NGUYEN (Migration) - [2024] ARTA 13

DECISION AND
REASONS FOR DECISION
NGUYEN (Migration) [2024] ARTA 13 (27 November 2024)
Applicant:Mr Viet Son Nguyen
Respondent:  Minister for Home Affairs
Tribunal Number:  2213189

Tribunal:Glen Cranwell
Place:Brisbane
Date: 27 November 2024
Decision:The Tribunal remits the application for a Business Skills (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 188 visa:
· Regulation 1.05A(1)(b)

Statement made on 27 November 2024 at 9:47am
CATCHWORDS
MIGRATION – Business Skills (Provisional) visa – Subclass 188 Business Innovation and Investment (Provisional) – member of the family unit – wholly or substantially reliant on the primary applicant – incapacity for work – mental illness – partial loss of mental functions – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 188.311; rr 1.03, 1.05, 1.12
STATEMENT OF REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 12 December 2019. The delegate refused to grant the visa on 18 August 2022 on the basis that the applicant 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 the applicant to be a member of the family unit of the primary visa applicant at the time of decision.
The applicant appeared before the Tribunal on 6 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Giang Nguyen, the applicant’s aunt.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant and satisfies cl 188.311.
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. Regulation 1.12(2) in turn provides that a person is a member of the family unit of another person (the family head) if the person is:
·the spouse or de facto partner of the family head;
·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;
·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).
In this instance, the applicant is claiming to be the dependent child of the primary visa applicant, Thi Nga Nguyen.
A person is a member of the family unit of the family head if they are the 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 facto partner). The term ‘child of a person’ is defined in s 5CA of the Act and the term ‘step-child’ is defined in reg 1.03 of the Regulations. The applicant is the biological child of Mrs Nguyen.
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. ‘Incapacitated for work’ means the applicant must be at least substantially incapacitated for paid work.
At the time of this decision, the applicant is 26 years of age. The Tribunal must therefore be satisfied that he is dependent on the family head because he meets reg 1.05A(1)(b). In relation to his claimed incapacity for work, the applicant provided the Department with a statutory declaration dated 5 January 2021. In his statutory declaration, the applicant stated:
·He has lived in Australia since 30 October 2016, and commenced studies at RMIT in February 2017.
·He ceased studies in March 2020 because of deteriorating mental health.
·His mental health issues were exacerbated by the Covid lockdowns in Melbourne.
·He is seeking treatment so that he can recommence his studies ‘as soon as possible’.
·He is emotionally and financially supported by his mother. He lives with his mother and has no other source of income.
At the time of his statutory declaration, the applicant provided the Department with the following supporting documents:
·Referral from Western Health General Practice dated 18 December 2020, noting that the applicant was suffering from ‘Depression with psychotic episode’.
·Report from Sunshine Hospital dated 19 December 2020, noting that the applicant was diagnosed with depression following a suicide attempt.
·Report from Orygen Youth Services dated 31 December 2020, noting that the applicant had a major depressive episode with a recovery period of three to six months, or more in some cases.
The applicant subsequently provided the Department with a report from Dr Stella Kwong, Consultant Psychiatrist, dated 11 October 2021. Dr Kwong opined:
I am glad to report that Viet Son’s mental state has improved to such an extent that he has been weaned off medication and he does not need hospitalization either.
…
It is my opinion that Viet Son continues to suffer from depression … Viet Son’s psychological illness constitutes a partial loss of his mental functioning. With support his is capable of self care but his self management needs his mother’s support at least in the foreseeable future.
…
Currently Viet Son is lacking capacity to live independently. He is currently trusting his mother inexplicably (sic).
Apparently he is wholly reliant on his mother for financial support to meet his basic needs, eg food, clothing, shelters, etc.
It is my opinion that, because of his depression, Viet Son has lost his capacity to work and fully manage himself.
The applicant also provided the Department with a report from Dr Malcolm Hopwood, Consultant Psychiatrist, dated 14 December 2021. Dr Hopwood opined:
On the basis of my interview and the information available to me it is clear that Mr Nguyen is wholly reliant on his mother for financial support as his current (sic) incapacitated for work due to his ongoing Anxiety Disorder. It is thus my opinion that he meets Regulation 1.05A of the Migration Regulations 1994.
…
Mr Nguyen has clearly had recurrent Major Depression but this is now in remission with his effective treatment from his private psychiatrist, Dr Kwong. The major factor predisposing him to this depression is clearly Social Anxiety Disorder from which he continues to suffer. It is his Social Anxiety Disorder that is resulting in his ongoing social avoidance and difficulties returning to study and/or paid employment.
…
