La (Migration)

[2022] AATA 1004

La (Migration) [2022] AATA 1004 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nghia Truong La

REPRESENTATIVE:  Ms Ngoc Hoang Bui

CASE NUMBER:  2017042

HOME AFFAIRS REFERENCE(S): BCC2018/3937066 BCC2019/2454409

MEMBER:Susan Trotter

DATE:4 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 04 March 2022 at 6:15pm

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 – request for Ministerial Intervention declined – processing time of the visa application – 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 Skills (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 June 2018 as one of the secondary visa applicants in relation to the visa application of Phat Le La, the primary visa applicant for the Subclass 188 visa.

3. The delegate refused to grant the visa on 6 November 2020 on the basis that the applicant did not satisfy the requirements of cl 188.311 of Schedule 2 to 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 primary visa applicant. The delegate made this decision on the basis that as the applicant had, between the time of application and the time of their decision, turned 23 years of age, he 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 to satisfy the required secondary criteria.

4. The applicant applied to the Tribunal on 24 November 2020 seeking review of the delegate's decision. The applicant provided a copy of the delegate's decision to the Tribunal when applying.

5. The Tribunal notes that the applicant sought an adjournment of the first listed hearing in relation to this matter, on 15 December 2021. The Tribunal granted the requested adjournment and invited the applicant to a hearing by telephone on 31 January 2022. The applicant responded seeking that the hearing be conducted in person due to the ‘complexity of the case to avoid any possible miscommunication’. The Tribunal responded that it had considered this request and stated that due to the escalating COVID-19 situation, it was uncertain when an in-person hearing could be offered but that arrangements could be made for a hearing by video to be conducted.

6. The applicant appeared before the Tribunal by video on 31 January 2022 to give evidence and present arguments. Due to technical difficulties experienced, and following discussions with the applicant and his representative, the Tribunal changed the hearing modality to telephone part way through the hearing. The Tribunal exercised its discretion to hold the hearing in this manner as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing in this manner 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 video and telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments, given an opportunity to respond to the matters in issue and to fully participate in the hearing.

7. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

8. The applicant was represented in relation to the review.

9. Following the hearing, the Tribunal allowed further time for receipt of written submissions in relation to the applicant’s request for the Tribunal to recommend to the Minister that they intervene. The Tribunal has taken into account written submissions subsequently received dated 21 February 2022.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant must satisfy the secondary criteria for the grant of the visa. One of those criteria is, as has already been referred to, cl 188.311 of Schedule 2 to the Regulations. That criterion requires 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 grant of the visa (the primary applicant).

12. 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 r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.

13. 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

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

14. 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.

15. In this instance, the applicant is claiming to be the son of the primary visa applicant and dependent upon the primary visa applicant.

16. 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.

17. When considering whether the applicant is dependent on the family head or their spouse or de facto partner as required under reg 1.05A, the Tribunal must be satisfied that they are ‘wholly or substantially’ reliant on the other person for financial support at the relevant time and for a substantial period immediately before that time, and the financial support being provided is to meet the applicant’s basic needs for food, clothing and shelter, and their reliance on the other person is greater than their reliance on any other person or source of support. Alternatively, they must be wholly or substantially reliant on the family head or their spouse or de facto partner for financial support because the first person is incapacitated for work due to the total or partial loss of their bodily or mental functions.

18. The evidence before the Tribunal shows that the applicant is the child of the primary visa applicant and is now 25 years of age, and, further, the applicant confirmed at the hearing that he is not incapacitated for work.

19. The applicant’s representative raised a concern at hearing as regards the processing time in relation to the applicant’s (and his family’s) visa applications. In particular, the applicant’s representative noted that the Department sought further information in relation to the visa application just days before the applicant turned 23.

20. The Tribunal discussed with the applicant’s representative that it acknowledged that visa applications can involve a lengthy processing time as is evident in relation to this matter but noted the limits of the Tribunal’s power on merits review. The applicant’s representative acknowledged those limitations and stated that it was recognised that the requirement at law was not met and indicated that the applicant was seeking that the Tribunal refer the matter to the Minister for intervention.

21. The Tribunal has taken all these matters into account, however, having regard to the criterion to be satisfied, as the applicant has turned 23 the Tribunal must be satisfied that he is dependent on the family head because he is wholly or substantially reliant on the family head for financial support because he is incapacitated for work due to total or partial loss of his bodily or mental functions. On the evidence provided to the Tribunal this is not the case. There is no evidence that the applicant is incapacitated for work. It follows that the applicant is not dependent upon the primary visa applicant as the term dependent is defined. It in turn follows that the applicant does not meet the definition of a member of the family unit of the primary visa applicant.

