La (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding the refusal of a Business Innovation and Investment (Class EB) visa (subclass 188) for the applicant, who was included as a dependent child of the primary applicant. The applicant had been granted a notification of refusal because he no longer met the requirements of Regulation 188.311 of the Migration Regulations 1994, which stipulated that a dependent child aged 18 or over must be dependent on the primary applicant. The applicant sought referral for Ministerial Intervention, arguing exceptional circumstances, procedural unfairness, and unreasonable application of policy.

The core legal issues before the Tribunal were whether the applicant met the definition of a "member of the family unit" under Regulation 1.12(2)(b)(ii) or (iii) of the Migration Regulations 1994 at the time of the decision, and whether the circumstances warranted Ministerial Intervention. Specifically, the Tribunal had to determine if the applicant, having turned 23, was wholly or substantially reliant on the primary applicant for financial support due to an incapacity for work, as required by Regulation 1.05A(1)(b). The applicant contended that delays in visa processing, the COVID-19 pandemic, and his pursuit of further education had prevented him from meeting the criteria, and that these factors constituted circumstances outside his control and procedural unfairness.

The Tribunal affirmed the decision not to grant the visa, finding that the applicant did not meet the criteria for being a dependent child under Regulation 1.12(2)(b)(ii) or (iii). Regulation 1.12(2)(b)(ii) requires a person aged between 18 and 23 to be dependent, while Regulation 1.12(2)(b)(iii) requires a person aged 23 or over to be dependent due to incapacity for work under Regulation 1.05A(1)(b). The Tribunal noted that the applicant had turned 23 and was not incapacitated for work, nor was he wholly or substantially reliant on the primary applicant for financial support due to such incapacity. While acknowledging the applicant's submissions regarding processing delays and the pandemic, the Tribunal concluded that these circumstances did not alter the applicant's failure to meet the regulatory requirements for dependency. The Tribunal also noted that the applicant could still make a direct request to the Minister for intervention.