Guo (Migration)

[2019] AATA 487

Guo (Migration) [2019] AATA 487 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yang Guo

CASE NUMBER:  1516614

DIBP REFERENCE(S):  BCC2015/1082233

MEMBER:John Cipolla

DATE:14 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Class EB Business Innovation and Investment subclass 188 (Business Innovation) visa for reconsideration, with a direction that the applicant meets the following criterion for the visa:

cl.188.311 of Schedule 2 to the Migration Regulations.

Statement made on 14 March 2019 at 11:58am

CATCHWORDS
MIGRATION – Business Skills (Provisional) – Subclass 188 – member of family unit – applicant over 18 years old – wholly or substantially reliant on her parents – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65,

Migration Regulations 1994, Schedule 2, cl 188.311 rr 1.12, 1.03, 1.05A

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 Immigration on 13 November 2015 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 April 2015. The delegate refused to grant the visa on the basis that cl.188.311 was not met.

3. The applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant’s mother, Ms Yimin Guo, lodged an application for a Subclass 188 visa on 10 April 2015.  The applicant was included as a member of her family unit.

6. Clause 188.311 provides:

   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 grant of the visa (the primary applicant).

7. Reg. 1.12 provides:

   1.12            For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

   (a)      a or  of the family head; or

   (b)      a dependent child of the family head or of a or  of the family head; or

   (c)      a dependent child of a dependent child of the family head or of a or  of the family head; or

   [(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]

   (e)      a relative of the family head or of a or  of the family head who:

   (i)      does not have a spouse or de facto partner; and

   (ii)      is usually resident in the family head's household; and

   (iii)      is on the family head.

8. ‘Dependent child’ of a person is defined in r.1.03 of the Regulations and means:

   the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

   (a)has not turned 18; or

   (b)has turned 18 and:

   (i)is dependent on that person; or

   (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

9. ‘Dependent’ is defined in r.1.05A of the Regulations. Relevantly, it provides:

   1.05A(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)…

10. The issue in the present case is whether the applicant is a member of Ms Guo’s family unit.  It is not in dispute that the applicant is over 18 years of age.  Therefore, she is required to be “dependent” on Ms Guo.

11. The applicant’s representative lodged a comprehensive submission dated 5 March 2019 which included a large number of annexures which the Tribunal has duly considered.

12. The Tribunal also conducted a review hearing on 12 March 2019 and the applicant along with her maternal uncle gave evidence to the Tribunal.

13. The evidence provided at hearing indicates that the applicant arrived in Australia in June 2009 as the holder of a Student visa. The evidence indicates that the applicant has studied continuously in Australia since her arrival. The evidence before the Tribunal indicates that the applicant has completed a number of courses including English-language courses, year 11 and 12 at High School, a number of Diplomas, two Bachelor degrees, and is about to embark on a Masters of Tourism which commences on 19 March 2019. The evidence before the Tribunal indicates that the applicant has been wholly or substantially reliant on her parents since 2009 to meet the cost of her education in Australia and to meet all of her cost of living expenses. The applicant’s evidence to the Tribunal indicated that since she had arrived in Australia in 2009 she has not worked.

14. The applicant’s uncle gave evidence corroborative of the applicant’s immigration history since arriving in Australia in 2009, confirming that his niece had studied continuously since the time of her arrival and had been fully supported by her parents, and continued to be supported by her parents as she was about to embark on postgraduate studies in Victoria.

15. Based on the evidence at hearing along with the submission and the attached evidence, the Tribunal accepts that the applicant has been wholly or substantially reliant on Ms Guo to meet her basic needs for food, clothing and shelter at the time of decision, and for a substantial period immediately before that time.

16. The applicant is therefore a dependent child of Ms Guo and meets regulation 1.12(1)(b) at the time of decision. As the applicant meets regulation r.1.12, she is a member of Ms Guo’s family unit at the time of decision. She therefore meets cl.188.311.

    DECISION

17. The Tribunal remits the application for a Class EB Business Innovation and Investment subclass 188 (Business Innovation) visa for reconsideration, with a direction that the applicant meets the following criterion for the visa:

    cl.188.311 of Schedule 2 to the Migration Regulations.

    John Cipolla
    Senior Member