1911988 (Migration)

[2022] AATA 2345

1911988 (Migration) [2022] AATA 2345 (11 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr John William Galloway (MARN: 9254439)

CASE NUMBER:  1911988

MEMBER:Margie Bourke

DATE:11 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 11 May 2022 at 10:29am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – applicant over 18 – criteria relating to study not met – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 101.211, 101.221

CASES
Huynh v MIMA [2006] FCAFC 122
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 9 April 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 November 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.211 which requires the visa applicant is a dependent child of either an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and has not turned 25 at the time of application, or meets the definition of dependent child in r.1.03(b)(ii). They also include cl.101.213 which has additional requirements for applicants that have turned 18 at the time of application which relate to the marital status, employment and study of the visa applicant at the time of application. These criteria are required to continue to be satisfied at the time of decision pursuant to cl.101.221.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant met the definition of dependent child for the purposes of cl.101.211.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, and the visa applicant who would attend via telephone or video connection from overseas, and to the nature of the review, being a dependent child visa. The Tribunal accepted the hearing would not involve a large amount of documents to be put to the review applicant during the course of the hearing. The Tribunal considered that if the hearing was conducted by video this would give the review applicant and the visa applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and properly assess the evidence before it. The Tribunal was aware of the lengthy delay between the application for review and the matter being constituted to the member, and considered any further delay should be avoided. The availability of in-person hearings was restricted due to the pandemic. For all these reasons the Tribunal considered this was an appropriate matter to be conducted by video hearing, and the review applicant was invited to attend the hearing by video.

6. A successful video test dial was conducted by the Tribunal on 23 March 2022. On the day of the hearing the review applicant experienced connection issues. The Tribunal was advised this was not unusual given his location. The review applicant attended the hearing via the team’s application with an audio connection only. However there was a significant time lag and the review applicant had some difficulty participating in the hearing. The Tribunal Officer arranged for the review applicant to attend the hearing via mobile phone connection. The review applicant and his representative indicated that since connection from his location was consistently poor, he did not seek a postponement of the hearing and was happy to attend the hearing by mobile phone, and not participate on a visual basis. There was no difficulty for connection, and the quality of the audio was good (although sometimes there were some background noise) when the review applicant attended the hearing via mobile phone and not through the Microsoft teams. For this reason, the hearing proceeded with the review applicant attending by his mobile phone.

7. The review applicant appeared before the Tribunal on 30 March 2022 by mobile phone to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who attended by video from the Philippines.

8. A resumed hearing was scheduled on 10 May 2022, to discuss submissions received after the first hearing, and to further canvas matters discussed in the first hearing. The review applicant and visa applicant attended the second hearing by telephone.

9. The review applicant was represented in relation to the review. The representative attended the Tribunal hearings by video. The Tribunal hearings were conducted with the assistance of an interpreter in the Tagalog and English languages. The interpreter attended the hearings by audio connection only.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The first issue to be determined in this case, is whether the visa applicant meets the requirements for dependent child. This was the criterion the delegate identified in the Department’s decision record dated 9 April 2019 as the criterion not met by the applicant at the time of application. It is noted that the delegate did not assess whether the applicant met any of the remaining criteria.

12. At the conclusion of the hearing the Tribunal granted the request of the representative to allow 14 days to provide further submissions. At the request of the review applicant, the Tribunal granted a further 14 day extension of time for the review applicant to provide the information or documents. The review applicant requested a second extension until 9 or 10 May 2022, and the Tribunal granted this extension until 9 May 2022, the day before the second scheduled hearing. The review applicant had indicated he may have evidence of further money transmissions to the visa applicant which would be relevant to the considerations in this review, and the Tribunal indicated these would be of assistance to its consideration of whether the visa applicant met the requirements of cl.101.211. The review applicant provided evidence of further money transmissions including further receipts and records of transactions to the Tribunal by 9 May 2022.

13. At the conclusion of the first hearing, the Tribunal indicated it had not made up its mind in relation to whether the visa applicant met the requirements of cl.101.211, and needed to consider the evidence, and wait for the further information or evidence to be provided. During the first hearing, the Tribunal raised with the representative in the hearing that there are other time of application criteria that applicants over the age of 18 were required to meet. The Tribunal discussed if the evidence indicated the visa applicant did not meet this other criteria, it was inappropriate for the Tribunal to remit the matter back to the Department on the grounds the visa applicant met one subclause, knowing he did not meet another subclause. The representative requested time to make submissions as to whether the visa applicant met the other time of application criteria. The submissions were received by the Tribunal from the representative on 9 May 2022

    Dependent child criteria

14. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

    Dependent child

15. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. 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.

16. 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].

