Sun (Migration)

[2020] AATA 5334

Sun (Migration) [2020] AATA 5334 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junjian Sun

CASE NUMBER:  1814473

HOME AFFAIRS REFERENCE(S):          CLF2017/47539

MEMBER:Linda Holub

DATE:14 October 2020

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

Statement made on 14 October 2020 at 3:18pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – dependent child of the primary visa applicant – continuing to be a member of the family unit – age requirement – applicant assisting family with English – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.05, 1.12; Schedule 2, cls 836.311, 836.321

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 2 May 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 July 2017. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the secondary 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 secondary criteria to be met include cl.836.311 and cl.836.321.

3. The delegate refused to grant the visa on the basis that clauses 836.311 and 836.321 were not met because the delegate was not satisfied the applicant is a dependent child of the primary visa applicant.

4. The applicant appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The hearing was held as a combined hearing with the applicant’s father who is the primary applicant for the Carer visa application.

5. The applicant was represented in relation to the review by his registered migration agent who attended the hearing as did the migration agent’s assistant. The same registered migration agent is assisting the primary applicant.

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

RELEVANT LAW

1. Clause 836.311 of Schedule 2 to the Regulations requires that, at time of application, the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 836.21.

2. Clause 836.321 requires that at time of decision 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 (Carer (Residence)) visa.

3. The applicant claims that they are the child of the primary applicant. In order for the applicant to meet the definition of “member of the family unit” in regulation 1.12, the applicant must meet the age and dependency requirements.

CONSIDERATION OF CLAIMS AND EVIDENCE

10) The issue in the present case is whether the applicant is a member of the family unit of the primary visa applicant.

11) The applicant is a Chinese national born in June 1994. He is the son of the primary visa applicant seeking a Subclass 836 (Carer) visa.

12) In his application, the applicant wrote that his date of birth is 3 June 1994. A copy of his passport submitted as part of the application process confirms his date of birth.

13) In the Department’s Decision Record which was a separate decision in respect of the applicant, the delegate recorded that in order for the applicant to meet the definition of “member of the family unit” in regulation 1.12, the applicant must meet the age requirement. The applicant was born on 3 June 1994, and was aged 23 years, one month and three days on the date of application lodgement. Therefore, the delegate found that the applicant does not meet the requirements of regulation 1.12(2)(b)(i) and 1.12(2)(b)(ii). As the applicant does not meet the requirements of regulation 1.12(2)(b)(i) and 1.12(2)(b) (ii), the delegate assessed the applicant against regulation 1.12(2)(b)(iii). Regulation 1.12(2)(b)(iii) states that the applicant has turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head as set out in regulation 1.05A(1)(b). The definition of “dependent” set out in regulation 1.05A(1)(b) requires that the applicant is wholly or substantially reliant on the other person for financial support because the applicant is incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions. The decision notes that no claims were submitted that the applicant is incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions. Therefore, the delegate found that the applicant does not meet the requirements of regulation 1.05A(1)(b).

14) On 2 October 2020 the Tribunal was provided with a submission stating that the applicant’s inclusion in the application for the subclass 836 visa was affected by amendments in November 2016 to the definition of member of the family unit in reg. 1.12 of the Migration Regulations. It states that he turned 23 on 3 June 2017 and that by the time the application was lodged on 6 July 2017 he was over 23. It states that the applicant does not dispute that his visa application could not succeed. The submission states that there was no conscious decision to lodge an invalid application inappropriately including the son and that instead it was simply a misadventure.

15) The submission states that it is hoped that should the application of his parents succeed and that he may be the subject of a request to the Minister for a suitable visa for him. No request was made to the Tribunal that the matter be referred to the Minister.

16) The last sentence of the pre-hearing submission pertaining to the applicant states that the applicant understands that the Tribunal has no discretion to amend his date of application and therefore his own visa application must fail. At hearing the Tribunal referred to this statement and asked the applicant to confirm he is in agreement with the statement. He responded in the affirmative.

17) The applicant stated that despite the fact he did not meet the age criterion, he did not withdraw his application because he was studying. He also referred to his parents seeking a Carer visa to care for his grandmother. He stated that his parents do not speak English and he needs to help them to look after matters related to English

18) The Tribunal provided the applicant with an opportunity to address anything further in relation to his eligibility. He confirmed his understanding the Tribunal has no discretion but to affirm the Department’s decision and made no other comment.

FINDINGS

19) The applicant was born in June 1994 and was aged just over 23 years on the date the application was lodged. The Tribunal is satisfied the applicant does not meet the requirements of regulation 1.12(2)(b)(i) and 1.12(2)(b)(ii).

20) No evidence was submitted to the Department nor during the course of the review that the applicant is wholly or substantially reliant on his father for financial support because the is incapacitated for work due to the total or partial loss of his bodily or mental functions at the time of application and at the time of decision. There was no evidence that the applicant meets regulation 1.05A(1)(b) and therefore he does not meet regulation1.12(2)(b)(iii). On that basis, the Tribunal is satisfied that the applicant does not meet regulations 1.05A(1)(b) and 1.12(b)(iii).

21) No claims were made nor was any evidence submitted to suggest that the applicant meets the primary criteria for the Subclass 836 visa.

22) For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa as he does not satisfy clauses 836.311 and 836.321. In respect of the other visa subclasses there is no material before the Tribunal which would permit a finding that the applicant meets prescribed criteria for the visa sought.

DECISION

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

Linda Holub
Member