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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chandra (Migration)

Details

AGLC: Chandra (Migration) [2023] AATA 4651
Case: [2023] AATA 4651
Decision Date: 19 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The applicant, the son of the primary applicant, sought to be recognised as a member of the family unit. The sponsor was the applicant's sister, an Australian citizen.

The central legal issue before the Tribunal was whether the applicant qualified as a "dependent child" of the primary applicant, his father, as defined by regulation 1.12 of the Migration Regulations 1994. This definition requires the child to be dependent on the family head. The Tribunal also considered the applicant's circumstances, including his age at the time of application, his current employment, and the pooling of family finances and housing provided by the sponsor.

The Tribunal noted that the applicant was 18 years old at the time of the visa application and was now in his thirties and employed full-time. While acknowledging strong compassionate circumstances, including the unreasonable delay in processing the parents' visa, the applicant's education and work history, and the parents' health, the Tribunal found that the applicant did not meet the definition of a dependent child under the Regulations. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 decision804.321 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 CHILDBackground 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.)

Ratio Decidendi

Legal Principle Established

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