17. I am satisfied that the review applicant is an Australian permanent resident, and was the holder of a permanent visa at the time of application and continues to be so at the time of this decision.

18. I am satisfied based on the birth certificate of the visa applicant that he is the natural and biological child of the review applicant. I am satisfied the applicant was born in [year], and was aged [age] years of age at the time of application on 14 November 2017.

19. I am satisfied based on the employment history of the visa applicant and the evidence provided in the hearing, that the visa applicant is not partially or totally incapacitated for work due to the loss of bodily or mental functions. I accept that the visa applicant does not claim to, and does not meet, the requirements of dependent child within the meaning of r.1.03(b)(ii).

20. I am satisfied that the visa applicant graduated from school in 2013, which follows the completion of three years of academic study in secondary school. I am satisfied that the applicant then undertook a further 12 months of vocational, or training in a maritime course in 2014. I accept the evidence of the visa applicant that he was required to sign a contract of employment for his traineeship on [Ship 1]. I am satisfied that the contract was signed on 11 November 2013, that the visa applicant boarded the ship late January 2014, and disembarked in early February 2015.

21. I am satisfied that the visa applicant subsequently was employed on [Ship 2] for a nine month period, that he signed that employment contract on 29 February 2016, that he boarded the ship in April 2016 and disembarked in February 2017.

22. I am satisfied that subsequently the visa applicant obtained further employment with another company, [Ship 3] for a period of nine months and started that contract on board on 6 April 2018 and disembarked on 20 December 2018.

23. I accept that when the visa applicant was employed by the shipping companies, he stayed on board for the duration of his contract and his accommodation was therefore provided by his employers. I accept the evidence of the visa applicant that his food and work uniforms were provided by the shipping companies.

24. I am satisfied that the visa applicant was interviewed by telephone in November 2017 by an officer of the Department. I accept the evidence of the visa applicant that he advised the Department in the interview that he had been employed as a seafarer for a period of one year and 10 months. I accept the evidence of the visa applicant in the hearing that when the visa applicant made this statement in the interview, he was discussing his two employment contracts on [Ship 1 and Ship 2], and that he did not work as a seafarer in between these two contracts.

25. I accept the evidence of the visa applicant that when he was not working on board ship he lived in his father’s house. I accept that after his father, his father’s wife and daughter departed the Philippines, the visa applicant remained in his father’s house on his own. I am satisfied the review applicant (the visa applicant’s father) provided the visa applicant with financial support to pay the utility bills and other household expenses. I accept that when the visa applicant was at sea, the review applicant sent money to his wife’s sister to pay the household utility bills but on an ad hoc basis.

26. I accept the evidence of the visa applicant that after he had ceased trying to obtain work as a seafarer, and working full-time as a seafarer for contracted periods, he obtained work in the Philippines as a food delivery courier and that he would do this on a part-time basis 2 to 3 hours a day. I accept the evidence of the visa applicant that when he was working he used his income to pay for food and gas for his motorcycle. I accept the evidence of the visa applicant that after he returned from his employment on [Ship 1 and Ship 2] and was waiting for a further contract, he was unemployed for a period of time.

27. I have considered the evidence of the money transfers that has been provided by the review applicant as evidence of the financial support he has provided to the visa applicant. The review applicant provided a list of transfer receipts to the Tribunal prior to the hearing on 30 March 2022. The transfer receipts received prior to the hearing included seven money transfers records [to] the visa applicant as follows: – 19 March 2017, $1000; 8 May 2017, $1929.27; 9 July 2017, $212.24; 26 July 2017, $254.59; 15 August 2017, $139.06; 16 August 2017, $139.47; and 31 August 2017, $302.89. These receipts referred to the amount in both Australian dollars and Philippine currency, and I have referred to the Australian dollar amount.  The review applicant also provided evidence to the Tribunal of other financial support he provided to the visa applicant. The review applicant provided a statement of a history of money transfers sent [to] the visa applicant. This statement included a record of eight money transfers between the dates of 24 May 2019 and 1 August 2019. The review applicant provided a collection of eight receipts of transfers of money to the visa applicant between the period of 11 November 2021 to 7 March 2022. These receipts do not indicate which service was used to provide the international money transfers.

28. After the hearing the review applicant provided copies of a further 22 transfer receipts sent from the review applicant to the visa applicant between the dates of 30 January 2019 and 17 October 2021, which involved amounts usually in (Australian currency) the hundreds but from as little as $56.77 and up to $2509.99. The review applicant also provided a statement that confirmed there had been transfers between the dates of 24 May 2019 and 1 August 2019, and 11 further receipts between the dates of 11 November 2021 and 7 March 2022 in relation to money transfers from the review applicant to the visa applicant. The review applicant also provided a statement [which] recorded 29 transfers from the review applicant to the visa applicant from 19 March 2017 to 6 April 2018. The Tribunal accepts that some of these records are duplicitous with the initial copies of the transfer records the review applicant provided to the Tribunal prior to the hearing.