22. 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 he 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.

23. 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 visa.

    Request for Ministerial Intervention

24. 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).

25. 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.

26. Written submissions dated 21 February 2022 in relation to the applicant’s request for referral for Ministerial intervention included as follows (unedited):

    We respectfully submit that our client’s matter involves unique and exceptional circumstances described in Minister’s guidelines for consideration of Ministerial Intervention, namely, circumstances outside our client’s control, procedural unfairness and unreasonable intention of policy and regulation lead to unfair results.

    Background information
    Our client travelled to Australia with his parents and sister to look at prospect schools and business and investment ventures. After deciding that Victoria was the best place for investment activities and for the family to reside and migrate, our client’s father as the primary applicant lodged an application for a Business Skill (provisional) visa (subclass 188) in the Investor stream (“188B visa”) on 26 June 2018. Our client who was 21 years old at that time was included in the application as dependant applicant.

    On 6 November 2020, our client received a Notification of Refusal of Application from the Department of Home Affairs (“the Department”) on the basis that he did no longer meet Reg 188.311 of the Act, a requirement of the 188B visa application.

    The refusal was appealed to the Administrative Appeals Tribunal (“AAT”) and the matter was heard on 31 January 2021.

    Compelling Circumstances outside Applicant’s control
    At time of application, our client was 21 years and 6 months old and studying his undergraduate degree in Vietnam and living with his parents. Our client and his family were aware that once our client turned 23 years old, he would no longer met the requirements to be granted the 188B visa. However, since the average processing time for a 188B visa application in 2018 was only around 18 months, our client and his family decided to go ahead and make their 188B visa application, expecting that it be processed with the indicated timeline.

    After completing his Bachelor of Industrial Engineer in Vietnam in April 2019, our client travelled over to Australia to live with his family and enrolled in a Master of Business at Victoria University.

    On 25 November 2019, we received a s56 Request for more information from the Department for the 188B visa application. The request noted our client will be turning 23 years old on 8 December 2019 and therefore required evidence that our client still satisfied the requirements of Reg 188.311 of the Act.

    Reg 188.311:
    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).

    Relevant definition of “Member of the Family Unit”, our client is required to meet is paragraph 1.05A(1)(b) of Reg 1.05A the Act. This regulation requires our client to wholly or substantially be reliant on the main applicant for financial support because he is incapacitated for work due to the total or partial loss of bodily or mental functions.

    Our client was always up to this period substantially dependant on his parents for financial support. As a fulltime student studying his master’s degree and living with his parents, our client relies on his parents to cover his accommodation and his essential living cost.

    Due to the delay in the processing of the 188B visa application and knowing he will be turning 23 years old before the 188B visa application will be finalised, our client was preparing to submit a student visa application so he could at least continue his studies in Australia. However, as our client was not on a substantial visa, our client could only submit visa applications offshore. If our client was able to submit the student visa application onshore, our client would have done so without delay, It was outside our client’s control that the Covid-19 Pandemic started to spread in February 2020 and complete international travel restrictions were put in place in March 2020 affecting our client’s plans. During this time, it was not safe for our client to leave Australia as there was high numbers of Covid-19 infections outside Australia and there was no way possible for him to come back home to Australia to be with his family once offshore.

    On 5 June 2020, we informed Department that our client has turned 23 years old and was preparing to submit his student visa application to continue his studies in Australia. Which after, our client will withdraw from the 188B visa application. However, due to the international travel ban, we requested the Department to wait until our client was able to travel overseas to make his own visa application. It would have been unreasonable for our client to leave Australia at that time as he would have been unable to receive a travel exemption to return to Australia.

    Our client’s whole family at that time was already residing in Australia and our client was in the middle of completing his master’s degree. As such, our client has set up his life in Australia alongside his family. Leaving Australia would mean leaving his family behind forcing him to return home to Vietnam and live by himself during the Covid-19 pandemic. On 6 November 2020, our client received notification of refusal of as he no longer meet the requirements of Reg 133.11 the Act without prior communication or consideration from the Delegates.

    We enclose the following for your attention:

    1.     S56 Request for more information dated 11 November 2019 from the Department of Home Affairs;

    2.     Confirmation of Enrolment and GTE Statement dated 13 February 2022, that was to be submitted in our client’s student visa application; and

    3.     Covering Submission dated 5 June 2020.

    We respectfully submit that it was completely outside our client’s control that the Covid-19 pandemic started to spread in February 20220 and affected our client’s plans to submit his own visa application. Our client at all times understood once he turned 23 years old, he will no longer meet the required regulations and did start panning for this situation. If the Covid-19 pandemic did not occur, our client would not be in his current position.

