Green (Migration)

[2022] AATA 2038

Green (Migration) [2022] AATA 2038 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Dayna Sheree Green

CASE NUMBER:  1911271

HOME AFFAIRS REFERENCE(S):          BCC2017/2745433

MEMBER:Ian Berry

DATE:23 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 23 June 2022 at 10:51am

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visas – Subclass 189 (Skilled – Independent) – member of the family unit – dependent on the primary applicant – primary applicant deceased – applicant’s full-time employment – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 65, 351
Migration Regulations 1994, Schedule 2, cl 189.311; rr 1.05, 1.12

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 to refuse to grant the applicant a Skilled Independent (Permanent) visa (189 visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the 189 visa on 2 August 2017. The delegate refused to grant the visa on 17 April 2019 on the basis that the applicant did not satisfy the requirements of cl 189.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 189.311 of Schedule 2 to the Regulations, relevantly requires the applicant to be a member of the family unit of Mr KL Green (the primary applicant) at the time of decision.

3. The applicant appeared before the Tribunal on 17 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the mother of the applicant, Mrs DA Budd.

4. The Tribunal exercised its discretion to hold the hearing by Teams Video. During the COVID-19 pandemic, special circumstances exist for the Teams Video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by Teams Video achieved this end. The applicant provided to the Tribunal a copy of the delegate's decision.

5. The applicant was represented in relation to the review by the applicant’s mother Mrs DA Budd.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the applicant is a member of the family unit and is dependent on the primary applicant with the level of dependency relevant to her age at decision time – aged 22 years.

Relevant facts

1. The applicant is aged 19 years at the time of the delegate’ s decision on 17 April 2019 but whose domicile is Australia as she has been living in Australia since aged 4 years.

2. Based on the information provided by the applicant’s parents, the applicant is the natural and lawful child of her mother Mrs Deborah Budd. At the hearing, the Tribunal was advised by Mrs Budd of her husband Mr Green died on Christmas Eve in 2020. He had suffered from Motor Neuron disease finally succumbing to that illness. 

3. The evidence on the Department’s file confirms that Mr Kerry Lance Green had been granted a 189 visa on 1 May 2019, by reason of his satisfying the primary criteria for the grant of the 189 visa.

4. The applicant made a combined application with her father’s 189 visa application.

5. When considering whether the applicant is dependent on their parent as required under r.1.05A, the Tribunal must be satisfied that they are ‘wholly or substantially’ reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support.

6. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

7. The applicant gave evidence of at her hearing, as did Mrs Budd, of the applicant’s working history. She is a salaried employed café manager at a café in West End. Having been employed since 2018, worked in another café in Deception Bay, but returned to the West End café where her employment has been full time. At the time of hearing, she was working at least 4 and occasionally 5 days in a week, graduating to 5 days in a week. At the time of the hearing, she earned net $668 for the 4-day week and net $760 for the 5-day week. She now lives apart from her mother because of her job location.

8. Accordingly, on the evidence given by the applicant is not the dependent child of the primary applicant and cl 189.311 is not met.

   Minister’s discretion

9. Having regard to the applicant’s circumstances, in particular:

   a.Her residency in Australia, has been since aged 4 years, when her family moved to Australia to live. She desires to participate in Australian affairs by contributing to the society known to her than probably her home residence in New Zealand.

   b.Her father the Late Mr Kerry Green died on Christmas Eve in 2020 of Motor neuron disease after a period of long suffering.

   c.The applicant has been educated in Australia where her siblings and mother continue to live.

   d.The applicant has been in full time employment since finishing school in 2016 and is highly regarded by her employer.

10. Having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Ian Berry
    Member

    DEFINITION ANNEXURE

    1.12    Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)    a spouse or de facto partner of the family head; or

    (b)     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 factor 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 (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    1.05A Dependent

    (1)subject to regulation (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 substantial 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 persons bodily or mental functions.

    (2)a person (the first person) is dependent on another person for the purposes of an application for:

    (d)     a protection Visa; or

    (ea)    a Refugee and Humanitarian (Class XB close bracket visa; or

    (i)     a Temporary Safe Haven (Class UJ) visa;

    If the first person is wholly or substantially reliant on the other person for financial, psychological or physical support

    Dependent child

    dependent child, of a person, means the child or step-child of the person (other than a child or stepchild who is engaged to be married or has a spouse or defective partner), being a child of stepchild who:

    (a) has not turned 18; or

    (b) has turned 18 and:

    (i)      is dependent on that person; or

    (ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions