Cilliers (Migration)

[2020] AATA 3174

Cilliers (Migration) [2020] AATA 3174 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tasmin Cilliers

CASE NUMBER:  1926979

HOME AFFAIRS REFERENCE(S):          BCC2018/4381716

MEMBER:P. Maishman

DATE:12 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·cl.189.311 of Schedule 2 to the Regulations

Statement made on 12 June 2020 at 12:17pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicant is dependent as defined in r.1.05A(1)(a) – applicant is a ‘member of the family unit’ of the primary applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.05, 1.12, Schedule 2, cl 189.311

CASES
Huynh v MIMA [2006] FCAFC 122

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 6 September 2019 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act). The applicant was included in the application of her mother, Mrs Thersia Cilliers, as a member of her family unit.

2. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because the applicant did not satisfy cl.189.311 as the delegate was not satisfied the applicant is a member of the family unit of the person who holds a subclass 189 visa.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Relevantly to this case, cl.189.311 requires the applicant to be a ‘member of the family unit’ of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and to have made a combined application with that person.

7. The Tribunal had before it a copy of the Department’s file containing the visa application and evidence provided to the Department. The visa application shows the applicant made a combined application for the visa with the primary applicant, her mother Mrs Thersia Cilliers, on 8 October 2018. The Department notified the primary applicant she was granted a Subclass 189 visa on 7 September 2019.

8. The Tribunal has considered the evidence on the Department’s file and finds the applicant made a combined visa application with her mother, the primary applicant. The Tribunal finds the primary visa applicant is the holder of a subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

9. The applicant gave the Tribunal a copy of the delegate’s decision record. The delegate found the applicant, at the time of decision, was not studying and was employed on a casual basis earning an average of 20 to 25 hours per week and earning a wage of $482.81. The delegate found the applicant was not a ‘member of the family unit’ of her parents because she was not wholly or substantially reliant on her parents for financial support to meet her basic needs of food, clothing and shelter and so was not dependent on them.

10. 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 a subclass 189 visa.

11. The term ‘member of the family unit’ is defined in r.1.12. Relevantly it provides a person is a ‘member of the family unit’ of the family head if they are the child of the family head, have turned 18, but have not turned 23 years, and are ‘dependent’ on the family head or the spouse of the family head.

12. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

13. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

14. The applicant’s birth certificate shows the applicant was born on 2 February 2001. The Tribunal finds the applicant turned 18 years old on 2 February 2019.

15. The applicant gave the Tribunal a statutory declaration dated 9 June 2020. The applicant declares that she completed secondary studies in 2018 and deferred tertiary studies for a year in order to work and save money to pay for her studies. The applicant says two years at university would cost $24,000 and that she is not eligible for the government subsidy so must pay her fees at the beginning of each semester. The applicant says she contributed 95% of her earnings towards her savings for university fees. The applicant paid the full fees and commenced full-time studies in the first semester of 2020. The applicant says through 2019 and through the first semester of her studies she has remained wholly reliant on her parents to financially support her basic needs of food, shelter and clothing. The applicant provided a copy of university since invoice and payment receipt.

16. The applicant’s mother, Mrs Cilliers, provided the Tribunal a statutory declaration dated 9 June 2020. Mrs Cilliers declares that the applicant is the daughter of her and her husband and wholly dependent on them for food, shelter and clothing. Mrs Cilliers provided a lease agreement showing she and her husband are joint tenants for their property that allows five occupants. The Tribunal accepts Mrs Cilliers’ declaration the occupants are her, her husband and their three daughters, including the applicant. The Tribunal accepts Mrs Cilliers’ declaration that as the applicant’s parents they pay for her rent, food, personal hygiene items, health insurance, phone/Internet, basic clothing items in transport – as they do for each of their children.

17. The Tribunal had regard to the student fees and charges invoice and receipt for fees paid for Semester 1 2020, provided by the applicant. The Tribunal is satisfied that the applicant is a full-time university student. The Tribunal had regard to the bank statement provided by the applicant showing her deposits to a savings account. The Tribunal accepts the applicant’s earnings during 2019 contributed predominately to savings to pay for her proposed study and not substantially to the provision of food, clothing or shelter for herself.

18. The Tribunal acknowledges the delegate’s concern the applicant was not studying during 2019 after completing high school at the end of 2018. The Tribunal however accepts the applicant’s declaration, supported by her mother’s declaration, that the applicant worked during 2019 predominantly to pay for the university degree she intended to commence in 2020 and was otherwise wholly or substantially supported financially by her parents for her basic food, clothing and shelter needs, as she had been when she was a secondary student.

19. The Tribunal is satisfied the applicant is, and has been for a substantial period, wholly or substantially reliant on her parents for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is satisfied the applicant’s reliance on her parent’s financial support is greater than her reliance on her own income to meet her basic food, clothing and shelter needs. The Tribunal is satisfied the applicant is dependent as defined in r.1.05A(1)(a).

20. The Tribunal is satisfied the applicant is a child of the primary applicant and has turned 18 but has not turned 23. The Tribunal is satisfied the applicant is dependent on the family head. The Tribunal is satisfied the applicant is a ‘member of the family unit’ of the primary applicant as defined in r.1.12.

21. The Tribunal finds the applicant is a member of the family unit of Mrs Cilliers, who holds a subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa,  and that she made a combined application with Mrs Cilliers.

22. The Tribunal finds that the applicant satisfies cl.189.311(a) and cl.189.311(b).

23. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

24. The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

    · cl.189.311 of Schedule 2 to the Regulations.

    P. Maishman
    Member