Tjahja (Migration)

[2023] AATA 1496

Tjahja (Migration) [2023] AATA 1496 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Florian Tjahja

CASE NUMBER:  2011781

HOME AFFAIRS REFERENCE(S):          BCC2019/5102863

MEMBER:Nicola Findson

DATE:24 May 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a 189 -  Skilled - Independent visa:

·189.311.

Statement made on 24 May 2023 at 2:28pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – member of the family unit – wholly or substantially reliant – casual employment – gap in studies – family illness – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5(1), 5C, 65
Migration Regulations 1994, Schedule 2, cl 189.311; rr 1.03, 1.05, 1.12

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 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Master Tjahja, was born on 19 November 2001. He applied for the visa on 11 October 2019 (then aged 17 years) as a dependent child of his father, who was the primary visa applicant. On 26 June 2020, Subclass 189 visas were granted to Master Tjahja’s parents, Mr Rudijanta Tjahja and Mrs Lucie Tjahja. However, on the same date, the delegate refused to grant Master Tjahja’s visa on the basis that the requirements of cl.189.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) were not met, because the delegate was not satisfied Master Tjahja was a member of the family unit of his father, the holder of a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

3. Subsection 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 that ‘member of the family unit’ has the meaning set out in Regulation 1.12, which includes a child of the family head or of a spouse or de facto partner of the family head and, who has turned 18, but has not turned 23, and is ‘dependent’ within the meaning of r.1.05A on the family head or on the spouse or de facto partner of the family head, or, who 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.

4. Regulation 1.05A prescribes clear objective criteria to be met for dependence to be established.  First, r.1.05A (1) stipulates that the person who is claiming to be dependent (the ‘first person’) must be, at the time at which consideration is being given, ‘wholly or substantially’ reliant on the other person.  Second, that degree of reliance is required to have been for a substantial period immediately before that time.  Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: viz: food, shelter and clothing.  Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs:  Huynh v MIMA [2006] FCAFC 122. Alternatively, r.1.05A(1)(b) sets out that 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.

5. Notwithstanding information provided to the Department by the applicant that he was residing with his parents and engaged in study on a full-time basis, it was the view of the delegate that Master Tjahja had not demonstrated that he was dependent on his father, as the primary visa holder, as defined by r.1.05A.

6. On 17 July 2020, Master Tjahja applied to the Tribunal for review of the delegate’s refusal decision. The delegate’s decision record accompanied the review application.

7. The applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Master Tjahja’s parents, Mr Rudijanta Tjahja and Mrs Lucie Tjahja.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether Master Tjahja satisfies cl.189.311 of Schedule 2 to the Regulations. Pursuant to cl.189.311, at the time of decision, the secondary applicant must be a member of the family unit of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

10. On the basis of information available to it, including a New Zealand birth certificate, the Tribunal is satisfied that Master Tjahja is the ‘child’ as defined at s 5CA of the Act of the family head, Mr Tjahja and his wife, Mrs Tjahja.

11. When considering whether the applicant is dependent on their parent as required under reg1.05A, 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 the applicant’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.

12. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

13. At the hearing, Master Tjahja told the Tribunal that he had arrived with his family – his parents and older sister (who the Tribunal notes was not included in the visa application) – in 2010, as a New Zealand citizen and holder of a Special Category (Subclass 444) visa.  He said he completed his primary and secondary schooling in Australia at the end of 2019, and immediately enrolled in an OnTrack Program at Murdoch University in Western Australia as he aspired to complete further study at University, but had not qualified for direct entry. Master Tjahja told the Tribunal that late in his last year of high school, he started working, on a casual basis, at McDonalds. He explained, and written material supports, that in about mid-2020, when his father became seriously ill and Covid-19 restrictions were implemented, he struggled to focus on his study and eventually abandoned his course at Murdoch University. He said that in Semester two of 2020, he enrolled in a TAFE course (Game Design) but realised after a few weeks that he was not going to enjoy it, so also abandoned that pathway.  He told the Tribunal that in 2021, while considering his vocation options, he continued working on a casual basis at McDonalds and also obtained casual work packing fruit and vegetables.

14. Master Tjahja told the Tribunal that he commenced a three-year Barber Apprenticeship at the beginning of 2022.  He explained that the apprenticeship involves him attending TAFE classes as well as working for a Barber outside of those classes.  He said that he is currently working, as an apprentice, for Bo’s Barber in Mount Hawthorn.  When asked what he spends his apprentice wage on, Master Tjahja indicated that the money he earns largely pays for his car and its running costs, including fuel and insurance. 

15. Master Tjahja told the Tribunal that he had always lived with his parents, and relied on them to provide his basic needs.  He told the Tribunal that he had never earned enough from his casual work to adequately support his own food, shelter and clothing.

16. Mr and Mrs Tjahja gave compelling evidence about the uncertainty associated with their son’s refusal decision and the impact on the family if there was an unfavourable outcome at review. They said that their family had come to Australia to make it their home several years ago.  Mr Tjahja has since 2013, worked for a Camera Distributor business and Mrs Tjahja works as a Pathology Collector. Mr and Mrs Tjahja confirmed to the Tribunal that Master Tjahja has always resided with them in the family home, and that he has continuously been supported by them for food, clothing and shelter.  They told the Tribunal that their older daughter was not included in the visa application because they recognised, at the time, that she was no longer a dependent child.  They told the Tribunal that she had completed a Journalism and Communications Degree at Murdoch University; was living independently; and was now working, full-time, in a Communications and Marketing role.  They indicated that the thought of being separated from their son, who relied on them both emotionally as well as financially, worried them a great deal.

17. Following the hearing, Master Tjahja provided the Tribunal with copies of his recent bank statements, showing his weekly wage deposits.  He also provided Notices of Assessment issued to him by the Australian Taxation Office for the years ended 30 June 2020, 2021 and 2022, showing a taxable income in each financial year of $4,669, $13,002 and $20,562 respectively.

18. In considering the issue of dependency, the Tribunal accepts the credible oral and written evidence before it that although Master Tjahja has previously undertaken work on casual basis as a student, and is currently undertaking an apprenticeship, he has never worked on a full-time basis.  The Tribunal is satisfied, on the basis of the financial information before it, that Master Tjahja has never earned a sufficient amount of money to cover his basic needs. The Tribunal accepts the evidence before it that Master Tjahja’s father, the primary visa holder, and his mother have always taken responsibility for providing him a place to live, food and for paying for most of the expenses he incurs in respect of his daily living and his education.  The Tribunal is therefore satisfied on the evidence that Master Tjahja has always, and continues to be, ‘wholly or substantially’ reliant on his parents for financial support for his basis needs of food, shelter and clothing, and that this reliance is greater than his reliance on any other source of support.

19. Accordingly, the applicant is the dependent child of Mr Rudijanto Tjahja and cl 189.311 is met.

    DECISION

20. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a 189 -  Skilled - Independent visa:

    ·cl 189.311.

    Nicola Findson
    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.

    …