Pham (Migration)

[2024] AATA 2183

Pham (Migration) [2024] AATA 2183 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Thai Pham

CASE NUMBER:  1932825

HOME AFFAIRS REFERENCES:             CLF2016/37301

MEMBER:James Lambie

DATE:11 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 11 June 2024 at 12:02pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – member of the family unit – dependent child – non-appearance before the Tribunal – decision on the papers – employment – financial independence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cl 836.321

CASES
Huynh v MIMA [2006] FCAFC 122

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 on 4 November 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 June 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.321.

3. The delegate refused to grant the visa on the basis that cl 836.321 was not met because, at the time of decision, the applicant was not the dependent child of the main applicant (his mother).

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

   Hearing

5. On 13 May 2024, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 11 June 2024. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.

6. On 4 June 2024 and 10 June 2024, the Tribunal sent hearing reminders to the applicant by SMS to the telephone number provided in the application for review. There was no response to these messages.

7. The applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

8. Accordingly, this matter has been determined on the evidence available to the Tribunal

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the definition of ‘dependent child’ for the purposes of cl 836.231, by reference to Regs 1.03, 1.12 and 1.05A.

10. Cl 836.321 requires that:

    The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

11. Reg 1.03 provides that ‘member of the family unit’ has the meaning set out in Reg 1.12.  Reg 1.12(1) provides, relevantly, that a person is a member of the family unit of another person (‘the family head’) if the person is:

    …

    (b)a dependent child of the family head or of a spouse or de facto member of the family head; or

    (c)a dependent child of a dependent child of the family head or of a spouse or de facto member of the family head; or

    (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 household; and

    (iii)is dependent on the family head.

12. A dependent child is defined by Reg 1.03 as:

    dependent child, of a person, means the child or stepchild 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 bodily mental functions

13. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

14. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

15. The applicant was included in the main applicant’s declaration of members of the family unit who were aged 18 or over. The applicant was born on 29 July 1993, and was therefore aged over 18 at the time of application on 20 June 2016.

16. The applicant completed a dependency questionnaire and declaration on 20 October 2019. Relevantly, he declared that he relocated from Strathmore, Victoria, to the Gold Coast, Queensland, in February 2019. He also declared that he had been working and provided payslips for the period 30 June 2019 to 5 October 2019. He did not declare any financial support provided by the main applicant or any other person. The delegate concluded that this declaration demonstrated the applicant’s independence and that there was no suggestion or evidence of any reliance on any other person for financial support for his basic needs at the time of the decision.

17. Because the applicant did not appear before the Tribunal to give evidence or provide arguments, there is no material before the Tribunal to suggest that the delegate’s conclusion was incorrect. An assessment of the material on the Department’s file does not admit of any alternative conclusion. Accordingly, the applicant cannot satisfy the requirements of Regs 1.05(1)(a)(i) and 1.05(1)(a)(ii). There is no suggestion that the applicant is wholly or substantially dependent on the primary applicant due to an incapacity to work caused by total or partial loss of his bodily or mental functions for the purposes of Reg 1.05(1)(b).

18. Accordingly, the applicant does not meet Reg 1.05(1)(a) or Reg 1.05(1)(b) and therefore does not meet the definition of dependent within the meaning of Reg 1.05. Because he does not meet Reg1.05, he does not meet Reg 1.03. Consequently, he does not meet the definition of a member of the family unit within the meaning of Reg 1.12(1)(b) and cannot meet the requirements of cl 836.321.

19. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    James Lambie
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

    (a)the applicant is a relative of the resident; and

    (b)according to a certificate that meets the requirements of subregulation (2):

    (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

    (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

    (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

    (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

    (e)the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia; and

    (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

    (2)A certificate meets the requirements of this subregulation if:

    (a)it is a certificate:

    (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

    (ii)signed by the medical adviser who carried it out; or

    (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

    (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.