Further, it is my opinion that Mr Nguyen’s condition cannot currently be determined to be permanent beyond a five-year period. The likelihood that his Social Anxiety Disorder would remit with effective treatment during this time is I believe greater than a 65% likelihood.
At the hearing, the applicant presented as having a depressed affect. He gave evidence that he continues to be treated by Dr Kwong and takes antidepressant medication daily. He is scared of going outside and is unable to interact with other people properly.
The applicant also stated that he lives with his mother and was totally financially dependent on her. His mother pays for the rent on their house. She pays his medical and other expenses, and gives him an allowance of $100 per week.
The applicant’s aunt, Ms Nguyen, provided evidence in support of the applicant. In particular, Ms Nguyen stated that the applicant suffers from depression, and stays at home and does nothing.
Notwithstanding the applicant’s presentation, the Tribunal noted that it had no contemporaneous evidence from:
·a medical practitioner as to the applicant’s current psychological state and its impact, if any, on his capacity to work; and
·the applicant’s mother to support his claims in relation to financial dependence.
Without this evidence, the Tribunal indicated that it might not be satisfied that the applicant was dependent on his mother for the purposes of r 1.05A(1)(b) as at the time of decision. The Tribunal gave the applicant 14 days following the hearing to provide any additional evidence he wished to rely on.
After the hearing, the applicant provided a report from Dr Ambica Prasad Jha, Consultant Psychiatrist, dated 18 November 2024. Dr Jha opined:
Following assessment of Mr Nguyen, I concur with Professor Hopwood and Dr Kwong, and can find no inconsistences in their conclusions.
…
Mr Nguyen’s severe depression has rendered him incapacitated for work. He lacks the energy and motivation to engage in employment or educational pursuits and is dependent on his mother for all forms of financial support and day-to-day functioning. He spends the majority of his time in bed and requires constant reminders to perform basic tasks, underscoring his dependency on his mother for both his functional and emotional needs.
…
In my opinion Mr Nguyen’s severe depression, coupled with his dependency on his mother for financial and emotional support, satisfies the requirements for incapacity under Regulation 1.05A(1)(b) and confirms his dependency as a family unit member. The reports from Dr Kwong and Professor Hopwood further corroborate this status.
The applicant also provided a statutory declaration from his mother. Mrs Nguyen stated:
We are currently living together (me, my husband, and my son) at [address omitted]. The mortgage repayments are approximately $3,615 per month. We spend around $300.00 per week on food. I estimate that we spend only $25.00 per week on clothing for my son. All bills including the repayment, utility bills, telephone, mobile, internet, insurance and transport are paid by me.
In addition to this, I also transferred $100 per week for my son’s pocket money that he can use for any purpose at his own daily needs.
…
My son attends to his own self care (taking a shower, brushing teeth) with my continuous reminder. He denies doing any other meaning (sic) activities independently. Sometimes I take him for a walk with me as he never wants to go for a walk or leave house without me.
My son doesn’t open up to talk with anyone except me and just locks himself up at home most of the time. He will not be going anywhere without me.
The reports from Dr Hopwood and Dr Kwong indicate that the applicant experienced a major depressive episode in late 2020. The report from Dr Jha indicates that this episode is continuing as at November 2024, and renders him incapable of working. The Tribunal accepts the medical evidence before it, noting the consistency between Dr Jha’s recent report and the earlier reports of Dr Hopwood and Dr Kwong. In particular, the Tribunal finds that the applicant is incapacitated for work due a major depressive disorder, which is a partial loss of his mental functions.
Further, the Tribunal accepts that the evidence of Mrs Nguyen as set out in her statutory declaration. This is consistent with the applicant’s evidence at the hearing. Accordingly, the Tribunal finds that the applicant is wholly reliant on his mother for his basic needs, including food, clothing and shelter.
Having considered the evidence before it, the Tribunal finds that the applicant is dependent on the primary visa applicant for the purposes of r 1.05A(1)(b) such that the applicant is a dependent child of the primary visa applicant and therefore a member of her family unit.
The Tribunal notes that the statutory declaration from Mrs Nguyen states that she is the holder of a bridging visa and is not yet the holder of a Subclass 188 visa. The Tribunal has verified that Mrs Nguyen currently holds a bridging visa, and that a decision on her Subclass 188 visa application is pending. Accordingly, the Tribunal is unable to find that the applicant satisfies cl 188.311 as at the time of this decision. However, the Tribunal will remit the visa application with a direction that the applicant meets r 1.05A(1)(b) in the event Mrs Nguyen is subsequently granted the Subclass 188 visa.
Given the findings above, the appropriate course is to remit the visa application to the Minister to reconsider the remaining criteria for the Subclass 188 visa.
DECISION
The Tribunal remits the application for a Business Skills (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 188 visa:
·Regulation 1.05A(1)(b)
Date(s) of hearing:  6 November 2024
Representative for the Applicant:           Mr Vikas Jain
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) …