    Our client has always been honest about his plan to the Department. However, he received a Notification of Refusal in November 2020 without warning and due consideration, In November 2020, the Australian international borders were still closed and the Covid-19 pandemic still very prevalent both inside and outside Australia.

    Procedural Unfairness
    Furthermore, the procedural unfairness that occurred through the delay in the processing of the 188B visa application by the Department’s case officers, affected the possibility of 188B visa application being finalised before our client turned 23 years old.

    On 23 April 2019, we submitted all documents as requested by the case officer for the 188B visa application. It was not until 25 November 2019, 7 months later, that we received an email from a different case officer requesting for more information and noting our client will be turning 23 years old soon.

    If we have received the request above from the case officer earlier, this could have resulted in all information requested by the case officer being provided quicker, and therefore with, time for the Department to process and finalise the 188B visa application before our client turned 23 years old. Receiving the request above earlier could have also allowed out client to know to prepare for his own visa application much sooner, as he would then be sure he would not meet Reg 133.111 by the time the 188B visa application processing is completed.

    We submit the delay in visa application processing in procedural unfairness and not the only complaint our client and his family has had against the case officer who processed the 188B visa applications. On 28 August 2021, as instructed by our clients last year, we have submitted a complaint to the Department regarding the 188 B visa application and procedure unfairness and bias.

    Unreasonale intention of policy and regulation
    We submit Reg 188.311 has resulted in putting put our client and other applicants with similar position in an unreasonable position. ‘Member of Family Unit’ as defined in Reg 1.05(A)(1)(a) of the Act is a requirement required to be met at both time of application and decision.

    Reg 1.05(A)(1)(a)

    (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

    As a result, unemployment leaves our client unable to equip himself with the work experience he requires that could have made him eligible to meet the requirements of other visas he could prepare for in the situation he turns 23 years old. Not only that, the ages between 18-23 is an important age to start gaining work experience for a person’s carer and future. Therefore, ensuring Reg 1.05A(1)(a) as a at time of decision requirement puts our client clients and other applicants in an unfair position. To continue to meet the above regulation during the 188B visa application processing, our client was unable to find employment as then he would risk being considered not financially reliance on his parents to mee the regulation when he has not yet turned 23 years old.

    The lengths and the processing time of applications and timed decisions are subjected of the Department’s work and policy and beyond anyone’s control. Processing times that are always subject to time changes with no clear indication and delays in processing can happen without notices/warning which put dependant applicants in passive and disadvantage situations.

    Other considerations
    Further to the above, our client is now an integrated member of the Australian community with essential skills and knowledge in high demand. Our client has a Master in Business and Bachelor of Industrial Engineering. Upon graduation of his Master of Business in March 2021, our client was able to find employment as a Software Engineer at Advance Vision Technology (“AVTech”). AVTech is an ICT service provider and national company with offices all over Australia.

    With Australia transitioning to more an innovative and technologically based economy, there is a constant high demand for employees with STEM skills but lack of people in the Australia labour market that meets the qualifications and skills for the jobs required. As such, once our client leaves Australia if his matter is not referred to the Minister, AVTech’s business operations will be affected and to find someone in the current labour market to fil in his position will be difficult. If client’s matter is referred to the Minister, he will be able to continue to contribute his knowledge, skills, and experience to the Australian community and economy.

    We enclose the following for your attention:

    4.    Master of Business’ Testamur and Academic Transcript;

    5.    Confirmation of Employment Letter dated 16 February 2022 and Advance Vision Technology; and

    6.    Our client’s CV.

    Conclusion
    In summary, we respectfully submit that our client’s matter be referred to the Minister for intervention as our client’s case is one where circumstances outside our client’s control, procedural unfairness and the unreasonable intention of policy and regulation lead to unjust results and public interest advocates that the Minster exercise its discretion.

1. The Minister’s Guidelines include as follows:

   The Minister has provided guidance on the types on unique and exceptional circumstances that could be brought to the Minister’s attention.

   Note: This list is not exhaustive. Providing the documents listed or meeting one of the unique or exceptional circumstances below does not mean that your request will be successful.

   Types of unique or exceptional circumstances

   Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

   Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

   Exceptional economic, scientific, cultural or other benefit which would result from the person being permitted to remain in Australia.

   Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

   The person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.

   A person’s particular circumstances or personal characteristics provide a sound basis for believing that there is significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.

2. 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

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

   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.

   …