29. The Tribunal is satisfied based on the evidence of financial support provided by the review applicant to the visa applicant, that the review applicant has provided financial support to his son since early March 2017, which is consistent with the visa applicant disembarking from [Ship 2] in February 2017, until April 2018 when the visa applicant obtained another position on [Ship 3] as a seafarer. The Tribunal is satisfied further that the review applicant continued to provide financial support to the visa applicant after he disembarked in December 2018 and did not obtain further employment as a seafarer from that time.

30. The Tribunal is satisfied that when the visa applicant was not employed on board a ship he resided in his father’s house, and received financial support from his father. The Tribunal is satisfied that after the visa applicant completed his contract on [Ship 3] in December 2018, he was sometimes able to obtain some part-time work of 2 to 3 hours, and he spent the money earned on gas for his motorbike and some food. The Tribunal accepts the income from this part-time job was minimal, and the visa applicant has consistently relied on his father for financial support for most of his basic needs since December 2018. The Tribunal is satisfied that during the time that the visa applicant was not employed on board a ship his father provided his accommodation, namely the house in which he resided, and money for all his expenses excluding some money for food.

31. The Tribunal has assessed whether the visa applicant was dependent upon his father within the meaning of r.1.05A. For the purposes of the assessment the Tribunal considered that 12 months prior to the relevant time is sufficient to meet the meaning of “substantial period”. The time of application was 14 November 2017. The Tribunal has therefore considered the 12 month period of 15 November 2016 to 14 November 2017.

32. The Tribunal is satisfied that the visa applicant was on board [Ship 2] from 15 November 2016 until the first week of February 2017. During this time the Tribunal is satisfied that the visa applicant’s basic needs for food, clothing and shelter were met by the employer company. The Tribunal is satisfied that the visa applicant lived on board the ship, and his food and work uniforms were provided by the employer shipping company. The Tribunal accepts the evidence of the visa applicant that he did not purchase clothes during this time, but did bring some personal items with him.

33. The Tribunal is satisfied that from the period of mid-March to 14 November 2017 the visa applicant resided at his father’s home in the Philippines. The Tribunal accepts that this home is owned by the review applicant, and the expenses of the home, including utility bills, were funded by the financial support of the review applicant. The Tribunal accepts that no one else was residing at this home during the time that the visa applicant was living there in 2017. The Tribunal is satisfied that the review applicant provided financial support for the visa applicant to cover his living expenses, and accepts there is no evidence that the visa applicant obtained any employment from March to November 2017. For nine months of the twelve month period immediately prior to the time of application, I am satisfied that the visa applicant was reliant on the review applicant for financial support to meet his basic needs of food, clothing and shelter. Considering the twelve month period overall, the Tribunal is satisfied that the visa applicant was substantially reliant upon the review applicant for financial support to meet his basic needs of food, clothing and shelter.

34. The Tribunal is satisfied that for the 12 month period from May 2021 to May 2022, the visa applicant has been residing in his father’s home, and all expenses of that household have been provided by his father. The Tribunal is satisfied that for that 12 month period, the review applicant has provided the visa applicant with financial support to meet his living expenses, including the costs of his basic needs of food and clothing. The Tribunal is satisfied that on occasion when the visa applicant can obtain some part-time delivery work he earns a small amount of money, which he uses to pay for gas for his motorcycle and purchases some food. The Tribunal is satisfied that the visa applicant is substantially reliant on his father for financial support to meet the basic needs of food clothing and shelter for the 12 month period prior to the time of this decision.

1. I am satisfied therefore that at the time of application, namely 14 November 2017, and for a substantial period immediately before that time, the visa applicant has been wholly or substantially reliant on his father, the review applicant, for financial support to meet his basic needs for food, clothing and shelter. Further I am satisfied that the visa applicant’s reliance on his father is greater then any reliance by the visa applicant on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter at the time of application.

2. I am satisfied tat the time of decision, namely May 2022, and for a substantial period immediately before that time, the visa applicant has been wholly or substantially reliant on his father, the review applicant for financial support to meet his basic needs for food, clothing and shelter. Further I am satisfied that the visa applicant’s reliance on his father is greater than any reliance by the visa applicant on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter at the time of decision.

3. Therefore, the Tribunal is satisfied that the visa applicant is the dependent child of the review applicant within the meaning of r.1.05A at the time of application, and continues to be the dependent child at the time of decision. I am satisfied, for the reasons given above that the visa applicant is the dependent child of the holder of a permanent Australian visa and therefore meets the requirements of cl.101.211(1)(a)(ii).

