2112196 (Migration) - [2024] AATA 1222

2112196 (Migration) [2024] AATA 1222 (10 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2112196
MEMBER:R. Skaros
DATE:10 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional) visa.

Statement made on 10 April 2024 at 4:59pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – member of the family unit – child of the family head – dependency requirements – substantial reliance for financial support – incapacitated for work – mental health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cl 188.311
CASES
Annas v Director-General of Social Services (1985) 8 FCR 49
Cole v MIBP [2018] FCAFC 66
Re Panke and Director-General of Social Services (1981) 4 ALD 179
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

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 Business Skills (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 March 2019. The delegate refused to grant the visa on 23 August 2021 on the basis that the applicant did not satisfy the requirements of cl 188.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 188.311 relevantly requires the applicant to be a member of the family unit of [Mr A] (his father) at the time of decision.
The applicant appeared before the Tribunal by videoconference on 19 March 2024 to give evidence and present arguments. The Tribunal notes that in the response to hearing form the applicant provided details of his brother as a witness in the proceedings. The applicant’s brother, however, did not appear before the Tribunal at the scheduled hearing. When asked about his brother, the applicant said his brother would not be appearing because they had provided the response to hearing form too late. The Tribunal explained to the applicant that it was not too late to take evidence from his brother and that arrangements could be made for his brother to give evidence by telephone. Later in the hearing, the applicant said his brother would not be able to give evidence because he was at work. The applicant was given an opportunity to speak with his brother about appearing by telephone, however, he indicated that he did not wish to do so.
The Tribunal has considered the evidence before and, for the following reasons, has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant is a member of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2112196 (Migration)

Details

AGLC: 2112196 (Migration) [2024] AATA 1222
Case: [2024] AATA 1222
Decision Date: 10 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Provisional) visa (Subclass 188). The applicant sought to be recognised as a member of the family unit of the primary applicant, his father. The Administrative Appeals Tribunal was required to determine whether the applicant met the definition of a "member of the family unit" under the Migration Regulations 1994, specifically in relation to dependency requirements for a child over 23 years of age.

The central legal issue before the Tribunal was whether the applicant, who was over 23 years of age, was "wholly or substantially reliant" on his father for financial support due to being "incapacitated for work" due to mental health issues, as stipulated by regulation 1.12(2)(b)(iii) and regulation 1.05A(1)(b) of the Migration Regulations. This required an assessment of the applicant's reliance on his father for financial support and the extent to which his mental health condition rendered him incapacitated for work.

The Tribunal considered the evidence presented and applied the relevant legislative definitions. It found that while the applicant had mental health issues, the evidence did not establish that he was wholly or substantially reliant on his father for financial support due to being incapacitated for work. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for being a member of the family unit under the relevant regulations.

Accordingly, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Business Skills (Provisional) visa as a member of the family unit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has considered the evidence before and, for the following reasons, has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant is a member of the family unit, as defined in regs 1.12(2) and 1.05A(1)(b), of his father (who is the primary applicant for the visa) and satisfies cl 188.311. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:·the spouse or de facto partner of the family head;·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild). In this instance, the applicant is claiming to be a member of the family unit (child) of his father. A person is a member of the family unit of the family head if they are the 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). The term ‘child of a person’ is defined in s 5CA of the Act and the term ‘step-child’ is defined in reg 1.03 of the Regulations. The child or step-child of the family head or of a spouse or de facto partner of the family head must meet certain dependency requirements. Essentially, the child or step-child must not be engaged, married or in a de facto relationship, have not turned 18, or if aged between 18 and 22 years of age they must be ‘dependent’ within the meaning of reg 1.05A, or if 23 years of age or older they must be wholly or substantially reliant on the family head or their partner for financial support because they are incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. If the applicant has turned 23, then the Tribunal must be satisfied that they are dependent on the family head because they meet reg 1.05A(1)(b), i.e., that they are 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. ‘Incapacitated for work’ means the applicant must be at least substantially incapacitated for paid work.Evidence before the Tribunal

Decision

Reasons for decision

Give the above findings, the Tribunal concludes that the applicant is not a member of the family unit of a person (his father) who holds a Subclass 188 visa. Therefore, the applicant does not satisfy cl 188.311. In the circumstances, the Tribunal must affirm the decision under review. DECISION The Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional) visa.R. SkarosSenior Member1.12 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.…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.(2) …

Ratio Decidendi

Legal Principle Established

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