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 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
The applicant was born in [month of specified year] and is [age] years of age. When applying for the visa, he indicated that he was studying full time at university, but that he had to take a leave of absence from study due to mental health issues. He also indicated that he was being financially supported by his father. Attached to the application was a medical certificate from [Hospital 1] issued in 2017 indicating that the applicant had been suffering from insomnia and vascular headaches which might be from adjustment issues due to being away from the family for education. Also provided was a [University 1] medical impact statement form, which was completed by a medical practitioner, indicating the applicant’s studies were severely impacted by his insomnia and vascular headaches, together with a leave of absence Approval (for Semester 2, 2017) issued by [University 1] on 14 September 2017. Also provided were bank statements and other documents issued in 2018 indicating that the applicant was being financially supported by his father.
A statement from the applicant’s father, dated 4 May 2021, was provided to the Department (a copy of which was also provided to the Tribunal on review), in which following was stated:
·the applicant was fully dependent on him for his personal care, maintenance and financial support.
·the applicant was unable to maintain himself due to regular medical problems he had experienced since 2017.
·the applicant was still under his care and responsibility despite having turned 23 years of age.
·the applicant was fully dependent on him as he had been unable to care for himself and that he (the applicant) would experience severe hardship if he was unable to remain in Australia with the family.
·the applicant had good secondary school grades and wanted to pursue higher education. As his eldest son (the applicant’s eldest brother) was living in Australia, they decided to send the applicant to Australia to study. The applicant started studying well in Australia but was unable to care for himself and got into some bad habits which were of great concern.
·he had to travel to Australia on two occasions to check on the applicant. He also instructed his eldest son to care for the applicant and oversee his routine.
·in 2017, they got the applicant assessed and found that he had insomnia and vascular headaches which had affected him in the preceding year. They reported the medical issues to the University and the applicant had to defer his studies for that semester.
·the applicant returned to Pakistan in 2017 to be with the family, who cared for his needs until he could recover. With the family’s attention and care, the applicant’s situation improved.
·once improved, the applicant returned to Australia to continue his studies, but he was under the direct care of his eldest brother.
·the applicant cannot be left on his own. He is unmarried, cannot maintain himself personally and would require the assistance of a parent or an older sibling and there was no one left in Pakistan to care for him.
·the family have no option but for the applicant to stay in Australia as their dependant.
In his written statement to the Tribunal, the applicant said his father was nominated by the State of Victoria in January 2019 and the family applied for the Business Skills (Subclass 188) visa in March 2019. At the time of application, he was [age] years of age and was dependent on his father. Due to the delay in the processing of the application, which included the COVID-19 restrictions and office closures, the application took an exceptionally long time to process. He said his father provided all the supporting documents in the application to demonstrate that he (the applicant) was his dependant despite having turned 23 years of age. He said the Department did not consider the delays that had been caused and did not consider the circumstances. The applicant stated that he believes he qualifies for the Subclass 188 visa as he is dependent on his father.
The applicant provided a detailed history of his and his family’s circumstances, including their travel to and stay in Australia. He said his brother ([Mr B]) came to Australia in July 2014 and is a settled Australian Citizen. His eldest sister came to Australia on a partner visa in January 2017 and is also settled in Australia. He came to Australia on a student visa in February 2015 and enrolled in [a degree] at [University 1], Melbourne. His parents visited Australia on two occasions in 2016 and 2017. On the third occasion, in 2018, his father considered Australia to be one of the most liveable countries in the world and decided to move the rest of the family to Australia. After conducting research regarding the options for relocating, his father decided to apply for the Business Innovation and Investment (Provisional) (Subclass 188) visa as this best suited his father’s circumstances as he had extensive business experience and substantial assets.
The applicant said his father had heard from others that the application takes from eight to ten months to process. However, due to the COVID-19 pandemic and the delay in processing the application, the applicant turned 25 and they (he and his family) had to suffer the consequences.
The applicant submitted that he checked the regulations regarding his eligibility and believes he qualifies as his father’s dependant for the visa. He submitted that there were various medical reasons that establish his dependency on his father despite turning 23. He said the family had incurred a lot of expenses to lodge the application, including getting personal and business documents, undertaking the medical examinations, and providing medical reasons (with supporting documents) as to why he was still dependent on his father. He said they felt they had some hope, but after a very long time processing the application, the Department decided to refuse his application for the visa because of the definition in reg 1.05A of the Regulations.
The applicant stated that the visa refusal has been a devastating experience and that he was on the verge of losing his education progress, career pathway and medical stability. He stated that his mental health and well-being, which recently started to stabilise after he started getting counselling, had started to worsen, making it difficult for him to concentrate on his studies, himself, and his career. He said his whole family was educated and career oriented and the visa refusal had disturbed and delayed his ability to continue with his studies. The applicant expressed fear that he would again suffer with insomnia and vascular headaches, which he said would put him and his family in continuing problems. The applicant stated that he lives with anxiety, bad mental health, and constant pressure because of the visa refusal. He said he, his parents and siblings would suffer.
