Chan (Migration)

[2022] AATA 1017

Chan (Migration) [2022] AATA 1017 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gaik Chee Chan

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2102910

HOME AFFAIRS REFERENCE(S):          BCC2020/1709354

MEMBER:Susan Trotter

DATE:2 March 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional) visa.

Statement made on 2 March 2022 at 5:19pm

CATCHWORDS
MIGRATION – Business Innovation and Investment (Class EB) visa – Subclass 188 (Business Skills (Provisional)) – member of the family unit – ‘dependent’ on the family head – ‘wholly or substantially’ reliant for financial support – current employment as a pharmacist – request for Ministerial Intervention declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12; Schedule 2, cl 187.233

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 Business Innovation and Investment (Renewal) (Class EB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 June 2020 as one of the secondary visa applicants in relation to the visa application of Ms Ai Hwa Niew, the primary visa applicant for a Subclass 188 visa in the Business Innovation and Investment (Provision) (Extension) stream. At the time the applicant was the holder of a Business Skills (Provisional) (Class EB) visa.

3. The delegate refused to grant the visa on 26 February 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) as required because the delegate was not satisfied that the applicant was a member of the family unit, as that term is defined, of the family head, that is the primary visa applicant in this case.

4. The delegate made this decision on the basis that as the applicant was over the age of 23 years, she was not dependent on the primary visa applicant (as the term ‘dependent’ is defined for the purposes of being a member of the family unit of the primary visa applicant) and therefore did not satisfy the required secondary applicant criterion.

5. The applicant applied to the Tribunal on 9 March 2021 seeking review of the delegate’s decision and provided a copy of the delegate’s decision to the Tribunal.

6. The applicant appeared before the Tribunal by video on 31 January 2022 to give evidence and present arguments. The Tribunal notes that the applicant sought an adjournment of the first listed hearing in relation to this matter, on 13 December 2021, until January 2022. The Tribunal granted the requested adjournment and invited the applicant to a hearing by video on 31 January 2022. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined that it was reasonable to hold the hearing by video having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick and the further delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review. The representative also participated in the Tribunal 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 (the primary visa applicant) who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the visa: 188.311.

10. 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 ‘member of the family unit’ has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.

11. 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:

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

    (b) a child or stepchild of the family head or of their spouse or de facto partner (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

    (b)   a dependent child of a person who meets the conditions in paragraph (b).

12. Regulation 1.05A(1) provides that a 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.

13. Further to the above, r.1.12(5) provides that, in addition to subregulation (2), a person is a member of the family unit of an applicant for a visa (the new visa) described in Column 1 of r.1.12(5)) who seeks to satisfy the primary criteria for the new visa, if, at the time of the application for the new visa, the person is included in the application for the new visa, and holds a visa (the old visa) described in column 2 of r.1.12(5) granted on the basis that the person was a member of the family unit of a person who held a visa of the same kind as the old visa.

14. The relevant parts of the regulations are extracted in an attachment to this decision.

15. Firstly as regards r.1.12(2), the evidence before the Tribunal confirms that the applicant is the daughter of the primary visa applicant. However, additionally, the applicant must meet the definition of ‘dependent’ as that term is defined, to be a member of a family unit, as that further term is defined, of the primary visa applicant.

16. Essentially, the applicant must now, at the time of decision, be not engaged, married or be in a de facto relationship, have not turned 18 or, if aged between 18 and 22 years of age must be dependent upon the family head or, if 23 years of age or older, must be wholly or substantially reliant on the family head or their partner for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

17. The applicant confirmed at hearing that she is now 28 years of age and was over the age of 23 years at the time of the visa application relevant to this application before the Tribunal. The law specifies that in order to satisfy the required criterion for grant of the visa as a secondary visa applicant, the applicant as a child of the primary visa applicant over the age of 23 years, must be wholly or substantially reliant on the family head (the primary visa applicant) or their partner for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

18. The applicant said that when she was first granted a Subclass 188 visa (on 3 June 2016), she was 22 years of age. The Tribunal acknowledges that the applicant was aged less than 23 years of age in relation to the previous Subclass 188 visa granted to her on 3 June 2016 (which ceased on 3 September 2020).

19. The applicant told the Tribunal that it makes it very hard because she completed all of her studies in Australia. She told the Tribunal that she is now finished her studies and is working as a pharmacist and her salary is approximately $8,000 per month, that is approximately $96,000 per annum. The Tribunal discussed with the applicant that based on her evidence in that regard it also held a concern that the applicant is not in any event dependent upon the primary visa applicant now because she is no longer reliant upon her mother financially given her employment and salary.

