Lopina (Migration) - [2025] ARTA 429

LOPINA (MIGRATION) [2025] ARTA 429 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Emmanuel Cadavos Lopina

Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2104486

Tribunal:Senior Member M Sripathy
Place:Sydney
Date: 18 March 2025
Decision: The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 18 March 2025 at 2:25pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – member of the family unit – dependent child – no continued financial dependency – wholly or substantially reliant – limited employment income – lengthy delay in processing – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cls 835.231, 835.321; rr 1.03, 1.05, 1.12
CASES
Huang v MIMA [2007] FMCA 720
Huynh v MIMIA [2006] FCAFC 122
Vo v Minister for Home Affairs [2019] FCAFC 108
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 2021 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 835 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 June 2011. The delegate refused to grant the visa on the basis that the applicant was not a dependent child and therefore not a member of the family unit of the primary visa applicant at time of decision and did not meet cl. 835.321.
The applicant applied for review of the decisions to the Administrative Appeals Tribunal on 9 April 2021.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 4 March 2025 to give evidence and present arguments. The Tribunal is also considering the review application of the applicant’s father and sister (ART case ref. 2104488). As the issues in the two matters are related, the Tribunal decided to hold a combined hearing in the two matters. The Tribunal received oral evidence from Rolando Lopina, Peter Piotrowski and Agnes Pronesti. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant applied for the Other Family (Residence) (Class BU) Subclass 835 visa as a member of the family unit of the primary visa applicant, Rolando Lopina, his father. At the time of application, in June 2011, he was 15 years old. The application was assessed by the Department as meeting the core criteria for the grant of the Remaining Relative (Subclass 835) visa on 12 February 2013 and placed in the global queue for Other Family visa applications. He was at that time 17 years old.
On 23 February 2021, on release of the application from the queue the Department requested current evidence to support the applicant’s continued financial dependency on his father. The applicant was at that time 25 years old.
The applicant provided a response to a Dependency Questionnaire and documents in support in March 2021, including details of his employment with his father as a cleaner on a part time basis. He claimed that he remained dependent on his father for accommodation, food and utilities. Bank statements, letter from Maid My Day Pty Ltd, and a letter from the primary applicant were provided in support.
On 24 March 2021, the delegate concluded, having considered the evidence and information provided by the applicant, that the applicant was not wholly or substantially reliant on his father for financial support to meet his basic needs for food, clothing or shelter and refused the application on the basis that he does not meet cl.835.321.
Evidence before the Tribunal
The applicant is now 29 years old.
On 6 December 2024, upon allocation of the review to a Member for consideration, the applicant was invited to provide submissions and evidence addressing the issue in contention, cl.835.321 which must be met at time of decision.
No response was provided to this invitation. The Tribunal invited the applicant to a hearing on 4 March 2025.
Tribunal hearing
The Tribunal took oral evidence at hearing from the applicant, his father, his aunt and uncle. A summary of evidence obtained at hearing follows.
The review applicant lives with his father and sister at the home of his aunt Arlene and her husband Peter Piotrowski. They have lived at this same address since his arrival in Australia in 2009. The house is owned by his aunt and uncle and there is no mortgage. His mother divorced his father around 2010 or 2011, he cannot recall exactly. She has not lived with them since then. He has seen her from time to time, but not on a regular basis. As far as he knows she is still in Australia. His mother has no relatives in Australia. She has 2 siblings in the Philippines. He did not know anything about her current family circumstances.
The applicant confirmed that he is single. He works with his father as a cleaner. They only take cash paid jobs now, previously they were also working for Maid My Day, as subcontractors. They work around 5 hours a day, five days a week. His father distributes around $300-350 per week to him as his share of the income. He gives him less than half the takings because he also has car and petrol expenses relating to the work. The review applicant said he deposits most of this money into his bank account. He said he has submitted tax returns, but not every year.
He uses his income for his personal expenses. He does not pay or contribute to rent. His father pays one third of the bills associated with the accommodation. Sometimes the review applicant may also contribute but there is no obligation. He contributes to groceries from time to time, but otherwise eats the food bought by his father, aunt and uncle.
