Choi (Migration)

[2020] AATA 5006

Choi (Migration) [2020] AATA 5006 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Heejin Choi

CASE NUMBER:  1833160

HOME AFFAIRS REFERENCE(S):          BCC2017/4418665

MEMBER:Kira Raif

DATE:13 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 13 October 2020 at 12:45pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – member of family unit – dependent child of the primary visa applicant – applicant’s age – wholly or substantially reliant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.05, 1.12; Schedule 2, cl 408.311

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 7 November 2018 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant was born in September 1994. He applied for the visa on 23 November 2017. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.311 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was a member of the family unit of the person granted the relevant visa. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 October 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. The issue in this case is whether the applicant is a member of the family unit, and a dependent child, of the primary visa applicant. The term ‘member of the family unit’ is defined in r. 1.12. Relevantly, it provides

   (2)      A person is a member of the family unit of another person (the family head) if the person:

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

   (b)is 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 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

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

   This subregulation has effect subject to the later subregulations of this regulation.

7. The term ‘dependent’ is defined in r. 1.05A. Relevantly, paragraph 1.05A(1)(b) defines dependence as follows

   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.

   Is the applicant a dependent child of the primary visa applicant?

8. The visa applicant does not seek to satisfy the primary criteria for visa grant and there is no evidence that he does satisfy the primary criteria.

9. As the visa applicant claims to be a child of the primary visa applicant, the Tribunal is not satisfied that he is a spouse of the primary visa applicant or a dependent child of a child.

10. The visa applicant claims to be a child of the primary visa applicant and provided with the application evidence of his relationship with the primary visa applicant. The Tribunal accepts that the applicant is a child of the primary visa applicant. The Tribunal must consider whether the visa applicant.

11. The visa applicant was born in September 1994. The application for the visa was made in November 2017. The visa applicant was 23 years of age at the time of the application and is over 23 at the time of this decision.

12. There is no evidence that the visa applicant is wholly or substantially reliant on his parents for financial support because the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied the visa applicant meets paragraph 1.05A(1)(b) of the definition of dependent. The Tribunal is not satisfied the visa applicant is a member of the family unit of the primary visa applicant. He does not meet cl. 408.311.

13. In his written submission to the Tribunal of 22 September 2020 the applicant concedes that he cannot meet the visa requirements as he had turned 23. The applicant states that he continues to be dependent on his parents and has been living with his family, in Australia, since he was a teenager. The applicant states that he cannot return to Korea as he has nothing there and if required to travel to Korea, his intention is to return to Australia to be with his family. In oral evidence the applicant also told the Tribunal that he had been included in his parents’ visas since entering Australia but due to the changes in the law, he cannot be a dependent child any more. He notes that due to Covid restrictions, he may be unable to return to Australia for a long time. The Tribunal accepts that evidence but has no power to recommend the visa grant on compassionate grounds.

    Conclusion

14. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    Kira Raif
    Senior Member