Liu (Migration)

[2024] AATA 946

Liu (Migration) [2024] AATA 946 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kuan Liu
Mr Jing Liu

REPRESENTATIVE:  Mr Wangsheng Yu (MARN: 0639738)

CASE NUMBER:  2109442

HOME AFFAIRS REFERENCE(S):          BCC2020/2874837

MEMBER:R. Skaros

DATE:15 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

Statement made on 15 April 2024 at 2:39pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) visa – Subclass 188 Business Innovation and Investment (Provisional) – member of the family unit – applicants over 24 years – dependent on the primary applicant – no physical or cognitive limitation – primary applicant granted permanent visa – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 48, 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 188.311; rr 1.03, 1.05, 1.12

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 applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 23 December 2020 on the basis of being members of the family unit of the primary visa applicant, Mr Shaoquiang Liu. The delegate refused to grant the visas on 19 July 2021 on the basis that the applicants did not satisfy the requirements of cl 188.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 188.311 of Schedule 2 relevantly requires each applicant to be a member of the family unit of the primary visa applicant at the time of decision.

3. A copy of the delegate’s decision record was provided with the application for review. The applicants were represented in relation to the review by their registered migration agent.

4. On 21 March 2024 the Tribunal wrote to the review applicants advising that it had considered all the material before it relating to their applications, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 9 April 2024. On 22 March 2024 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was provided in the response to hearing form which was signed by the authorised representative on behalf of the applicants. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue before the Tribunal is whether the applicants (Mr Kuan Liu and Mr Jing Liu) satisfy the requirements of cl 188.311.

7. Clause 188.311 requires each applicants to be members of the family unit of a person who holds a Subclass 188 visa on the basis of satisfying the primary criteria for the grant of the visa.

8. 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 reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

9. Regulation 1.12(2) relevantly provides that a person is a member of the family unit of another person (the family head) if the person is a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions.

10. If the applicant has turned 23, then the Tribunal must be satisfied that they are dependent on the family head because they meet reg 1.05A(1)(b), i.e. that they are 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. ‘Incapacitated for work’ means the applicant must be at least substantially incapacitated for paid work.

11. Alternatively, the applicant must satisfy r.1.12(5) which provides for an applicant who, at the time of application, held a specified type of temporary visa on the basis that they were a member of the family unit of the primary applicant, and who are included in the new application for the corresponding specified type of permanent visa, even if they have turned 23 years of age.

12. Mr Kuan Liu is 29 years of age. Mr Jing Liu is 27 years of age. They are brothers. They were included in their father’s initial Business Skills (Provisional) Class EB Business Innovation and Investment (Subclass 188) visa which was granted to them on 12 October 2016. That visa was valid until 12 January 2021.

13. On 23 December 2020, the applicants’ father applied for a further Business Innovation and Investment (Extension) (Subclass 188) visa. He included the applicants in that application as members of the family unit. At that time, Mr Kuan Liu was 25 years of age and Mr Jing Liu was 24 years of age.

14. In assessing their eligibility for the visa, the delegate wrote to the primary visa applicant (Mr Shaoqiang Liu) via the representative requesting evidence to demonstrate that his children (the applicants), who had both turned 23 years of age, were unable to earn a living to support themselves due to a physical or cognitive limitation requiring them to be dependent on their parents.

15. On 23 June 2021, the representative submitted that, in relation to the children aged over 23 years, as this is a Subclass 188 visa under the Extension stream, they are of the view that the criteria for dependency in those matters are treated differently. No further submissions or supporting documents were provided to the Department.

16. Due to their age and the delegate not being satisfied that they were wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions, the delegate refused to grant the applicants the Subclass 188 (Extension) visa. The applicant’s parents, however, were granted the Subclass 188 (Extension) visa on 19 July 2021. That visa has since ceased, and the primary visa applicant now holds a permanent Business Skills (Residence) Subclass 888 visa.