Prior to working with his father, he was at home and did chores. He studied at TAFE in 2015 or 2016, up to Certificate II level. He has not studied since then. Other than working as a cleaner with his father, he has not engaged in any other employment. He understood that he was not permitted to work more than 20 hours a week, although more recently his father told him he may not be limited to that. The review applicant said that he mostly deposits the money his father gives him from work into his bank account. He spends this income on clothes, his amazon prime account, sports gear and saves for holidays.
The review applicant stated that he receives no other income from any other source. He does not receive any money from his mother.
His uncle is a pensioner, and his aunt works at a local school as a cleaner. His father only works as a cleaner also and has no other employment.
When asked if his father gives him any other money other than his share of the income they jointly earn, the review applicant initially said no. Later he changed that and said his father gives him another amount weekly as ‘pocket money’. When asked why he does that instead of a greater share of the income, he said he was concerned he was limited in the amount he can earn from income.
The review applicant’s sister works part time in retail, at a JD sports store, two days a week. She is about to start a new position with Qantas in March 2025.
The Tribunal invited the review applicant to provide evidence of his bank statements to support his oral evidence, and any other evidence he wants the Tribunal to consider.
Evidence from Rolando Lopina
The witness confirmed his address and who he lives with. He came to Australia with his (then) wife and two children. He divorced his wife in 2010 or 2011. She stayed with his aunt initially but he doesn’t know where she is now. When asked why they divorced, he said it was because he got involved with someone else and she found out. He said she was in contact with the children from time to time.
The witness said he worked as a cleaner and took his son to work with him. They work with Maid My Day and also have some private direct clients. They work 4-5 hours a day from both client sources and earn around $600 per week. He pays his son a slightly smaller share because he also has the expenses of petrol and the car. The witness said he puts in tax returns usually and the last one was last year.
He has a bank account, and the Maid My Day payments go into his bank account. It has recently reduced because they lost some clients. The direct clients pay by cash.
The witness confirmed that he does not pay or contribute to rent for his accommodation, which is owned in full by his sister and her husband. He pays one third of the bills relating to the accommodation, as the share of himself and his children. His children don’t contribute regularly but occasionally they offer something. He buys food for himself and the children, and his sister and her husband buy their food separately. They all share meals in the house. His daughter is presently working casually two days a week. She is about to start a new job next week. The children studied for a while but had to stop because they were being charged international fees and he could not afford it.
Evidence from Peter Piotrowski
The witness confirmed his address and that he owned this property with his wife, the aunt of the review applicant. He lives there with his wife and her brother’s family. They do not charge them rent to stay, but his brother-in-law contributes one third of the bills. They all share costs of food. He makes no other financial contribution to the review applicant.
To the witness’ knowledge the review applicant works with his father as a cleaner. He works Monday to Friday only and not on weekends. His sister works 1-2 days at a retail store. The witness said he has no knowledge of the situation with the review applicant’s mother. She divorced his father and he does not know anything about it.
Evidence from Agnes Pronesti
The witness lives in Kingswood with her husband and two children. She works at a factory twice a week. She confirmed her family composition. Her parents are deceased and she has two siblings in Australia. Her brother has two children. The witness said she is not in contact with the review applicant’s mother, as far as she knows she divorced his father and she has had no contact since.
The witness said she assisted her brother when the children finished school by paying for their tuition fees initially. Since then she helps out from time to time if needed. She is aware that her brother contributes to bills at her sister’s house. She is aware the review applicant works with his father as a cleaner. The daughter works in retail a few days a week.
When asked if she had anything else to say, the witness said the main issue for the family is the lengthy delay in processing the application. They were unaware that it would take so long to determine and that the current circumstances, rather than circumstances at time the application was made, would be considered. If they knew that before the family may have made a different decision about staying here or returning to Philippines, where they had a home and the children could have completed their education. Now the children have lived here for the majority of their lives and it is not fair to make them return.
The Tribunal indicated it would allow until 18 Mach 2025 for any further evidence or submissions in support of the application.
Post hearing submissions and information
On 17 March 2025 the Tribunal received the following documents:
·Letter from Director, Maid My Day, dated 6 March 2025, confirming the applicant’s father is employed as a cleaner from December 2015 to present, and listing his current client and number of hours - one client, 3 hours weekly.