The applicant submitted that his visa refusal would have a devastating impact on his parents, who are in their fifties, as they may not be able to focus on their business in Australia knowing he could not be with them. He said it was his father’s intention to relocate to Australia to be with all his children. He said his father, who is in [a specified] business, had stopped taking new projects in Pakistan as he had planned to relocate his assets and business to Australia. His father has already suffered economic losses due to the extensive period taken to process his application. The applicant said his father is committed to investing in Australia, which was chosen as the country of destination because two of his children were already settled in Australia. He said if the whole family was unable to relocate to Australia, then this could jeopardise his father’s business plans.
In support of his medical claims, the applicant provided to the Tribunal receipts from Better Help, which indicate that he had been receiving counselling throughout 2020 and 2021.
Hearing evidence and discussion of issues
At the hearing, the applicant gave evidence that he is [age] years of age. He said he finished high school in Pakistan and travelled to Australia in February 2015 on a student visa (Subclass 573) to study a [degree] at [University 1]. He completed two years of study, but then took a leave of absence from his studies in 2017 and returned home to Pakistan to be with his family. He returned to Australia in February 2018 to continue with his studies. The applicant said the pandemic took a toll on him. He was struggling with mental health issues and kept failing. He kept pushing himself, and even though he was at home all the time (due to the mandated lockdowns in Victoria) and could have studied, this did not occur as he was mentally struggling with the extended periods of the lockdown. Noting that the lockdown period was some time ago now, the applicant indicated that his situation has since improved.
The applicant gave evidence that his family (parents and younger siblings) arrived in Australia in 2021. He said they tried to convince him to return to university and complete his degree, which he tried, but could not keep up with the work or concentrate on studies. He said he was not in a good mental space to continue with his [Discipline 1] studies. The applicant said he did not renew his student visa (which ceased in mid-2019) because he was not studying at the time.
When asked about his employment history, the applicant gave evidence that during his studies he worked at [Employer 1] for about 10 to 15 hours a week. He stopped working for [Employer 1] in about 2021. The applicant gave evidence that he is currently working in hospitality. He said he realised that [Discipline 1] was not his calling. He is currently employed as a Manager for [Employer 2].
The applicant gave evidence that his eldest brother completed studies in [Discipline 2] and has a good job with a [specified] company. When asked about his father’s business, the applicant gave evidence that his father was in the process of transferring his assets from Pakistan to Australia to establish the business. He said he plans to support his father with the business in Australia.
The Tribunal discussed with the applicant the requirements in cl 188.311, and particularly the definitions in regs 1.12 and 1.05A, which requires it to assess, at the time of its decision, whether he is reliant (wholly or substantially) on his father for financial support because of an inability (incapacity) to work due to a total or partial loss of physical or mental functions. The Tribunal noted that his mental health appears to have improved and that he was currently employed and does not appear to have a disability or incapacity to undertake employment.
In response, the applicant said he experienced mental health issues because of the stress with university, being away from his parents and living in a different country. He said his parents have been a great support for him. His family’s relocation to Australia has made it much easier for him compared with two years ago. The Tribunal noted that given his age and current circumstances, he does not appear to satisfy the requirement of being a member of the family unit of his father and may not qualify for the same visa (the Subclass 188 visa) as his parents and younger siblings. The applicant referred to the delay in the processing of the visa application and said the Department continued to request information and documents from him and his parents, which gave them the impression that things were progressing well. He said the Department did not raise concerns about him not meeting the requirements and had they been more forthcoming with that information, he and his family may have considered other options.
The Tribunal explained to the applicant that its assessment must be made at the time of decision, it acknowledged that the application for the visa was made five years ago and that there was a delay in the processing of the visa application, which was exacerbated by the COVID-19 pandemic. The Tribunal acknowledged the applicant’s evidence that his family (parents and siblings) have now been granted visas to stay Australia but explained that it did not have any discretion in his matter and that it must apply the relevant legislative provisions. The Tribunal suggested that, after it makes it decision, the applicant seek advice about his options from a qualified immigration professional, including the possibility of seeking Ministerial intervention, if there were no other possible visa options for him.
The applicant requested the Tribunal to give him some time to get advice about his options. The Tribunal noted that he had been on notice (since the delegate’s decision) of the issues in the review and indicated that considering the evidence now before it, it did not consider it appropriate to indefinitely delay the finalisation of his matter. Nevertheless, the Tribunal agreed not to finalise the review until after 5 April 2024. The applicant understood that the Tribunal would proceed to a decision on the review at any time after 5 April 2024. As this period as now passed, the Tribunal proceeds to make a decision on this review.
Considerations
The applicant applied for the Business Skills (Provisional) Subclass 188 visa as a member of the family unit of his father. The applicant’s parents and younger siblings were granted the Subclass 188 visas; however, he was refused because the delegate found that he was not a member of the family unit of his father.
