicant, Mohammad  ZAFARULLAH, (DOB 02/02/1951).

Criteria to be satisfied at time of decision:

143.321

The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 143 visa.

Section 5 Interpretation

(1) In this Act, unless the contrary intention appears:

member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.

Reg 1.03 Definitions

1.03 In these Regulations, unless the contrary intention appears:

member of the family unit has the meaning set out in regulation 1.12.

‘dependent child’

means the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married), 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.

‘dependent’

has the meaning given by regulation 1.05A.

Reg 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.

(2) A person (the first person) is dependent on another person for the purposes of an application for:

(d) a protection visa; or

(ea) a Refugee and Humanitarian (Class XB) visa; or

(i) a Temporary Safe Haven (Class UJ) visa;

if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

Reg 1.12 Member of the family unit

1.12 (2) A person is a member of the family unit of another person (the family head) if the person:

(a) is a spouse or de facto partner of the family head; or

(b) is a child or stepchild of the family head or of a spouse or de facto partner of the family head (other than a child or stepchild who is engaged to be married or has a spouse or de facto partner) and:

(i) has not turned 18; or

(ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

(c) is a dependent child of a person who meets the conditions in paragraph (b).

The Hearing

8. The Tribunal noted that the applicant’s family had tendered additional information to support her dependency claim. The applicant’s mother elaborated on the applicant’s dependency for the edification of the Tribunal. She gave a potted outline of her daughter’s student history. She indicated she was an active enrolled student - yet to complete her degree course. She further addressed the applicant’s claimed dependency on her father. She informed that due to the security situation for single females in Bangladesh - the applicant lived at home. Her family was very concerned that if they all emigrated, she would be left alone in Bangladesh. She did not work. She remained in the family home when not studying. Her father remained in Bangladesh (despite approval to relocate to Australia) to ensure her personal safety and maintenance. She was wholly reliant on her father for her ‘basic needs’.

Findings

9. The Tribunal finds from the totality of the evidence before it that at the time when it is necessary to establish whether the first person (the applicant) is ‘dependent’ on the ‘other person’ (her father):

(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.

10. Thus, the Tribunal finds that the applicant meets the requirements of ‘dependent’ pursuant to reg 1.05A.

11. The Tribunal further finds from the evidence before it that at date of application the applicant was under 18 years of age. She has turned 18, but has not turned 23, at time of decision and is ‘dependent’ on the ‘family head’. The Tribunal finds that she is, therefore, a ‘member of the family unit’ of the ‘family head’ pursuant to reg 1.12(2)(b)(ii).

12. The Tribunal finds on review that the applicant meets the requirements of cl 143.231 of Schedule 2 to the Regulations.

DECISION

13. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent)

• cl 143.231 of Schedule 2 to the Regulations

Michael Cooke
Senior Member