17. The information pertaining to Mr Shaoqiang Liu having been granted a Subclass 888 visa was relevant because the applicants could no longer be members of the family unit of a person who “holds a Subclass 188 visa”. In accordance with the procedure in s 359A of the Act, the applicants were invited to comment on this information in writing. In responding to the information, the representative wrote to the Tribunal stating that they were aware of the change in the visa status of the parents and wished to continue with the review so they may seek the intervention of the Minister as they believe the unjust outcome was due to processing delays by the Department.

18. As noted above, the applicants declined to appear before the Tribunal to give evidence and present arguments. Accordingly, this decision has been made on the evidence before the Tribunal at the time of this decision.

19. Clause 188.311 forms part of the secondary criteria in Part 188.3 and must be satisfied at the time a decision is made on the application. It requires the applicants (as a secondary applicant for the visa) to be members 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 that visa.

20. The applicants are the biological children of Mr Shaoqiang Liu, who was the primary applicant for the visa, and they were included in his application for the Subclass 188 (Extension) visa. At the time of this decision, Mr Shaoqiang Liu is no longer the holder of a Subclass 188 visa as he has, since February 2024, been granted the Business Skills (Subclass 888) visa. Consequently, the applicants are unable to satisfy the cl 188.311 as they are not members of the family unit of a person who holds a Subclass 188 visa.

21. For completeness, the Tribunal also makes the following findings in relation to the definition of member of the family unit as provided for in regs 1.12(2) and 1.12(5).

22. The applicants have both turned 23 years of age. They have not claimed, and no evidence has been provided, which indicates that they are wholly or substantially reliant on their father (or mother) for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions. Accordingly, the Tribunal finds that the applicants do not come within the definition of member of the family unit provided for in r.1.12(2)(b)(iii) and r.1.05A(1)(b).

23. As to whether the applicants can still be considered members of the family unit as provided for in r.1.12(5), as was submitted to the Department, the Tribunal does not consider that they can. This is because there is no provision in the legislation for a person who held a Subclass 188 visa to still be considered a member of the family unit in relation to another application for a Subclass 188 visa in the Extension stream.  The only visa class for which the applicants could have satisfied the member of family unit definition, notwithstanding that they had turned 23 and were not incapacitated for work, is the Business Skills (Residence) (Class EC) (Subclass 888) visa.

24. The Tribunal acknowledges that the applicants’ father has now been granted the Subclass 888 visa, however, this does not assist the applicants because the Tribunal is not conducting a review in respect of a decision to refuse them Subclass 888 visas. It is likely that the applicants could not be included in their father’s Subclass 888 visa application because, having been refused the Subclass 188 visa in the Extension stream, they were affected by s 48 of the Act, which would have prevented them from being included in that application. The Tribunal acknowledge that this is an unfortunate situation for the applicants and their family, particularly given the provision in reg 1.12(5) was specifically introduced for the purpose of keeping families together in cases where they are on a pathway to permanent residence.[1]

    [1] see Explanatory Statement for the Migration Amendment Regulations 2003 (No. 2) (F2003B00105).

25. While reg 1.12(5) provides for circumstances where adult children (who have turned 23 years of age and were not incapacitated for work) are considered members of the family unit in circumstances where the primary visa applicant has applied for a Subclass 888 visa whilst the holder of a Subclass 188 visa, that provision does not provide for circumstances where the primary visa applicant has applied for a further Subclass 188 visa in the Extension stream. The Tribunal considers itself bound by the wording of the legislative provision in r.1.12(5) and has no power to extend the application of that provision to the circumstances of the applicants.

26. For the above reasons, the Tribunal finds that the applicants are not persons to whom r.1.12(5) applies. Therefore, they do not meet the definition of member of family unit as provided for in r.1.12(5).

27. For the above reasons, the Tribunal finds that the applicants are not members of the family unit of a person who holds a Subclass 188 visa. It follows, that cl.188.311 has not been met by the applicants. The decision under review must therefore be affirmed.

28. The representative has indicated that it is the intention of the applicants to seek the intervention of the Minister. The Tribunal notes that following this decision, the applicants will be able to make a request to the Minister under s 351 of the Act.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

    R. Skaros
    Senior 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.

    …

    1.05A Dependent

    (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) …

    (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

….