4. I am satisfied based on the birth certificate of the visa applicant, that at the time of application he had not turned 25 and therefore meets the requirements of cl.101.211(1)(b).

5. I am satisfied based on the birth certificate of the visa applicant and the evidence of the visa applicant and the review applicant, that the visa applicant is the natural child of the review applicant, who is the holder of a permanent Australian visa, and therefore the visa applicant meets the requirements of cl.101.211(1)(c)(i)(A).

6. Therefore, I find that the visa applicant meets the requirements of cl.101.211 at the time of application.

7. As the visa applicant had turned 18 at the time of application, at the time of decision the requirements of cl.101.221(2) apply. I am satisfied that the visa applicant does not continue to meet the requirements of cl.101.211 criterion only because the visa applicant has turned 25.

8. Accordingly I find that the visa applicant meets the requirements of cl.101.221(2)(a)(ii) at the time of decision.

   Criteria for applicants over 18

9. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b). In the Departments decision record, the delegate had not considered this provision, as the delegate had found the visa applicant did not meet the requirements of cl.101.211. As stated above, the Tribunal has found that the visa applicant does meet the requirements of cl.101.211, but it is incumbent on the Tribunal to consider, given the evidence before it, whether the visa applicant meets the criterion for cl.101.213.

10. I discussed the requirements of cl.101.213 with the review applicant and the representative in the first hearing on 30 March 2022. After hearing oral evidence from the review applicant and the visa applicant, the Tribunal indicated to the representative and the review applicant, that it could not remit the matter back to the Department if it was aware the visa applicant did not meet other criteria for the visa. The Tribunal drew the representative’s attention to the case of Opoku-Ware v Minister for Immigration [2015] FCCA 1638, and gave the representative the citation for this case. The Tribunal invited the review applicant and his representative to provide submissions after the hearing addressing the criterion of cl.101.213, as the Tribunal wished to ensure the review applicant had sufficient time to consider the requirements of this subclause, and, if he wished, to have the opportunity to provide information or evidence to the Tribunal.

    Relationship status and history

11. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b).

12. I am satisfied based on the evidence before the Tribunal that the visa applicant was not engaged to be married, and did not have a spouse or de facto partner at the time of application, or at the time of decision.

13. Accordingly, I am satisfied the visa applicant meets the requirements of cl 101.213(1)(a), and continues to meet these requirements at the time of decision.

    Not engaged in full-time work

14. At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b).

15. I am satisfied based on the evidence before the Tribunal that at the time of application, and at the time of decision, the visa applicant was not engaged in full-time work. I accept the evidence of the visa applicant that he had had periods of full-time work when he was employed as a seafarer. I accept the evidence of the applicant that he has obtained some part-time work.

16. Accordingly, I am satisfied the visa applicant meets the requirements of cl 101.213(1)(b), and continues to meet these requirements at the time of decision.

    Full-time study (or incapacitated for work)

17. At the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl 101.213(1)(c).

18. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl 101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 101.213(2).

19. Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

20. I am satisfied based on the evidence of the review applicant and the visa applicant that the visa applicant is not incapacitated for work, and that he is healthy and well. I accept that he does not have a permanent job at the present time because he cannot obtain one. I therefore find that the visa applicant is not incapacitated for work due to the total or partial loss of bodily or mental functions. I am satisfied that the review applicant is not a dependent child within the meaning of r.1.03(b)(ii), and therefore the requirements of cl.101.213(1)(c) apply.

21. I accept the evidence of the visa applicant that he completed his secondary school and graduated in 2013. I accept that he undertook a Maritime course which included his training on board the ship [Ship 1] which he boarded in January 2014 and disembarked in February 2015. I accept that he undertook some training courses in relation to his seafaring qualifications.

22. I accept the visa applicant’s evidence that since he disembarked [Ship 3] in December 2018 he has not studied, trained or undertaken any study or training. I accept the evidence before me that the visa applicant is not studying at the time of this decision, and has not been studying for at least the last three years. I am satisfied that at the time of this decision the visa applicant is not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

23. Without proceeding to make any time of application requirements in relation to cl.101.213, the Tribunal finds that the visa applicant does not continue to satisfy the criterion in  cl.101.213 at the time of decision, and therefore the Tribunal finds the visa applicant cannot satisfy the requirements of cl.101.221(2)(b).

24. At the time of decision, cl 101.213 does not continue to be met. Accordingly, the visa applicant does not meet the requirements of cl 101.221(2)(b).

25. For this reason the Tribunal affirms the decision under review.

26. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Margie Bourke
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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’s or step-child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (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.

    …