20. In addition to discussing the reason for refusal of the visa by the delegate, the Tribunal put to the applicant[1], that, information before the Tribunal is that the primary visa holder is not the holder of a Subclass 188 visa and is no longer the holder of a Subclass 188 visa.

    [1] Pursuant to procedure set out in section 359AA of the Act

21. The Tribunal explained to the applicant that this information was relevant to the review because the requirement in issue for grant of the visa is that ‘the applicant is 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 visa’. The Tribunal discussed that there are two parts to that requirement: firstly, that the applicant is a member of the family unit of the family head, the primary visa applicant and, secondly, that it is required to be satisfied that the primary visa applicant, the applicant’s mother, has been granted and is the holder of a Subclass 188 visa. The Tribunal took into account the evidence before it is that the primary visa applicant’s Subclass 188 visa application has been refused and noted the submission that because the primary visa applicant is outside Australia she has been unable to come to Australia to lodge a valid application for review of the refusal to grant her a visa.

22. The Tribunal indicated that if it relied upon this information and found that the primary visa applicant was not the holder of a Subclass 188 visa and is no longer the holder of a Subclass 188 visa, it would also be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant. The Tribunal invited the applicant to comment on or respond to the information or to seek additional time to do so.

23. The applicant sought to respond to or comment on the information there and then at the hearing and stated that her family went back to Malaysia and have not been able to come back due to the pandemic. They have sent a couple of letters requesting that her family be able to come onshore. The applicant said she was lucky to get on a flight and come back a week before (the pandemic) but she is not a primary visa applicant, only a secondary visa applicant. However, the main applicant, her mother, has lost her right to appeal. The applicant said before the primary visa applicant went back (to Malaysia), she (her mother) had been running a business in Australia for a couple of years and that is why she had been seeking an extension to her Subclass 188 visa. When the pandemic first occurred, for the first couple of months no-one was able to come in to Australia because of the lockdown but subsequently the law was changed allowing holders of Subclass 188 visas to come to Australia and it was not until after refusal of their visas, that it changed to allow holders of Subclass 188 visas to come to Australia.

24. The applicant’s representative told the Tribunal that it was acknowledged that the Tribunal would have to affirm the decision under review to refuse to grant the applicant the visa and was seeking a recommendation to the Minister to intervene. The representative referred to a number of reasons for intervention including because the primary visa applicant could not come to Australia to seek an application for review of the refusal of the visa to her as the primary visa applicant and, further referred to the gap in the law in relation to Subclass 188 extension visas.

25. As the applicant had turned 23 prior to the application for the visa the subject of this application, for the relevant criterion to be met, the Tribunal must be satisfied that she is dependent on the family head because she meets r.1.05A(1)(b); that is, that she is wholly or substantially reliant on the family head because she is incapacitated for work due to the total or partial loss of her bodily or mental functions. There is no evidence that the applicant is incapacitated for work and the applicant confirmed at hearing that she is employed as a pharmacist on a salary of approximately $96,000 per annum. Additionally, the primary visa applicant, the family head, is not now the holder of a Subclass 188 visa. Further based on the evidence the Tribunal is not satisfied that the applicant is now substantially reliant on the primary visa applicant for financial support to meet her basic needs for food, clothing, and shelter given her current employment and salary of approximately $96,000 per annum.

26. Having regard to all of these matters, the Tribunal is not satisfied that the applicant is dependent upon the primary visa applicant as the term ‘dependent’ is defined. In turn, it follows that the applicant is not a member of the family unit, as that term is defined by r.1.12(2), of the primary visa applicant.

27. In relation to r.1.12(5), the Tribunal acknowledges that the applicant held a Business Skills (Provisional) Class EB (Subclass 188) visa at the time of application. However, the application in this case is for renewal of the temporary Subclass 188 visa not a Business Skills (Permanent) (Class EC) visa. It follows, that the applicant is not a member of the family unit of the family head pursuant to r.1.12(5).

28. The applicant does not satisfy the definition of member of family unit as provided for in r.1.12(2) or r.1.12(5). Further, none of the other provisions in r.1.12 apply to the applicant.

