Langlois (Migration)

[2022] AATA 2405

Langlois (Migration) [2022] AATA 2405 (13 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Stephanie Elise Langlois

CASE NUMBER:  1911780

HOME AFFAIRS REFERENCE(S):          BCC2018/1450312

MEMBER:Ian Berry

DATE:13 July 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 13 July 2022 at 1:00pm

CATCHWORDS
MIGRATION – Skilled (Independent) (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – member of family unit of primary applicant – adult child completed study and now working – not dependent on applicant and not incapacitated for work – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12(2), Schedule 189.311

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 under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant Ms Stephanie Langlois (Stephanie) applied for the visa on 28 March 2018. The delegate refused to grant the visa on 7 May 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 relevantly requires the applicant to be a member of the family unit of Mrs Lindsay Langlois (Mrs Langlois) at the time of decision.

3. The applicant appeared before the Tribunal on 13 December 2021 to give evidence and present arguments. The applicant was accompanied by her mother Mrs Langlois in relation to the review.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether Stephanie is a member of the family unit of Mrs Langlois and satisfies cl.189.311.

7. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations and is the next to this decision.

8. For this decision, the relevant parts of r.1.12(2) provide that a person (Stephanie) is a member of the family unit of another person (Mrs Langlois) if the person is:

   ·a child … of the family head … who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild). The definitions of dependent and dependent child are attached to this decision.

9. In this instance, Stephanie is claiming to be the child of Mrs Langlois and is dependent on her.

10. A person is the ‘dependent child’ of ‘a child or step-child of the family head or their spouse or de facto partner’ if they are the grandchild of the family head or their spouse or de facto partner. ‘Dependent child’ is defined in r.1.03 of the Regulations. Essentially, the grandchild must not be engaged, married or in a de facto relationship and, have not turned 18, or if they have turned 18, must be ‘dependent’ on the parent within the meaning of r.1.05A, or be incapacitated for work due to loss of bodily or mental functions.

11. Stephanie was born in 1995 and now is nearly aged 27 years. At the time of the application made on 28 March 2018, she was aged 22 years and at the time of decision aged 23 years.

12. Evidence states that Stephanie arrived in Australia on 15 April 2002 and has effectively lived in Australia since that time. Her studies have been undertaken in Australia and at the date of the hearing of this application, now just finished her double degree, is aged 26 years and in full employment.

13. When considering whether Stephanie 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 Stephanie’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.

14. Stephanie’s evidence confirmed her health position by stating she is not dependent on her mother Mrs Lindsay Langlois through being totally or substantially incapacitated for work either by being physically or mentally incapacitated.

15. Accordingly, Stephanie is not the dependent child of Mrs Lindsay Langlois and cl.189.311 is not met.

    DECISION

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

    Ian Berry
    Member

    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.

    …