Castro (Migration)

[2023] AATA 1089

Castro (Migration) [2023] AATA 1089 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mickey Castro

REPRESENTATIVE:  Mr Bijaya Gurung (MARN: 1805361)

CASE NUMBER:  2210399

HOME AFFAIRS REFERENCE(S):          BCC2016/3989088

MEMBER:Nicola Findson

DATE:20 April 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 20 April 2023 at 3:34pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– applicant is now 25 years old – not incapacitated for work due to total or partial loss of his bodily or mental functions – no longer meets the requirements of cl.457.321 for the grant of the visa – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03, 1.05, 1.12, Schedule 2, cl 457.321

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 Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Mr Castro, was born on 6 September 1997. He applied for the visa on 26 November 2016 (then aged 19 years) as a dependent child of his mother, Mrs Maria Castro, who was the primary visa applicant. On 28 June 2022, Subclass 457 visas were granted to Mr Castro’s parents and younger sister. However, on 29 June 2022, the delegate refused to grant Mr Castro’s visa on the basis that the requirements of cl 457.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) were not met, because the delegate was not satisfied Mr Castro was a member of the family unit of his mother, the holder of a Subclass 457 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. At the time of the delegate’s decision, Mr Castro was 25 years old, and had not provided any information to demonstrate he is wholly or substantially reliant on his mother (or his parents) by reason of being incapacitated to work due to the total or partial loss of bodily or mental functions.  Accordingly, the delegate was not satisfied that Mr Castro met the relevant requirements.

6. Mr Castro appeared before the Tribunal on 1 December 2022, by MS Teams video, to give evidence and present arguments.

7. Mr Castro was represented in relation to the review, however, the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the applicant is a member of the family unit of a person who holds a Subclass 457 visa granted on the basis of satisfying the primary criteria for the grant of the visa and satisfies cl 457.321.

10. 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.

11. At the hearing, pursuant to the provisions of s 359AA of the Act, the Tribunal invited Mr Castro to comment on information that on 29 June 2022, a delegate of the Department had refused his visa because they were not satisfied that the requirements of cl 457.321 were met. The Tribunal explained the requirements of cl 457.321, and in particular, the meaning of ‘member of the family unit’ in r.1.12 and the concept of ‘dependency’ in r.1.05A. The Tribunal explained that at the time the delegate made their decision Mr Castro was 25 years old, and had not provided any information to demonstrate he was wholly or substantially reliant on his mother, the primary visa holder, by reason of being incapacitated for work due to the total or partial loss of bodily or mental functions. Accordingly, the delegate was not satisfied Mr Castro was a member of the family of his mother, as defined by the regulations, and refused his visa. The Tribunal explained to Mr Castro that the information was relevant because if he could not meet the secondary criteria in cl 457.321 of Schedule 2 to the Regulations, this would form a reason for the decision under review being affirmed.

12. Mr Castro elected to respond immediately. He indicated that he understood the requirements for the visa. He told the Tribunal, by way of response, that he was 19 years old when he and his family members had applied for their visas.  He said that it had taken a very long time - six years - for his mother as well as his father and younger sister to, ultimately, be granted their visas.  He told the Tribunal that while the visa process progressed, he studied a Diploma of Leadership and Management as well as an Advanced Diploma of Network Security, and notwithstanding working on a part time basis at a local supermarket, relied on his parents to help him with his student fees and living expenses.  He told the Tribunal that he would like to be able to remain in Australia with his family members, and to pursue further study.   

13. The Tribunal acknowledged the lengthy application process and explained that while it had sympathy for the applicant’s situation, in circumstances where he is now 25 years old and not incapacitated for work due to total or partial loss of his bodily or mental functions, it was not open to it to find that the requirements for the visa are met.

14. The Tribunal acknowledges that in November 2016, when he applied for the visa Master Castro was 19 years old, and he claimed pursuant to r.1.12(2)((b)(ii), to be a dependent child of his mother, the primary visa holder and the family head.  Master Castro has not claimed, nor is there any evidence before the Tribunal to indicate, that he is incapacitated for work due to total or partial loss of his bodily or mental functions and, therefore, meets the alternative requirement in r.1.12(2)(b)(iii).

15. Given that Master Castro has turned 23 and no longer meets the requirements of cl.457.321 for the grant of the visa, the Tribunal must affirm the decision under review.

16. The Tribunal acknowledges the impact of an unfavourable visa outcome for the applicant, as well as his close family members. However, as discussed with the applicant at the hearing, the Tribunal does not have any discretion to waive the requirements of cl 457.321, as those requirements contain no discretionary factors, such as compassionate or compelling factors, for waiving its requirements.

17. Accordingly, the applicant is not the dependent child of his mother, Mrs Maria Castro, and cl 457.321 is not met.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    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.

    …