Ozturk (Migration)

[2022] AATA 4643

Ozturk (Migration) [2022] AATA 4643 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammed Sait Ozturk

REPRESENTATIVE:  Mrs Reyhan Ozdemir (MARN: 1573815)

CASE NUMBER:  1931103

HOME AFFAIRS REFERENCE(S):          BCC2019/4679817

MEMBER:Penelope Hunter

DATE:2 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 02 December 2022 at 2:11pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – member of the family unit – dependent child of the family head – full-time student – part-time employment – wholly or substantially reliant – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cl 408.311; 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 applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 September 2019. The delegate refused to grant the visa on 21 October 2019 on the basis that the applicant did not satisfy the requirements of cl 408.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 408.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of a primary visa applicant, who is the holder of a number of listed visas including a Subclass 408 (Temporary Activity) visa having satisfied the primary criteria for that visa. A copy of the decision record of the delegate has been provided to the Tribunal by the applicant.

3. The applicant appeared before the Tribunal on 1 December 2022 via MS Teams video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The Tribunal also received oral evidence from Mr Hikmet Ozturk, the applicant’s father.

4. The applicant was represented in relation to the review, and his representative also participated in the Tribunal hearing.

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 in this review is whether the applicant is a member of the family unit of the primary visa applicant, and satisfies cl 408.311 of Schedule 2 to the Regulations.

7. 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 is stipulated to apply for the purposes of both the Act and the Regulations.

8. 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:

   ·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).

9. The applicant was born on 30 June 1993 and is 29 years of age. He has applied for the visa on the basis that he is the child of his father, the family head and the primary visa applicant, Mr Hikmet Ozturk.

10. As the child of the family head the applicant must meet certain dependency requirements under paragraph 1.05A(1)(b) of the Regulations. Essentially, for a child such as the applicant to meet these requirements they must not be engaged, married or in a de facto relationship, and the child must is to be 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. The delegate notes in their decision record that in support of the visa application, a number of documents were provided including a copy of an enrolment confirmation from Victoria University, recording that the applicant was enrolled in a Bachelor of Business. No further information was provided to the Department regarding the applicant’s dependency on his father.

12. On 1 December 2022, the representative of the applicant submitted several document to the Tribunal with the submission that the material was evidence that the applicant had been a full-time student and dependent on his parents. The Tribunal received the following:

    i.Letter of completion from EVA Graduate Institute confirming that the applicant met the course requirements for a Certificate IV in Business Administration on 7 September 2018.

    ii.Letter of completion from EVA Graduate Institute confirming that the applicant met the course requirements for a Diploma of Business on 15 March 2019.

    iii.Academic Transcript for the applicant issued by Victoria University on 3 August 2022.

    iv.Letter from Victoria University confirming that the applicant has satisfied the requirement of and was granted a Bachelor of Information Systems on 29 July 2022.

13. At the hearing the applicant confirmed that he had ceased studying approximately five months earlier. He claimed that he would not have been able to have undertaken his studies without the financial support of his father. The applicant said that he had been using the months since he completed his study to clear his mind and have a bit of a break and it was his intention to enrol in a masters course next year and further his study. He argued that he would not be able to undertake further full-time study if he was to support himself due to the high cost of rental accommodation and the general costs of daily living. The applicant also told the Tribunal that in his culture, as he was not yet married, he was expected to remain living with the family.

14. The Tribunal discussed with the applicant he definition of a dependent as set out in reg 1.05A(1)(b) of the Regulations and the applicant told the Tribunal that he did not have any incapacity and he confirmed that he was not impacted by any loss of his bodily or mental functions. The applicant said that he had been employed in the past, he had undertaken some Uber driving. However he said that this was only part time and he did not earn enough for his full financial support. The applicant told the Tribunal that he could not obtain full-time employment and support himself financially because he had a future intention to study.

15. The Tribunal asked the applicant whether his father was still the holder of a subclass 408 visa and the applicant responded that his father had applied for a subclass 408 visa. Pursuant to the provisions of s 359AA of the Act the Tribunal invited the applicant to comment on information contained in the Department’s electronic records that his father no longer held a Subclass 408 visa and that this visa had expired on 18 October 2021. The applicant was advised that the information was relevant because if as primary visa applicant his father did not hold a subclass 408 visa, he could not meet the secondary criteria in cl 408.311 of Schedule 2 to the Regulations and this would form a reason for the decision under review being affirmed. The applicant elected to respond immediately and said that his father had applied for another subclass 408 visa the previous year and this application was currently under consideration by the Department.

16. Mr Hikmet Ozturk told the Tribunal that the applicant had joined them when the family had come to Australia based on their culture and belief and until he was married he would remain a member of their family unit. The applicant had travelled to Australia with them as it was his duty as a parent to support him and he did not want the applicant to remain behind in Turkey alone. As a parent he wished for his son to have a good education, in the past the applicant had been dependent on him during his studies and it would devastate the rest of the family if the applicant was not to stay with them while they were in Australia. He further claimed it would be difficult for the applicant to start a life alone in Turkey without the family.

17. The Tribunal has considered the evidence and submissions of the applicant, his representative and Mr Hikmet Ozturk. It is accepted that the applicant is single and that he still resides with the family in the family home. Further, although there is no financial evidence to corroborate the claim, it is also accepted that he may continue to be substantially reliant upon his father for his accommodation and living expenses. However this reliance is because the applicant has been undertaking full time study.

18. The applicant has completed a bachelor qualification in Australia and has the stated intention of progressing to a masters level tertiary qualification. He has confirmed that he has undertaken paid employment in the past as an Uber driver. The Tribunal is not satisfied on the evidence, and the applicant does not claim, that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. It follows that the Tribunal is not satisfied that the applicant is wholly or substantially reliant on his father for this reason. He therefore does not meet the requirements of a dependent child pursuant to reg 1.05(1)(b) of the Regulations. Consequently the applicant also does not satisfy the definition of a member of the family unit as provided in reg 1.12(2) of the Regulations. This is not a matter in which the Tribunal has discretion.

19. Accordingly, the applicant is not the dependent child of Hikmet Ozturk and he does not meet cl 408.311 of Schedule 2 to the Regulations. In the circumstances the decision under review must be affirmed.

    decision

20. The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG).

    Penelope Hunter
    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.

    …