Ng (Migration)

[2022] AATA 1924

Ng (Migration) [2022] AATA 1924 (17 January 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Kar Men Ng

CASE NUMBER:  2103112

HOME AFFAIRS REFERENCE(S):           BCC2018/1476843

MEMBER:  Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          17 January 2022 at 11:50 am (QLD time)

DATE OF WRITTEN RECORD:                24 January 2022

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – member of the family unit – dependency requirements – 23 years of age or older – de facto relationship – request for Ministerial referral declined – 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 188.311

APPLICATION FOR REVIEW

1. This is an application for review by Ms Kar Men Ng (the applicant) of a decision made by a delegate of the Minister for Home Affairs (Department) on 24 February 2021 to refuse to grant the applicant a Business Skills (Provisional) Subclass 188 visa under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 17 January 2022, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for a review of a decision made by a delegate of the Department to refuse to grant the applicant a Business Skills (provisional) visa under s 65 of the Act.

1. The criteria for the grant of this visa are set out in Part 188 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant, and other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

1. The applicant applied for the visa on 30 March 2018 as one of the secondary visa applicants in relation to the visa application of Mr Kong Fei Ng, the primary visa applicant for the Subclass 188 visa. The delegate refused to grant the visa on 24 February 2021 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 Mr Ng.

1. The delegate made this decision on the basis that as the applicant is now over the age of 23 years, and she is not dependent on Mr Ng as the term "dependent" is defined for the purposes of being a member of the family unit to satisfy the required secondary criteria.

1. The applicant applied to the Tribunal on 12 March 2021 seeking review of the delegate's decision. The applicant provided a copy of the delegate's decision to the Tribunal when applying.

1. The applicant appeared before the Tribunal by telephone on 17 January 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. 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).

1. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides that ‘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.

1. 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).

1. 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.

1. In this instance the applicant claims to be a member of the family unit of Mr Ng on the basis that she is his daughter and is dependent upon him. The evidence before the Tribunal confirms that the applicant is the daughter of Mr Ng. Additionally the applicant must meet certain dependency requirements, as defined; essentially she must not be engaged, married, or be in a de facto relationship, have not turned 18, or if aged between 18 and 22 years of age she must be ‘dependent’ within the meaning of reg 1.05A(1)(a), or if 23 years of age or older she 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 bodily or mental functions within the meaning of reg 1.05A(1)(b).

1. The evidence before the Tribunal shows that the applicant is now 24 years of age, and, further, the applicant confirmed at the hearing that she is not incapacitated for work. Notably, also, the evidence provided by the applicant at the hearing was that she is in a de facto relationship with her partner who is an Australian citizen. She told the Tribunal that they began living together from 2 April 2021, however, they registered their relationship as a de facto relationship in January 2021. Therefore, as regards the definition of a dependent, there are concerns both in relation to the applicant's age, as she is now over the age of 23, and concerns because the applicant is in a de facto relationship and has been so since at least April 2021, but possibly was in this relationship earlier, since January 2021.

1. The applicant told the Tribunal that she wants the Tribunal to be able to grant the visa so she can continue to be part of her family. She submitted that when the application was made in

2018, she was still under 23 years of age and when the application was lodged it was suggested by the Department that the average waiting time for applications of this type to be processed was 22 months, but instead it took 35 months in relation to this application, such that she was only just over 23 years of age when a decision was made.

1. The applicant also told the Tribunal that their agent in Malaysia knew about the issue with her turning 23 but never said anything to her or her family and they only found out about this when the decision came out. Their agent said that they were hoping that the Department would not notice that aspect. The applicant told the Tribunal that her mother and her sisters all live in Australia and are currently on temporary visitor visas, and that none of them are permanent residents. She also told the Tribunal that her father is a temporary resident in Australia but flies in and out of Malaysia and is not a citizen or permanent resident of Australia.

1. She said her current circumstances are such that she is living with her partner, and that if a decision is made that she has to go back to Malaysia she does not feel safe doing so. This is because back in 2015 her father was kidnapped in Malaysia, and that has affected her; for instance, she has needed to see a psychologist, and there is a psychologist's report in that regard. The Tribunal accepts all of this evidence. The applicant added that her father himself flies in and out of Malaysia except as prevented by COVID-19 international border restrictions.

1. The applicant said she was present in Malaysia when her father went missing in 2015 and she was only 18 years old at the time and this event has traumatised her. Even though her father flies in and out of Malaysia now, she herself has been traumatised and does not feel safe going back to Malaysia. She said if she went back to Malaysia, she would have to live by herself because her relationship with her father is not such that she can live with him. The applicant also told the Tribunal that she first arrived in Australia in 2014 as a student and most recently last arrived in Australia in 2019 and since then has been continuously living in Australia.