29. Therefore, the applicant does not satisfy the requirement in cl.188.311 for the grant of the visa as a secondary applicant. There is also no evidence before the Tribunal, and the applicant has not claimed, that she satisfies the primary criteria for the grant of a Subclass 188 visa. The Tribunal is also not satisfied that there are other requirements pursuant to which the Tribunal can consider this matter further.

30. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa and the Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional) visa.

    Request for Ministerial Intervention

31. The representative orally submitted that the Minister should have regard to the special circumstances of the COVID-19 pandemic impacting the world and recommend Ministerial intervention.

32. The representative also orally submitted that the applicant has a very good employer who would like to sponsor her to remain in Australia and that the applicant would like to also pursue her own business.

33. The applicant’s representative noted that the primary visa applicant was prevented from coming to Australia to lodge an appeal, in relation to her own visa refusal, because of the COVID-19 pandemic.

34. At hearing, the Tribunal invited the applicant’s representative to address the published guidelines in relation to the exercise of the Minister’s power to intervene.

35. In response the representative sought to make submissions in that regard after the hearing. The Tribunal discussed its reluctance to further adjourn the matter in circumstnaces where there had been significant time before the hearing to address the guidelines and in circumstances where the COVID-19 pandemic had now been impacting the world for a significant period of time. The applicant’s representative maintained their request to provide submissions in writing in relation to Ministerial intervention. The Tribunal allowed further time as requested and has taken into account submissions received on 4 February 2022.

36. Written submissions provided to the Tribunal following the hearing were as follows (unedited):

    The applicant is the dependent of the application of 188A extension, the main applicant was in Malaysia when the appeal was lodged and was not able to come back to Australia when the decision was made, the outstanding document to the Department of Home Affairs was not provided due to the absence of the main applicant, we have requested many times to the Department to grant the exemption to the Department to enter in Australia, it was not successful. If there was no border restriction, the case would be different.

    Ms CHAN has graduated from the University of Sydney her major is Bachelor of Pharmacy, she has been working in the Chemist Warehouse after graduate as the retail pharmacist, she is skilled Pharmacist and in the last year she was employed by the Terrywhite pharmacy, both employers are willing to provide sponsorship due to the shortage of skilled worker especially during the pandemic, her visa status has stopped her to lodging and granting the visa because of the section 48 Bar of the 188A extension refusal. We would like the tribunal to consider the unique and special case to refer to the Minister for intervention.

37. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to an applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction on Conducting Migration and Refugee Reviews, especially the paragraphs concerning referrals for Ministerial Intervention and the Minister’s Guidelines on ministerial powers (s.351, s.417, and s.501J) available in the Procedures Advice Manual 3 (the Minister’s Guidelines).

38. Amongst other things, the Minister’s Guidelines state that the Minister may consider exercising his or her discretion in cases that exhibit one or more ‘unique or exceptional circumstances’. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances.

39. The applicant’s representative has not, as invited, addressed the Ministerial guidelines in relation to Ministerial intervention. The Tribunal has nonetheless taken into account all of the evidence before it of relevance in relation to Ministerial intervention.

40. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard. The powers under ss.351, 417 and 501J may only be exercised by the Minister personally and are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he or she is requested to do so by the applicant, any other person (including the Tribunal) or in any other circumstances. The Tribunal notes that once it has jurisdiction to conduct a review, as it does in the present case, the Minister’s power to intervene is enlivened.

41. The Tribunal has considered the submissions provided to it, all relevant evidence and the Ministerial guidelines and has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

42. The Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional).

    Susan Trotter
    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.

    …

    (5)In addition to subregulation (2), a person is a member of the family unit, of an applicant for a visa (the new visa) described in column 1 of an item of the following table who seeks to satisfy the primary criteria for the new visa, if, at the time of the application for the new visa, the person:

    (a)  is included in the application for the new visa; and

    (b)  holds a visa (the old visa) described in column 2 of the item granted on the basis that the person was a member of the family unit of a person who held a visa of the same kind as the old visa.

Members of the family units of applicants for new visas
Column 1 New visa applied for	Column 2 Old visa person holds at time of application for new visa
1	Contributory Parent (Migrant) (Class CA) visa	Contributory Parent (Temporary) (Class UT) visa
2	Contributory Aged Parent (Residence) (Class DG) visa	Contributory Aged Parent (Temporary) (Class UU) visa
3	Business Skills (Residence) (Class DF) visa	Business Skills (Provisional) (Class UR) visa
4	Business Skills (Permanent) (Class EC) visa	Business Skills (Provisional) (Class EB) visa

…..