CEDENO (Migration)

[2019] AATA 5284

CEDENO (Migration) [2019] AATA 5284 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VLADIMYRL RABARA CEDENO

CASE NUMBER:  1809237

HOME AFFAIRS REFERENCE(S):          BCC2017/991477

MEMBER:Kira Raif

DATE:12 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 12 August 2019 at 1:22pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – dependent child of sponsor – relationship breakdown – mental sufferings – insufficient evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.311, r 1.05, 1.12

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 19 March 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the Philippines, born in April 1994. He applied for the visa on 13 March 2017 as a member of the family of his mother, the primary visa applicant. The delegate refused to grant the visa because the applicant did not satisfy cl.485.311 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was a dependent child, and a member of the family unit, of the primary visa applicant. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

5. The issue in the present case is whether the applicant is a member of the family unit of a person who is the holder of the Subclass 485 visa, as required by cl. 485.311.

6. The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, r. 1.12(2) provides the following:

   (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 step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child 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)

   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.

   Is the applicant a member of the family unit of another person?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application as a dependent child of his mother, who was the primary applicant. Once the applicant turned 23, he was requested to provide evidence of his dependency in light of the definition in r. 1.05(1)(b). The applicant has not done so.

8. The applicant’s mother provided a written statement to the Tribunal at the commencement of the hearing. Ms Cedeno states that the applicant was affected by the breakdown of his relationship which resulted in him being depressed and suicidal and affected by nightmares and “mental sufferings”.  Ms Cedeno refers to the support she provides to the applicant and the need for such support, stating that he cannot return to his home country on his own. Ms Cedeno also gave oral evidence to the Tribunal.

9. The applicant’s oral evidence to the Tribunal is that he lives away from his parents but plans to move in with them in the future. The applicant told the Tribunal that he has trained as a cook and has been working as a cook or a kitchen hand since coming to Australia in 2014. He has been working on a part-time basis 10-15 hours a week with a period of about four to five months in 2014-15 when he had not worked. His most recent employment is with a restaurant in Terrigal. He started there in February 2018 and generally works 10-15 hours on Fridays and Saturdays. He is paid $300 a week, which covers his rent of $190 and other expenses such as food and shelter, although the applicant said he also borrows money from his parents.

10. The Tribunal accepts the evidence of the applicant and his mother that the applicant had been affected by the breakdown of his relationship but the Tribunal notes that there is no medical evidence to indicate that he had been incapacitated as a result of that, or for any other reason. The applicant’s evidence to the Tribunal is that he has been working continuously since 2014, with the exception of a brief period of up to five months in 2014-15. The Tribunal finds that at the time of application, at the time of this decision, and for the entire period during the processing of the application, the applicant has been employed as a cook or a kitchen hand, at various restaurants, and on his own evidence, he has been employed for a minimum of 10 hours a week. He has been able to work in his chosen field in which he had trained. There is no medical evidence concerning any incapacity. Despite any depression or any other condition to which the applicant now refers, the Tribunal is not satisfied that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied the applicant meets paragraph 1.05A(1)(b) of the definition of ‘dependent’.

11. As the applicant had turned 23 shortly after making the application, the Tribunal is not satisfied the applicant meets r. 1.12(b)(iii)  once he had reached that age.

12. With respect to the earlier period before the applicant turned 23, the Tribunal notes the applicant’s evidence that his income of $300 is sufficient to meet the cost of accommodation and the majority of his other needs. While the Tribunal accepts the applicant’s evidence that he also borrows from parents, there is insufficient evidence before the Tribunal to satisfy the Tribunal that the applicant’s reliance on his parents is greater than his reliance on another source of support, being his income from employment, to meet his basic needs for food, clothing and shelter. The Tribunal is not satisfied that the applicant was a dependent child of the sponsor before he turned 23.

13. There is nothing to suggest that he applicant is the spouse or de facto partner of the family head. The Tribunal is not satisfied the applicant is a member of the family unit within the meaning of r. 1.12. The Tribunal is not satisfied the applicant meets cl. 485.311.

    Conclusion

14. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Kira Raif
    Senior Member