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

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).
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.
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.
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.
The applicant was represented in relation to the review by the applicant’s mother Mrs DA Budd.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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.
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…

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 Green (Migration)

Details

AGLC: Green (Migration) [2022] AATA 2038
Case: [2022] AATA 2038
Decision Date: 23 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled Independent (Permanent) visa (Subclass 189). The applicant sought to be recognised as a member of the family unit of the primary applicant, who had since passed away. The Tribunal affirmed the decision not to grant the visa.

The central legal issue before the Tribunal was whether the applicant qualified as a "member of the family unit" of the deceased primary applicant, specifically concerning the definition of "dependent" under the Migration Regulations. This required an assessment of the applicant's reliance on the deceased for substantial support to meet basic needs, and whether this reliance was greater than any reliance on other sources.

The Tribunal referred to the Ministerial guidelines and the Department’s Procedures Advice Manual (PAM3) regarding the Minister’s discretionary power under s 351. While the Tribunal acknowledged the applicant's full-time employment, it ultimately found that the applicant did not meet the criteria to be considered a dependent member of the family unit of the deceased primary applicant. Consequently, the Tribunal determined that the case should be referred to the Department for consideration by the Minister.

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

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 The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.Ian BerryMemberDEFINITION ANNEXURE1.12 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 supportDependent childdependent 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

Ratio Decidendi

Legal Principle Established

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