Ravindran (Migration)

[2022] AATA 2559

Ravindran (Migration) [2022] AATA 2559 (14 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bawan Ravindran

CASE NUMBER:  1912390

HOME AFFAIRS REFERENCE(S):          BCC2018/3905012

MEMBER:Susan Trotter

DATE:14 April 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 14 April 2022 at 4:18pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – secondary applicant – member of the family unit – dependency requirements – applicant turned 23 – not incapacitated for work – unique and/or exceptional circumstances – serious, ongoing and irreversible harm and continuing hardship – integration into the Australian community – Ministerial Intervention requested – 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 189.311

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 Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, a now 26-year-old citizen of New Zealand, applied for the visa on 24 June 2018 as one of the secondary visa applicants in relation to the visa application of Sivapatham Ravindran, the primary visa applicant for a Subclass 189 visa.

3. The delegate refused to grant the visa on 7 May 2019 on the basis that the applicant did not satisfy the requirements of cl 189.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 the primary visa applicant. The delegate made this decision on the basis that as the applicant had, between the time of application and the time of their decision, turned 23 years of age, he was not dependent on the primary visa applicant as the term "dependent" is defined for the purposes of being a member of the family unit to satisfy the required secondary criteria.

4. The applicant applied to the Tribunal on 19 May 2019 seeking review of the delegate's decision. The applicant provided a copy of the delegate's decision to the Tribunal when applying.

5. The applicant appeared before the Tribunal by video on 7 March 2022 to give evidence and present arguments. The Tribunal also heard evidence from the primary visa applicant. The Tribunal allowed further time after the hearing in order for the applicant to provide further submissions/evidence. That further material has also been taken into account.

6. The Tribunal exercised its discretion to hold the hearing by video conference as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing in this manner 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 video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments, given an opportunity to respond to the matters in issue and to fully participate in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.189.311 of Schedule 2 to the Regulations. That criterion requires that the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

9. Subsection 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 ‘member of the family unit’ has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.

10. 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).

11. 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.

12. In this instance, the applicant is claiming to be the son of the family head, the primary visa applicant. The evidence before the Tribunal confirms that the applicant is the son of the primary visa applicant. However, 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 must be ‘dependent’ within the meaning of r.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.

13. If the applicant has turned 23, then the Tribunal must be satisfied that they are dependent on the family head because they meet r.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.

14. The Tribunal has taken into account the following documentation provided in support of the application:

    (a)  Letter from the primary visa applicant including as follows (unedited):

    Bawan clearly satisfies B2 above, was not 23 years in June 2018 when application was submitted but did turn 23 years in Nov 2018. It is therefore reasonable and fair for me to assume Bawan can be categorised as dependent child at time of application. He is still full time student at Monash University and living with me. I still support him financially and would do so until he complete his studies.

    … There is no indication from the portal documents to imply that the age at the time of processing would be taken as his age.

    My assessment was based on available information on the portal, a reasonable assumptions and interpretation of portal contents.

    (b)  Post-hearing submissions from the applicant in relation to Ministerial Intervention as follows (unedited):

    I am writing to support a request for Ministerial intervention under Section 351 of the Migration Act 1958.

    I have been residing in Australia for the last 14 years and applied as a dependant on my parents’ Skilled Independent Visa application (subclass 189) in 2018. As you may know already, my parents are now Australian citizens but my application was rejected.

    According to the guidelines, Ministerial Intervention requests can be made when there are exceptional circumstances. It could be argued in this case that there were unintended consequences and applications of relevant legislation; leading to an unfair result which warrants the Minister’s intervention.

    More specifically, at the time of application, the information regarding eligibility provided by the Department of Home Affairs was not an accurate reflection of legislative requirements.

