Chandra (Migration) - [2023] AATA 4651

Chandra (Migration) [2023] AATA 4651 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Raymond Setiawan Chandra
REPRESENTATIVE:  Mr Konfir Kabo (MARN: 0209289)
CASE NUMBER:  2109389
HOME AFFAIRS REFERENCE(S):          CLF2017/36009
MEMBER:Brendan Darcy
DATE:19 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.

Statement made on 19 December 2023 at 11:12am
CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – member of family unit of primary applicant father – dependency – aged 18 at time of application, now in 30s and working full-time – pooling of family’s finances and housing provided by sponsor (applicant’s sister) – strong compassionate circumstances – unreasonable delay in processing of parents’ visa – applicant’s education and work – parents’ physical health and psychological state – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 56, 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a), 1.12(1), Schedule 2, cl 804.321
CASE
Nguyen v MICMSMA [2020] FCCA 2705
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 Aged Parent (Residence) (Class BP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 April 2007. The delegate refused to grant the visa on 7 July 2021 on the basis that the applicant did not satisfy the requirements of cl 804.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 804.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the applicant’s father at the time of decision.
The delegate refused to grant the visa on 5 January 2022 on the basis that cl 804.321 was not met because the applicant did not meet the membership of the same family unit criteria under regulations 1.03 and 1.12.
The applicant and the applicant’s sister (AAT: 2200795) appeared before the Tribunal on 22 August 2023 to give evidence and present arguments in a joint hearing. The Tribunal also received oral evidence from the applicant’s father, Andika Sanjaya Chandra, and mother, Imelda Tuti Serang.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the primary applicant, the applicant’s father, Andika Sanjaya Chandra, is the parent of the applicant (‘the child’) subject to this review. The evidence before the Tribunal is that the sponsor, Florida Susanty Candra], is the child’s relative, namely, the sponsor’s biological sister who is also an Australian citizen.
The issue in this review is whether the applicant is a member of the family unit of as the applicant’s father and satisfies cl 804.321 in Schedule 2 to the Regulations which states:
804.32 Criteria to be satisfied at time of decision
804.321 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.
Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (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.
Regulation 1.12(1) 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 dependent child of the family head or of their spouse or de facto partner;
·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or
·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.
In this instance, the applicant is claiming to be the dependent child of the family head whose is the primary applicant.
DEPENDENT CHILD
Background
The applicant was born on 27 September 1988 in Indonesia. He is a citizen of the Republic of Indonesia.
The applicant arrived in Australia on 4 August 1998 with his parents and two siblings. Along with his family members, the applicant lodged for a Class AZ protection vide on 1 September 1998. The Department refused to grant the applicants protection visas on 7 October 1998. They applied to have the refusal decision reviewed by the Tribunal, differently constituted, and were unsuccessful. The applicants then lodged for judicial review and on 28 March 2006 the Federal Court set aside the decision to have matter determined by the Tribunal.
On 15 August 2006, one of the applicants, Florida Susanty Candra, withdrew her applicant for review as she had obtained Australian citizenship in 2005.
On 19 January 2007, the Minister personally intervened to grant the remaining visa applicants substituted subclass 676 visitor visas. (For application lodged prior to 23 March 2013, holders of substituted subclass 676 visa were eligible to apply for this subclass of visa, even if the primary visa applicant does not meet the pensionable age requirement.)
On 27 September 2006, the Tribunal affirmed the decision not to grant remaining applicants protection visas. The decision was recorded as RRT case number 060382923.
An application for a Subclass 804 Aged Parent visa has been made by the applicant, his other sister, Caroline, and both of his parents on 16 April 2007.
His father was the primary applicant. At the time of application, the applicant was aged 18 years of age and dependent on the primary applicant. The application was allocated a queue date of 08 October 2009.
On 20 April 2017, the application was initially refused on the basis the applicants’ sponsor was not settled, however on appeal to the AAT, this decision was remitted to the Department on 11 September 2020 with the direction that the sponsorship requirement was met. The decision record (AAT case number 1710046) states it would therefore be appropriate for the other applications pertaining to Ms Florida Susanty Chandra’s other relatives to be reconsidered against the secondary criteria.
It is noted in the AAT’s decision at paragraph 53 that the sponsor had provided shelter to the applicants in a fixed asset owned by the Australian citizen sponsor for a considerable amount of time and that the applicants had not been paying rent to live in it. The address of that fixed asset was 23 Willis Street, Kensington in the State of Victoria.
On 26 November 2021, the Department wrote to the applicants for further information under s 56 of the Act. The Department received copies of the applicant and his parents’ current Indonesian passports set to expire in 2026; completed questionnaires for demands over 18 years of age a completed Form 47A and police clearances from the Indonesian authorities for the primary applicant and his spouse.
While the Department granted the Aged Parent visas to the primary applicant and the primary applicant’s spouse, it refused to grant the visas to the applicant and his sister, Caroline, on 7 July 2021.
The primary applicant applied to that refusal decision reviewed by the Tribunal. The Tribunal set aside the matter in favour of the primary applicant (AAT 1710046).
