Kudupudi (Migration)

[2021] AATA 4986

Kudupudi (Migration) [2021] AATA 4986 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Swetha Kudupudi

CASE NUMBER:  1909831

HOME AFFAIRS REFERENCE(S):          BCC2017/2563866

MEMBER:Nicholas McGowan

DATE:22 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets sub regulation 1.12(2)(b)(iii) for the purposes of  clause 187.311: Subclass 187 (Regional Sponsored Migration Scheme) visa.

Statement made 5:58pm on 22 October 2021.

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – member of the family unit – ‘dependent’ – wholly or substantially reliant on mother and step-father – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05A, 1.12; Schedule 2, cl 187.311

STATEMENT OF DECISION AND REASONS

1. The applicant applied for a Regional Migration Scheme (Subclass 187) visa on14 July 2017. Her application was refused by the Home Affairs Minister’s delegate on 29 March 2019 and lodged her review of that refusal with this Tribunal on 18 April 2019.

2. The matter was constituted to this Member on 4 August 2021 and on 30 September 2021 the applicant was invited to attend a hearing as the Tribunal was unable to make a favourable decision on the information before it alone.

3. This Tribunal conducted the hearing on 22 October as scheduled and at which the applicant, her biological mother and step-father provided oral evidence and arguments.

4. The applicant is represented in respect to this review and her solicitor attended the Tribunal’s hearing and made an oral submission on behalf of the applicant.

5. Relevantly, the criteria under clause 187.3 are for “…applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application”.

6. The applicant’s representative has outlined the applicant’s claims in the applicant’s pre-hearing submission dated 15 October 2021. Various other documents and information were also provided in support of the applicant’s review and are contained in the Tribunal’s digital casemate case file.

7. Sub regulation 1.12(2) defines a member of the family unit: (relevantly because the applicant is now 26 years of age): 1.12(2)(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”.

8. Sub regulation 1.12(2)(c) is not applicable in this matter.

9. Sub regulation 1.05A(1)(b) specifies the criteria under which a child can be considered as dependent on the family head or on the spouse or de facto partner of the family head:

   Dependent

   (1)  Subject to sub 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 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.

10. Sub regulation 2, as referred to above, is not applicable in this case given the visa ‘type’ the applicant has applied.

11. The evidence in this matter must first be considered in respect to whether the applicant satisfies sub regulation 1.05A(1)(a)(i) and (ii). If so, the applicant need not satisfy 1.05A(1)(b) to be considered ‘dependent’.

12. Both the documentation provided to the delegate, and that provided to this Tribunal since, and in addition to the oral evidence of the parties at this Tribunal’s hearing, all consistently claim the applicant ‘is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person. Indeed, while the applicant has worked and earned some money, she earnings are limited and further, do not mean she is not significantly reliant upon her mother (and step-father) for financial support to meet her ‘basic needs for food, clothing and shelter’. Further, the consistent evidence is that the applicant’s reliance upon her mother (and step-father) ‘is greater than any reliance (by her) on any other person, or source of support, for financial support to her basic needs for food, clothing and shelter’. The Tribunal is satisfied the applicant meets these aspects of 1.05A(1): (a)(i) and (ii) because all the evidence consistently points to this, and supports these contentions, notwithstanding the applicant has held a casual job.

13. For the above reasons the Tribunal is satisfied that applicant satisfies sub regulation 1.05A(1)(a) and therefore satisfies the requirements of 1.12(2)(b)(iii).

14. Given all the above, this Tribunal finds the applicant satisfies sub regulation of 1.12(2)(b)(iii) for the  purposes of clause 187.311 for the grant of a Regional Sponsored Migration Scheme (Subclass 187) visa.