1410827 (Migration)

[2015] AATA 3078

1410827 (Migration) [2015] AATA 3078 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Filimone Tuuta Vailanu

CASE NUMBER:  1410827

DIBP REFERENCE(S):  CLF2008/117614

MEMBER:Kira Raif

DATE:14 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 14 July 2015 at 1:24pm

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 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Tonga, born in August 1987. He was included in the application for the Aged Parent Class BP visa made by his biological grandmother Ms Kalolaine Vailanu (‘the primary visa applicant’), which was made on 7 August 2008. The delegate refused to grant the visa on 29 May 2014 on the basis that cl.804.311 was not met because the delegate was not satisfied the applicant was a member of a family unit of the primary visa applicant. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 14 July 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. The issue before the Tribunal is whether the applicant is a member of the family unit of the primary visa applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. The visa application was made on the basis that the applicant is the member of the family unit of Ms Kalolaine Vailanu. Clause 804.311 relevantly requires that at the time of the application, the applicant must be a member of the family unit of another person who has applied for the Class BP visa and appears to satisfy the criteria in Subdivision 804.21. At the time of decision, cl. 804.321 requires the applicant to be a member of the family unit of a person who is the holder of a subclass 804 visa.

6. Regulation 1.03 provides member of the family unit has the meaning set out in r. 1.12. The relevant definition is that contained in cl. 1.12(1). The applicant does not claim to be a spouse of the primary visa applicant or a dependent child of a dependent child. He must considered against either the dependent child provision in r. 1.12(1)(b) or a relative provision in r. 1.12(1)(e). Both provisions relevantly require the applicant to be dependent on the family head.

7. The Tribunal finds that the applicant was over the age of 18 at time of the application. There is nothing to suggest that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. The definition of ‘dependent’ in r. 1.05A provides

   (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.

   Is the applicant a member of the family unit of the primary visa applicant?

8. In his written submission to the Tribunal of 8 July 2015 the applicant’s representative suggested that the delegate’s decision is invalid or incorrect because no decision has been made on the primary applicant and it was inappropriate for the delegate to assess the secondary applicant before undertaking the assessment of the primary applicant’s circumstances. The representative also argues that the delegate relied on the wrong provision to refuse to grant the applicant the visa. The Tribunal is of the view that such submissions are misguided. There is nothing in the Act to suggest the order in which applications are to be processed and no requirement that primary applicants must be assessed and their cases decided before any assessment is undertaken in relation to secondary applicants.

9. The representative claims that the primary decision is not valid, because the delegate erroneously relied on post-application information to consider the time of application criterion, so the Tribunal does not have jurisdiction to conduct the review. The Tribunal rejects that argument because the applicant has not established that the primary decision is not a valid one. Even if the delegate relied on irrelevant considerations (a claim on which the Tribunal makes no finding), that would not invalidate the primary decision and affect the Tribunal’s jurisdiction. Contrary to the representative’s submissions, the Tribunal does have the power to ‘cure’ such errors through the process of review. There is a decision by the delegate and a valid application for review made by the applicant in respect of that decision. The Tribunal finds that it does have the jurisdiction to consider the matter and it is obliged by the Act to conduct the review.

10. The applicant also argues that because the delegate considered the primary criteria, the Tribunal can only considered the primary criteria. However, the Tribunal conducts a review de novo and is able to consider all criteria for the grant of the visa. The representative argues that the Tribunal must make the assessment in relation to the primary applicant and the delegate was unable to make findings in relation to the secondary applicant without first considering, and making a decision, in relation to the primary applicant. The Tribunal is unable to comment on the order in which the delegate conducted the assessment, however, the Tribunal notes that there has been no decision in relation to the primary applicant, there is no application for review in relation to the primary applicant and therefore the Tribunal has no jurisdiction in relation to the primary applicant.

11. Having considered the applicant’s arguments, the Tribunal is satisfied that it has a valid application for review before it and that it has jurisdiction to consider the matter. The Tribunal will now turn to the substantive issue before it.

12. The applicant claims to be a member of the family unit of the primary visa applicant. He claims that at the time the application was made in 2008, he was dependent on the primary visa applicant. Little documentary evidence of such dependence has been provided. The applicant informed the Tribunal that his grandmother was financially supported by her son and would give him some money. In the Tribunal’s view, that would indicate the applicant’s dependence on his uncle, rather than his grandmother and the grandmother did nothing more than pass the money to him that was provided by the uncle. The Tribunal is not satisfied on the evidence before it that the applicant was dependent on the primary visa applicant at the time he made the application in 2008.

13. The applicant conceded in his oral evidence to the Tribunal that at the time of this decision, he is not dependent on the primary visa applicant. His evidence to the Tribunal is that he presently works and earns about $600 per week. The applicant informed the Tribunal that his grandmother does not work, has no income other than the support she receives from him and from her son. The Tribunal is not satisfied that the applicant is, and has been for a substantially period prior to the time of this decision, substantially reliant on his grandmother for financial support to meet his basic needs for food, clothing and shelter. The Tribunal is not satisfied that such reliance, even if it were to exist, is greater than any reliance by the applicant on any other person or source of support to meet his basic needs for food, clothing and shelter. The Tribunal is not satisfied the applicant meets paragraph (1)(a) of the definition of ‘dependent’ in r. 1.05A.

14. There is nothing before the Tribunal to indicate that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. Indeed, the applicant’s evidence to the Tribunal is that he is presently employed. The Tribunal is not satisfied that the applicant meets paragraph (1)(b) of the definition of ‘dependent’ in r. 1.05A. The Tribunal is not satisfied that the applicant is dependent on the primary visa applicant. The Tribunal is not satisfied that he meets r. 1.12(b) or (e) of the definition of the ‘member of the family unit’ and there is no evidence that he meets the remaining clauses of that definition. It follows that the Tribunal is not satisfied that at the time of this decision, the applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 804 visa.

15. Further, the applicant’s evidence to the Tribunal is that the primary visa applicant’s application for the visa has not been finalised. That is, there is nothing to indicate that the primary visa applicant is the holder of a subclass 804 visa. For that reason also, the Tribunal is not satisfied that the applicant is a member of the family unit of a holder of a subclass 804 visa. The Tribunal is not satisfied that the applicant meets cl. 804.321.

    Conclusion

16. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 804 visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

    Kira Raif
    Senior Member