Clause 188.311 forms part of the secondary criteria in Part 188.3 and must be satisfied at the time a decision is made on the application. It requires the applicant (as a secondary applicant for the visa) to be a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant). In this case, the applicant’s father, [Mr A], who was the primary applicant for the visa, was granted the Subclass 188 visa on 12 October 2021.

For the applicant to be member of the family unit of his father, as provided for in reg 1.12(2)(b), the Tribunal must be satisfied that the applicant, who has turned 23, is dependent on his father for financial support because he is incapacitated for work due to a total or partial loss of his bodily or mental functions: reg 1.05A(1)(b).
The term ‘incapacitated for work’ was considered by the Full Federal Court in Cole v MIBP [2018] FCAFC 66 (Cole) in the context of reg 1.03(b)(ii), which is identically worded and has a similar purpose to the definition of ‘dependent’ in reg 1.05A(1)(b). It provides that a child may be considered a dependent child if they are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Court in Cole held that ‘incapacitated for work’ does not mean exclusively wholly incapacitated, but it may extend to substantially incapacitated for work. The Court said it would not be appropriate to extend it to trivially or only minimally incapacitated for work because there would not be significant impairment of income earning ability. It was also held that ‘work’ means paid work, otherwise the regulation would preclude a person who was so incapacitated they could only perform a few hours of voluntary work per week, and this would be at odds with the regulatory regime regarding ‘dependency’, which is focussed on a person’s need for financial support at [25].
In relation to the two-stage process for assessing incapacity for work, as laid down in Re Panke and Director-General of Social Services (1981) 4 ALD 179 and approved in Annas v Director-General of Social Services (1985) 8 FCR 49, the Court in Cole considered that this was still relevant and, depending on the context, should be adopted. The Court in Cole at [67] said the decision‑maker should, first, plainly identify what the disabilities of the relevant person are and, in light of that finding (based on medical and related evidence), determine whether there is paid work that the person, with such disabilities, has the capacity to perform.
The Tribunal has considered the evidence before it, including the financial support provided to the applicant by his father during his stay and study in Australia and the medical reports indicating that the applicant had experienced insomnia and vascular headaches. It has also considered the evidence indicating that the applicant had received counselling in 2020 and 2021. The Tribunal has also considered the submissions made by the applicant’s father and the applicant, as well as the applicant’s oral evidence at the hearing regarding the medical and mental health issues experienced by the applicant.
The Tribunal accepts that the applicant had experienced health issues associated with insomnia and vascular headaches, which were diagnosed in 2017 and had affected his studies. It also accepts that the applicant experienced mental health issues, which the evidence suggests was due, in part, to the applicant being away from home and family, adjustment issues in Australia, the extended COVID-19 lockdown in Victoria and study pressures. The Tribunal further accepts that the applicant has experienced anxiety and stress due to the visa refusal which has impacted him and his family. The evidence before the Tribunal, however, does not indicate that the applicant’s physical or mental health issues rendered him incapacitated for work. In fact, the evidence before the Tribunal is that the applicant was able to undertake work (for which he was paid) on a part-time basis at [Employer 1] for about 10 to 15 hours a week up to 2021. The Tribunal is mindful that being incapacitated for work does not mean “exclusively wholly incapacitated for work”, as discussed in Cole, however, the Tribunal is not satisfied on the evidence before it that any incapacity experienced by the applicant (due to his physical or mental health) was sufficiently significant as to impair his income earning ability.
The Tribunal accepts that the applicant was financial supported by his father. However, it considers the applicant’s substantial reliance on his father for financial support was because of his study and stay in Australia (as the holder of a student visa) and not because he was incapacitated for work due to a partial loss of bodily or mental functions.
Further to the above, the Tribunal notes that the current evidence before it, which the applicant provided in his oral evidence at the hearing, is that the applicant’s health has much improved, particularly since his family relocated to Australia, and that he is currently employed as a manager in the hospitality industry. The applicant has also expressed a desire to assist his father with the business in Australia. The current evidence before the Tribunal does not indicate that the applicant is incapacitated for work due to any loss of bodily or mental functions or that he relies on his father for financial support for these reasons.
The Tribunal has considered the submission that the applicant is unmarried, that his parents and siblings have relocated to Australia, that he has no remaining family in Pakistan and that he would suffer significant psychological hardship if he could not remain with them. The Tribunal acknowledges that the family would like to remain together in Australia and that the applicant would experience hardship if he could not be with his parents and siblings, whom the Tribunal accepts are significant source of support for him. The Tribunal is sympathetic to the applicant in these circumstances; however, these matters do not establish that the applicant is dependent (within the meaning of reg 1.05A(1)(b)) on his father.
Having carefully considered all the evidence before it, the Tribunal is not satisfied that the applicant, who has turned 23, is wholly or substantially dependent on his father because he is incapacitated for work due to total or partial loss of his bodily or mental functions. The applicant therefore does not satisfy reg 1.05A(1)(b) and does not come within the meaning of member of the family unit (of his father) as provided for in reg 1.12(2)(b).
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. Skaros
Senior 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.
…
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) …