On 24 January 2022, the Department granted the primary applicant as well as the applicant’s mother Subclass 804 visas.
As mentioned above, the delegate refused to grant the visa on 5 January 2022 on the basis that cl 804.321 was not met because the applicant did not meet the membership of the same family unit criteria under regulations 1.03 and 1.12. The Department made a separate refusal decision in relation to the applicant’s brother on the same day.
Both the applicant and his sister, Caroline, applied to have the refusal decisions refused by the Tribunal on 21 January 2022. The applicant and his sister (AAT: 2200795) appeared before the Tribunal on 22 August 2023 to give evidence and present arguments in a joint hearing. A number of payslips and utility bills were submitted at the hearing.
On 31 August 2023, the applicant’s representative provided a post hearing submission.
Findings
Member of the family unit is defined in reg 1.12 to mean: a spouse or de facto partner of the family head; or a dependent child of the family head or of a spouse or de facto partner of the family head; or a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or a dependent relative of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household.
The Tribunal is satisfied that the applicant’s father who is the primary visa applicant in their family’s Aged Parent visa application, is a person who has satisfied the primary criteria and is a holder of a Subclass 804 visa.
The question in this matter is whether the applicant is a member of the family unit of the primary visa holder of a Subclass 804 visa.
At the time of application in 2007, the applicant had just reached the age of majority and was a full-time student.
At the time of making this decision, the applicant is aged 34 years of age and had last completed coursework in 2010 when he completed an Advanced Diploma in Accounting.
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. The Tribunal is not satisfied that he meets paragraph 1(b) of the definition of dependent in regulation 1.05A.
More relevant to this matter is part (1)(a) of regulation 1.05A which makes it necessary to establish whether the first person (the applicant) is dependent on the other person (the primary applicant). The subregulations state:
✃ (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.
At the hearing the Tribunal explained to the applicant, as the applicant is not aged under 23 years, to be considered a member of the family unit, the applicant is required to demonstrate that he is wholly or substantially reliant on the family head or the spouse of the family head, for financial support to meet the first person’s basic needs for food, clothing and shelter.
The Tribunal heard that the applicant’s father ceased working as forklift in 2018 for medical (musculoskeletal) reasons while the applicant’s mother (wife of the primary applicant) worked at a childcare centre on a continual basis and the family otherwise pooled their modest financial resources.
When considering whether the sustainable reliance for basic needs must include shelter, the Tribunal has taken into that in Nguyen v MICMSMA the court found that ‘financial support’ simply refers to doing that which relieves the first person from having to pay all or part of the price for the food, clothing and shelter that the first person needs to meet his or her basic needs. Providing economic goods without payment may be considered financial support.[1] Sometimes, however, it may be necessary to consider the underlying source of the financial support and the reasons for it. This is because, while the Regulations generally identify a single person (e.g., the primary visa applicant or the sponsor) on whom a visa applicant is required to be ‘dependent’, as a practical matter that may be difficult to determine where that person is part of a couple (e.g. a husband and wife).
[1] Nguyen v MICMSMA [2020] FCCA 2705 at [42]. The Court found the Tribunal did not err in its finding that the grandmother (of the applicant) allowing the applicant to live in her house rent free was financial support.
The Tribunal realises that the applicant’s father was not earning money for a period of the relevant time, but it has taken into account the primary applicant is a member of couple when taking into account his long-term marriage with his wife.
Moreover, the applicant belongs to a tightly knit but patriarchal family whereby the applicant’s family has the income, including income generated by the applicant’s mother, his adult sister and himself, pooled towards him to direct and spend for the benefit of the family as a whole.
It is generally considered that ‘for a substantial period of time’ is about two years. In this case, the Tribunal is willing to take into account the period a seven-year period commensurate to the longevity of this visa application that had been lodged in 2007.
In accepting this, however, the Tribunal is unable to overlook the accepted fact that the applicant has been generating money on a full-time basis. Both the Tribunal and the Department received evidence that the applicant has been earning a net income of around 43,300 dollars per annum over that seven-year period.
The applicant and other parties have argued because the money has been pooled, the applicant is actually reliant on his parents for a 200 dollar a week amount for food, utilities and assistance with a car.
Even in circumstances where he contributes to the pooling of such money or was receiving an allowance from that pooled money, this is not indicative of a person who is either substantially or wholly on the applicant’s father for his basics needs for food and clothing or the income his parents was generating during the relevant period was not greater than that of the applicant.
The Tribunal also notes that the shelter has been provided by the sponsor (the applicant’s Australian citizen sister) who owns the Kensington dwelling in which the family had been long term residents, and has not been the primary applicant. Although the Tribunal places some but not any notable or significant weight on the applicant’s father having contributed to the upkeep of the residence in question.
(The Tribunal also notes the applicant is engaged to be married to an Indonesian national. However it places no weight on this in evaluating the applicant’s circumstances about dependency under r.1.05A)
Taking the overall evidence into account over a substantial period time leading up to the time of making this decision, the Tribunal is satisfied that the applicant’s reliance was neither substantially nor wholly reliant on the applicant’s father for financial support to meet the applicant’s basic needs for food, clothing and shelter, for the purposes of part(1)(a)(i) of regulation 1.05A.