·Applicant’s parents Divorce Order confirming their divorce obtained in Australia in June 2011.
·Applicant’s father’s 2019- and 2020-income tax returns.
CONSIDERATION
The issue in the present case is whether the applicant meets cl.835.321, which requires the applicant to continue to be a member of the family unit of a of a person who, having satisfied the primary criteria, is the holder of a Subclass 835 visa.
Member of the family unit has the meaning set out in r. 1.12, and relevantly for present purposes includes a dependent child.
‘Dependent child’ is defined in r. 1.03 and ‘dependent’ is defined in r. 1.05A of the Regulations. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.
The definition of ‘dependent’ requires that the person has been wholly or substantially reliant upon the other person for financial support in relation to their basic needs. The notion of substantial reliance requires ‘a meaningful degree of financial reliance on a person to an extent that the person might properly be described as being dependent on that person (as distinct from simply receiving some assistance from that person) for basic needs: Vo v Minister for Home Affairs.[1] The Court in Vo held that it does not involve a numerical assessment, whereby at least half the support required by the dependent person is provided by the other person, nor does it involve a concept of predominance[2] or ‘primarily’, ‘essentially’ or ‘in the main’. Regarding whether the substantial reliance on the other person to meet basic needs requires reliance for all three basic needs, or just some of these needs, in Vo v Minister for Home Affairs[3] the Court adopted a holistic approach, suggesting that it is the overall position that should be considered. The Court held a ‘meaningful degree’ of financial reliance is required, and found ‘it must be sufficient that without the extent of the support provided by the other person the dependent person would be in a position where their overall basic needs for food, clothing and shelter though aided by others would not be met.[4] Accordingly, it appears possible for a person to be substantially reliant on another person even if some part of their needs for food, clothing or shelter is being met by another source. Whether the person is ‘dependent’ on that other person as defined by reg 1.05A would also depend on the satisfaction of other elements of the definition, including that their reliance on that person to meet their basic needs is greater than their reliance on any other person or source.
[1] [2019] FCAFC 108 at [17].
[2] Ibid, at [15] –[16]
[3] Vo v Minister for Home Affairs [2019] FCAFC 108.
[4] Vo v Minister for Home Affairs [2019] FCAFC 108 at [17].
Significantly, in Huynh v MIMIA,[5] the Full Federal Court found that the proper construction of ‘dependent’ under the definition in reg 1.05A does not carry any implication of the notion of necessity or lack of choice. Subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.[6]
[5] Huynh v MIMIA [2006] FCAFC 122 at [39], [44].
[6] Ibid, at [39], [44]
The person must be wholly or substantially reliant upon the other person at the relevant time and for a substantial period immediately before the relevant time. For example, if the definition of ‘dependent’ arises in relation to a time of application criterion in a visa subclass, then the applicant must be dependent on the relevant person at the time of application and for a ‘substantial period’ immediately before the visa application. There is no definition in the Regulations of what constitutes a ‘substantial period’, but in the context in which ‘substantial’ is used in reg 1.05A it has been held that it should be understood to mean a lengthy period.[7]
[7] Huang v MIMA [2007] FMCA 720 at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in reg 1.03 which refers to a relative who ’has been dependent on that person for a reasonable period, and remains so dependent’ and how it should be reconciled with the definition of dependent in reg 1.05A that the person should be wholly or substantially reliant upon the other person for a substantial period. His Honour went on to state at [44] that, by contrast, a ‘reasonable period’ need not be lengthy.
In the present case, the Tribunal accepts the applicant is the child of Rolando Mansujeto Lopina, who was the primary visa applicant in the application who applied for the visa on the basis that he was the remaining relative of the sponsor, his sister, Arlene Piotrowski.
At time of application, on 28 June 2011, the applicant was 15 years old, and a dependent child of the primary visa applicant.
At time of decision, being the Tribunal’s decision, the applicant is 29 years old. As he is now over the age of 18 years, he is required to meet the definition of dependent in r.1.05A of the Regulations.
The Tribunal accepts, on the evidence before it, including the oral evidence at hearing, that the applicant is not engaged or partnered.
The critical issue remaining is whether he is wholly or substantially reliant on the primary visa applicant, being his parent, for financial support to meet his basic needs for food, clothing and shelter; and that his reliance on his father for this support is greater than his reliance on any other person or source of support for financial support to meet these needs.
