Liu (Migration)

The Administrative Appeals Tribunal considered the eligibility of Mr Kuan Liu and Mr Jing Liu for a Subclass 188 Business Innovation and Investment (Provisional) visa. The applicants, who were brothers aged 29 and 27 respectively, had been included as members of the family unit in their father's initial Subclass 188 visa application. They were subsequently included in their father's application for an extension of this visa. The core dispute revolved around whether they continued to meet the definition of "member of the family unit" under the Migration Regulations 1994, particularly given their ages.

The Tribunal was required to determine if the applicants satisfied clause 188.311 of the Migration Regulations, which mandates that applicants must be members of the family unit of a primary Subclass 188 visa holder. This required an interpretation of regulation 1.12, which defines "member of the family unit." Specifically, the Tribunal had to assess whether the applicants, having turned 23, were dependent on their father in accordance with regulation 1.12(2)(b)(iii) and regulation 1.05A(1)(b). This latter regulation requires a person to be wholly or substantially reliant on another for financial support due to being incapacitated for work due to loss of bodily or mental functions. The Tribunal also considered regulation 1.12(5), which provides an exception for individuals who held a specified temporary visa as a family member and are included in an application for the corresponding permanent visa.

The Tribunal reasoned that for applicants over 23 years of age, dependency requires them to be wholly or substantially reliant on the family head due to an incapacitation for work resulting from a loss of bodily or mental functions. The applicants, Mr Kuan Liu and Mr Jing Liu, were 29 and 27 years old respectively and had not demonstrated any physical or cognitive limitations that would render them incapacitated for work and thus dependent on their father under regulation 1.05A(1)(b). Furthermore, regulation 1.12(5) was not applicable as the applicants were seeking a provisional visa, not the corresponding permanent visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Subclass 188 Business Skills (Provisional) visas. The Tribunal noted that following this decision, the applicants would be able to request Ministerial Intervention under section 351 of the Migration Act 1958.