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,…

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 Lopina (Migration)

Details

AGLC: Lopina (Migration) [2025] ARTA 429
Case: [2025] ARTA 429
Decision Date: 18 March 2025

CaseChat Overview and Summary

In the matter of Lopina (Migration) the applicant, a dependent child of the primary visa applicant, sought to appeal a decision by the delegate of the Minister for Home Affairs to refuse his application for a Subclass 835 (Remaining Relative) visa. The applicant’s visa application was refused on the basis that he did not meet the definition of a dependent child under cl.835.321 of the Migration Regulations. The Tribunal was required to consider whether the applicant met the requirements of cl.835.321, which includes being reliant on the primary visa holder for financial support to meet basic needs. The Tribunal concluded 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. The Tribunal considered the applicant's employment income, which was limited, and found that the applicant was not wholly or substantially reliant on his father for financial support to meet his basic needs. The Tribunal also considered the evidence provided by the applicant and found that it did not support the applicant's claim of financial dependency on his father. The Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 835 (Remaining Relative) visa. The Tribunal held that the applicant did not meet the definition of a dependent child under cl.835.321 of the Migration Regulations, as he was not wholly or substantially reliant on his father for financial support to meet his basic needs. The Tribunal considered the evidence provided by the applicant and found that it did not support the applicant's claim of financial dependency on his father. The Tribunal also noted that the applicant had the opportunity to provide further evidence and submissions but chose not to do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].