1. The Tribunal discussed with the applicant the guidelines that have been issued by the Minister in relation to the types of circumstances that should be present for a matter to be brought to the Minister's attention to consider ministerial intervention seeking a more favourable decision from the Minister, if a visa cannot be granted. The Tribunal discussed these matters with the applicant at the hearing. Given the circumstances, the Tribunal accepts that the applicant is now in a de facto relationship with her partner, an Australian citizen, so there would be compassionate circumstances to some degree affecting the relationship between her and her partner if the decision were to be affirmed and a more favourable decision could not be made. The Tribunal, however, is not satisfied that there are any compassionate circumstances regarding the applicant herself and her age and or health or psychological state, other than as canvassed in relation to her concerns about being traumatised about returning to Malaysia because of her experiences there in 2015.

1. The applicant confirmed at the hearing that there was no suggestion that there was exceptional economic, scientific, cultural or other benefit that would result from her being permitted to remain in Australia. The Tribunal also discussed with the applicant at the hearing that it did not perceive that refusal of the visa constituted circumstances not anticipated by the relevant legislation given that for many years there have been delays in visa processing due to the demand upon the Australian authorities in relation to processing visas and, nonetheless, Parliament has seen fit to legislate to differentiate in relation to someone over the age of 23, without making any exception for circumstances where the person was not 23 at the time of application but had turned 23 at the time of decision.

1. The Tribunal also looked at whether there were any circumstances to consider having regard to the Minister's guidelines and discussed with the applicant whether she had applied for a partner visa or had considered that option. The applicant told the Tribunal that they were considering applying for a partner visa and that she and her partner are now actually talking to a lawyer. They were planning to go ahead with the application if this particular visa application was not successful.

1. When asked if there was anything further that the applicant wished the Tribunal to take into account, she said that she needs to be in Australia with her family and her partner. Additionally, there was an incident where she was harassed in Melbourne and she had to get the police involved, and it was only last year that the Box Hill Police contacted her, and a detective advised that they had found the gentleman in question and she has been asked to do a victim impact statement and it is important that she has her partner's emotional support for this.

1. The Tribunal has taken all these matters into account, however, having regard to the actual criteria to be satisfied, as the applicant has turned 23 the Tribunal must be satisfied that she is dependent on the family head because she is wholly or substantially reliant on the family head for financial support because she is incapacitated for work due to total or partial loss of her 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.

1. The Tribunal observes, although not dealt with or canvassed by the delegate, and not the reason ultimately for the Tribunal's decision today, that the applicant's evidence also is that she has been in a de facto relationship since at least April 2021, and on that basis, this would cause further concern in relation to whether she meets the requirement to be a dependent of the primary visa applicant now, at the time of the decision.

1. In any event, for the reasons given in relation to her age, the applicant does not meet that requirement. It follows that on the evidence before it, the Tribunal finds that the applicant is not a member of the family unit of the person who holds a Subclass 188 visa, therefore the applicant does not satisfy the requirement in cl 188.311 for the grant of a visa as a secondary applicant. There is also no evidence before the Tribunal and the applicant has not claimed that she satisfies the primary criteria for the grant of a Subclass 188 visa. For those reasons the applicant does not satisfy the criteria for the grant of a visa, and as already indicated, the Tribunal's decision is to affirm the decision to refuse to grant the visa.

1. The Tribunal then turns to the question of recommendation for Ministerial intervention requested by the applicant. As has been indicated, the Tribunal is bound to apply the law as it is written. There is no discretion for this Tribunal to waive the need to meet cl 188.311, however, the Tribunal notes that the Minister has an entirely discretionary power pursuant to s 351 of the Act to intervene in a case where the outcome of the review application has been unsuccessful. The Minister's guidelines for intervention are set out on the Department's website and have been discussed by the Tribunal with the applicant at hearing.

1. The Tribunal has considered the applicant's request for the Tribunal to recommend that the Minister intervene. The Tribunal recognises the applicant's long-term association with Australia and with her family, including her mother and sisters who are present in Australia; albeit only temporarily on visitor visas, and the Tribunal also recognises that the applicant's long-term partner and now de facto partner is an Australian citizen.

1. The Tribunal has considered all of the matters indicated in the Ministerial guidelines as canvassed in the earlier recitation of the applicant's evidence and the Tribunal's discussion of the evidence with the applicant. The Tribunal in particular notes that the applicant is considering her options in relation to a partner visa application, and based on the evidence before the Tribunal, although this is not a matter for the Tribunal to conclusively make a ruling on, it would appear that the applicant would have a basis to make a partner visa application.

1. Having regard to all of the circumstances that the applicant has raised, the Tribunal has decided not to refer the matter for Ministerial intervention. The Tribunal notes, however, that as discussed with the applicant at the hearing she could still make a direct request to the Minister under s 351 of the Act. The applicant can follow up with the Department if she wishes to pursue that request herself.

DECISION

1. The Tribunal affirms the decision under review.

Susan Trotter Member