Casiano (Migration)

[2024] AATA 3830

Casiano (Migration) [2024] AATA 3830 (27 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rene Jr Casiano

REPRESENTATIVE:  Mr Jesus Icao (MARN: 9367993)

CASE NUMBER:  2017177

HOME AFFAIRS REFERENCE(S):          CLF2018/356187

MEMBER:Kira Raif

DATE:27 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Other Family (Residence) (Class BU) visa.

Statement made on 27 September 2024 at 9:18am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – secondary applicant son – dependency – aged 22 at time of application and 24 at time of primary decision – wholly or substantially reliant on family head because of incapacity – no evidence of incapacity – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2), Schedule 2, cl 836.321

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 to refuse to grant the applicant a Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of the Philippines born in August 1996. He applied for the visa on 12 October 2018 on the basis of being a secondary applicant, and a member of the family unit, of his mother, who was the primary applicant. The delegate refused to grant the visa on 18 November 2020 on the basis that the applicant did not satisfy the requirements of cl 836.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant was a member of the family unit of the primary visa applicant. The applicant seeks review of the delegate’s decision.

3. On 12 September 2024 the Tribunal wrote to the applicant inviting him to attend the hearing on 1 October 2024 to give evidence and present arguments. On 27 September 2024 the applicant informed the Tribunal that he did not wish to attend the hearing and requesting the Tribunal to complete the review without his appearance. The Tribunal has thus decided to proceed to the decision without taking any further steps to enable the applicant to appear before the Tribunal.

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

   Relevant law

5. Clause 836.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by 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.

6. Regulation 1.12(2) 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 child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

7. In this instance, the applicant is claiming to be a dependent child of the primary visa applicant. 

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

8. If the applicant has turned 23, then the Tribunal must be satisfied that they are dependent on the family head because they meet reg 1.05A(1)(b), i.e. that they are 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. ‘Incapacitated for work’ means the applicant must be at least substantially incapacitated for paid work.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was born in August 1996 and the application was made in October 2018. The delegate noted that when the application was made, the applicant was 22 years of age but he was 24 at the time of the primary decision. The delegate noted that there was no evidence, and the visa applicant had not presented evidence of any incapacity. The delegate was not satisfied the visa applicant was a dependent child within the meaning of r. 1.12 and found that he did not meet cl. 836.321.

10. There is no further evidence before the Tribunal indicating the applicant is incapacitated for work. That claim has not been made and the Tribunal is not satisfied on the evidence before it that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions.

11. The applicant is not the spouse or de facto partner of the family head. He is not a dependent child of a dependent child. The applicant claimed to be a dependent child of the primary visa applicant. However, as the applicant is over the age of 23 and there is no evidence of his incapacity, the Tribunal is not satisfied that the applicant meets the definition of being a child of the family head in r. 1.12.

12. The Tribunal is not satisfied the applicant is a member of the family unit of the primary visa applicant as he does not meet any of the alternative definitions in r. 1.12. The Tribunal finds that the applicant does not meet cl 836.321 and the equivalent provisions in other subclasses of Class BU. The Tribunal must affirm the decision under review.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Other Family (Residence) (Class BU).

    Kira Raif
    Senior Member