On the evidence before it, the Tribunal is not satisfied that the applicant is dependent on his father within the meaning of that term as defined. The findings and reasons for this conclusion follows.
The Tribunal finds that the applicant lives with his father and sister in a house that is fully owned by his aunt and uncle (his paternal aunt’s husband). On his own oral evidence, confirmed by his uncle, he does not pay rent or board for his accommodation. While his father makes a one third contribution towards utility bills, the evidence before the Tribunal is that the applicant is not required to but does make a financial contribution from time to time. The Tribunal finds on this evidence that the applicant is provided in kind support for his accommodation by his paternal aunt and uncle. The Tribunal finds, on the applicant and his father’s oral evidence, that he works as a cleaner with his father and is paid a weekly income of between $300-$350, being his share of the income. The evidence is that they have numerous private clients and also, at this time, one client through Maid My Day. He told the Tribunal he generally deposits this income into his bank account, but despite requesting evidence of statements of his account, this was not provided. Regarding his food, the evidence is that the applicant eats meals with the family, and his father, aunt and uncle mostly buy the food and groceries, to which the applicant and his sister sometimes contribute.
In the absence of detailed financial documentation to support claims of the actual income regularly received by the applicant from his cash-based employment with his father, the Tribunal has taken a holistic approach to the circumstances described by the applicant, in accordance with the decision in Vo referred to above. It finds that the applicant is substantially financially supported in kind by his aunt and uncle for his accommodation. It accepts he is financially supported in kind to some extent by his father for his food, but he is also working and receives a regular weekly income from employment from which he contributes to his food and clothing needs. The Tribunal accepts that the applicant is substantially subsidised for his basic needs by these family arrangements. However, the Tribunal is not satisfied that the evidence before it supports a finding that he is wholly or substantially reliant on his father such that without this support he would be in a position where his overall basic needs for food, clothing and shelter though aided by others would not be met. Given the in-kind support for accommodation he receives from his aunt and uncle and his regular weekly income from employment, the Tribunal is not satisfied that the in-kind support for food provided by his father is greater than his reliance on these other persons or source of support as required by the definition of dependent in r. 1. 05A(a)(ii).

Given the evidence before the Tribunal that the applicant is engaged in employment as a cleaner, the Tribunal is not satisfied the applicant meets the alternative in subparagraph (b) of r.1.05A on the basis that he is incapacitated for work due to the total or partial loss of the his bodily or mental functions.
Therefore the Tribunal is not satisfied the applicant meets the requirements to be a ‘dependent child’ of his father at time of decision and he does not continue to be a member of his family unit for the purposes of cl. 835.231.
Given the above findings, the Tribunal has no option but to affirm the decision under review.
In reaching this decision the Tribunal acknowledges, and is sympathetic to, the difficult situation the applicant finds himself in, having been in Australia now for over 15 years, since he was 14 years old. As a result of the delayed processing of the application due to the global cap and queue system applicable to this visa class, the applicant has in effect become ineligible for the visa for reasons relating to his age and circumstances. The situation he now finds himself in arises because the application was made on his behalf when he was still a minor, and in that sense was outside of his control.
The applicant is urged to seek professional advice about his visa options going forward, including consideration of the ministerial guidelines relating to the Minister’s discretionary power under s 351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. On the available material before it, the Tribunal is not inclined to refer matter to the Minister for intervention, but notes that the applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Date of hearing: 4 March 2025
Migration Regulations 1994 - Extract
Member of the family unit has the meaning set out in reg 1.12, the relevant version of this definition, is
1.12    (1)    For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)    a spouse or de facto partner of the family head; or
(b)    a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)    a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
[(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]
(e)    a relative of the family head or of a spouse or de facto partner of the family head who:
(i)    does not have a spouse or de facto partner; and
(ii)    is usually resident in the family head's household; and
(iii)    is dependent on the family head.

‘Dependent child’ and ‘dependent’ have the following meanings set out in r.1.03 and 1.05A respectively,
dependent child
of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child 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 bodily or mental functions

Reg 1.05A    Dependent
1.05A    (1)    Subject to subregulation (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.