Vaddiparthi (Migration)

[2021] AATA 1027

Vaddiparthi (Migration) [2021] AATA 1027 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Vaishnavi Vaddiparthi

CASE NUMBER:  1904623

HOME AFFAIRS REFERENCE(S):          BCC2017/2593449

MEMBER:Catherine Carney-Orsborn

DATE:29 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled – Independent (New Zealand) (Permanent) (Class SI) visa.

Statement made on 29 March 2021 at 11:36am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – member of family unit – secondary applicant child over 23 must be reliant on primary applicant because of incapacitation for work – financially supported but no evidence of incapacitation – no provision to consider compelling or compassionate reasons – decision under review affirmed

MIGRATION
Migration Act 1959 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cl 189.311

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 27 February 2019 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) (New Zealand) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied as a member of the family unit of an applicant who met the primary criteria.

2. The criteria for the grant of a Subclass 189 visa as a member of the family unit of an applicant who met the primary criteria is set out in Part 189.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy cl.189.311 because at the time of decision she did not satisfy subregulation 1.05A(1)(b).

3. The applicant appeared before the Tribunal on 23 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and father (the primary applicant).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant can satisfy the secondary criteria as a member of the family unit of a person who satisfies the criteria for the grant of the visa.

6. The relevant criteria are to be satisfied at the time of decision and is set out below.

   189.311

   The applicant:

   (a) is 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; and

   (b) made a combined application with that person.

7. Subsection 5(1) of the Act provides member of the family unit of a person has the meaning given by the Regulations made for the purposes of this definition. Regulation 1.03 provides member of the family unit has the meaning set out in Regulation 1.12.

8. Subregulation 1.12(2) relevantly provides that:

   Reg 1.12

   (2) A person is a member of the family unit of another person (the family head) if the person:

   (a) is a spouse or de facto partner of the family head; or

   (b) is 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 facto 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 paragraph (b).

9. Regulation 1.03 provides dependent has the meaning set out in Regulation 1.05A

   Subregulation 1.05A(1)(b) relevantly provides that:

   (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.

   Evidence

10. The applicant’s parent is the primary applicant and satisfied the criteria for the grant of the skilled subclass 189 visa.  The applicant is seeking to satisfy the secondary criteria as a member of the family unit of her parent.

11. The applicant’s passport was supplied to the Department.  The applicant’s birth certificate shows she was born on 8 October 1994.  The applicant turned 23 years of age on 8 October 2017.

12. The Tribunal’s task is to assess whether the applicant can satisfy the criteria in sub regulation 1.05A(1)(b).  In order to meet that criteria, the applicant would have to show that she was incapacitated for work due to the total or partial loss of her bodily or mental functions and as a result was substantially reliant on the primary applicant for financial support.

13. The applicant provided statements from herself and her parents.  The applicant provided evidence of her education in Australia.  The Tribunal is satisfied that the applicant has completed tertiary education.  The applicant’s evidence is that she is now working.

14. A large amount of evidence was provided to show that the applicant is financially reliant on the primary applicant. 

15. The Tribunal accepts that the applicant is financially supported by the primary applicant (the family head).

16. No evidence was provided to show that she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

17. The applicant’s parents requested the Tribunal to consider compelling and compassionate reasons to grant the visa.  There is nothing in the legislation to indicate that the Tribunal can consider those circumstances to grant the visa. 

18. The evidence before the Tribunal is that the applicant was over 23 years of age at the time of decision.  There is nothing to indicate that she is incapacitated for work and can satisfy regulation 1.05A(1)(b) as set out above.

19. The Tribunal, while sympathetic to the applicant wanting to be with her family in Australia has no option on the evidence before it but to find she does not satisfy 1.05A(1)(b) and therefore does not satisfy the criteria set out in cl.189.311.  

20. The Tribunal finds that the applicant does not satisfy cl.189.311.

21. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Skilled – Independent (New Zealand) (Permanent) (Class SI) visa.

    Catherine Carney-Orsborn
    Member