It is also satisfied the applicant’s reliance on the applicant’s father is not greater than any reliance by the applicant or any other person, or source of support, for financial support to meet the the applicant’s basic needs for food, clothing and shelter, for the purposes of part(1)(a)(ii) of regulation 1.05A.
The Tribunal therefore finds that the applicant for the purpose of reg 1.12(1)(b) is not a child of the family head, that has turned 23 and is dependent (as per paragraph 1.05A(1)(a)) on the family head.
The applicant does not satisfy any element of regulation 1.05A. It follows that the applicant does not satisfy regulation 1.12 as he is not a dependent child on the primary applicant.
Accordingly, the Tribunal is not satisfied that the applicant is a member of the family unit of Mr Andika Sanjaya Chandra, the applicant’s father and therefore does not meet the requirements of cl. 804.321.
Ministerial Intervention recommendation
While Tribunal is satisfied that the applicant does not meet clause 804.321, it accepts this is a suitable and appropriate matter to be referred to the Minister for the exercise of Ministerial Intervention powers under the Act.
Part 4 of the Minister’s Guidelines on Ministerial Powers explains that:
[c]ases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers [such as]:
• circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case” [; and]
• strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
In this context, the Tribunal notes the applicant’s visa history in Australia extends back to 1998 when his family (himself, his two parents and two sisters) departed Indonesia and applied for protection visas. The dispositive claim for protection was based on the family’s fears of being persecuted on the basis of their Chinese ethnicity whereby in the aftermath of financial crisis Chinese businesses were targeted during violent racist attacks. However, their circumstances did not amount to reaching the threshold arising from the refugee criteria at the time of that decision. While the applicant and his family were unsuccessful in that protection visa application, there were no adverse credibility findings against the applicants according to the 2006 decision by the Tribunal, differently constituted. That decision states:
The Tribunal has accepted that the applicants suffered a very traumatising event in Indonesia, being attacked and having their business burnt to the ground and everything they had destroyed. The Tribunal notes that the second-named applicant’s sister, who travelled to Australia at the same time as the applicants, was recognised as a refugee in November 1999. The Tribunal accepts that the applicant’s two youngest children have spent their formative years in Australia. The youngest child was a matter of months old at the time that they travelled to Australia and has resided in Australia for eight years. The second son has undergone all his secondary education in Australia and part of his primary education.
The applicant’s older daughter, although no longer an applicant, has clearly made some remarkable achievements in Australia. She has studied, obtained a scholarship to attend university and is sponsored by Patricks. For the past five years she has been supporting the family. She has taken out Australian citizenship and has made a significant contribution to Australia and clearly does not want to be separated from her family if they were to return to Indonesia. However, the Tribunal’s role is limited to determining whether the applicants satisfy the criteria for the grant of protection visas. A consideration of their circumstances on other grounds is a matter solely within the Minister’s discretion.
Based on this recommendation, the Minister at the time enabled the applicants to lodge a substantive Aged Parent visa application in 2007. That application was then placed in a queue for ten years. In 2017, a delegate acting for the then Minister refused the application. At this point, the applicant was aged 34. As outlined above, the applicant’s father and mother were granted Aged Parent visas in January 2022.
There is a strong case in this tortuously long visa history that there was an unintended consequence of the legislation whereby the applicant was part of a Subclass 804 visa as an adolescent and full-time student but the matter has not been fully determined in relation to the applicant despite the extraordinary longevity of this matter. To the Tribunal’s mind, this has been unreasonable.

The applicant has undertaken primary and secondary education and completed an Advanced Diploma in Accounting. His primary employment experience has been in Australia and his prospects of establishing suitable employment in Indonesia is very limited.
The applicant has otherwise been a studious and productive member of the Australian community. He belongs to a close-knit family towards which he has pooled in modest income to assist the family unit during many years of uncertainty. His parents, as they have aged, are experiencing physical deterioration, and they have both been psychological burden with guilt about the degree of uncertainty arising from their migration status. There is no suggestion he is not a person of good character.
For all intents and purposes, the applicant is a long-term member of the Australian community along with his other family members.
The Tribunal considers there are strong compassionate circumstances that if not recognised could result in serious ongoing and irreversible harm to an Australian family unit, namely the applicant’s father, mother and his sister who has provided the applicant emotional and material care for the visa applicant since his arrival in 1998.
Based on the available evidence about the applicant’s circumstances and their closeness of this Australian family unit, the Tribunal will be making a referral to the minister for his urgent consideration under s 351 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant an Aged Parent (Residence) (Class BP).
Brendan Darcy
Member
1.12     Member of the family unit
(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)     a spouse or de facto partner of the family head; or
(b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(d)     (Omitted 02/04/2005)
(e)      a relative of the family head or of a spouse or de facto partner of the family head who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.
…
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) …