    The section describing the definition and eligibility of dependants at the time of application in June 2018 is quoted below:

    “A person will be a MoFU of another person (the family head) if the person:

    A.   is a spouse or de facto partner of the family head

    or

    B.  is 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 facto partner) and:

    1.has not turned 18 or

    2.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

    3.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

    C.  is a dependent child of a person who meets the conditions in paragraph 2.“

    In the set of criteria available to us when the application was made, there was no indication that the eligibility is to be determined at the time of review.
    Given the variability of processing times and the lack of information to the contrary, it would be reasonable to assume that the eligibility was determined at the time of lodgement rather than review.

    For comparison I have quoted the information on eligibility, available as of February 2022:

    “To include your child who is over 18 in your visa application, they must be:

    ·over 18 years of age but not yet turned 23, and dependent on you or your partner, or

    ·over 23 years of age and unable to earn a living to support themselves due to physical or cognitive limitations and dependent on you or your partner

    ·If your child is likely to turn 23 while your application is being processed, you will need to provide evidence they are dependent on you due to disability.
    Provide:

    ·identity documents

    ·documents about their other relationships, if applicable

    ·You must also provide proof the child is dependent on you.

    ·proof of your relationship with the dependant such as a birth certificate or adoption papers

    ·a completed Form 47a Details of a child or other dependent family member aged 18 years or over (307KB PDF)

    ·proof of financial dependency such as bank statements, money transfers and rent receipts

    ·if the child is aged 23 or is likely to turn 23 while your application is being processed, you must also provide a report from a qualified medical practitioner that states they are dependent on you or your partner due to the total or partial loss of their bodily or mental functions

    Note: A child who turns 23 while your application is being processed and who does not meet these requirements cannot satisfy the criteria for this visa.”

    The description of the criteria here I feel gives a more accurate impression of the legislative requirements than what was available previously and more clearly distinguishes the eligibility being assessed at the time of review rather than lodgement.

    It is for these reasons that I feel the rejection of the dependent visa application was not fair. While I understand that the legislation has remained consistent, I feel that the circumstances around its application have changed due to information being more readily available. I imagine that the legislation did not intend to attract applications such as mine but I hope that it’s clear why I applied as a dependent, taking the information available at that time in good faith.

    I ask that you take the above into consideration when assessing my request for Ministerial intervention and am grateful for this consideration.

15. The evidence before the Tribunal shows that the applicant is the child of the primary visa applicant and is now 26 years of age, and, further, the applicant confirmed at the hearing that he is not incapacitated for work.

16. At hearing, the primary visa applicant confirmed that the applicant was 22 years of age at the time of the visa application but turned 23 years of age approximately five months after the visa application was lodged. The primary visa applicant told the Tribunal that he did not include his older children in the visa application but as the applicant was under the age of 23 years, he was included in the visa application. The primary visa applicant said that there was nothing on the Department’s website to indicate that the relevant age was other than the age of the applicant at the time of the visa application. There was nothing on the website saying that the relevant age was at the time of processing. He assumed that it was the applicant’s age at the time of the application that was relevant. The primary visa applicant said he was fully supporting the applicant at the time, while the applicant was undertaking University studies.

17. As discussed at the hearing, the Tribunal has no role to play in relation to how the Department conducts itself, including in relation to what is published on its website. The Tribunal acknowledges the primary visa applicant’s understanding based upon his reading of the Department’s website. However, The Tribunal is required to apply the migration legislation and regulations.

18. The Tribunal discussed with the applicant that the Tribunal cannot change the law. The Tribunal also acknowledged that it accepted that the applicant was not over 23 years of age at the time of the visa application but, by the time of the delegate’s decision, and now, had turned 23 years of age. The Tribunal also acknowledges that, in part, this is due to the time that it took to process the visa application. However, it is not unusual that visa applications take some time to process, and the law is clear on this matter and it is clear that Parliament envisaged that there would be circumstances where an applicant could be under 23 years of age at the time of the visa application and yet be over 23 years of age at the time of decision. That is what the law provides and that is clearly what the Parliament intended, and the Tribunal has no power to change the law.

19. The applicant told the Tribunal that he completed a Bachelor of Architecture at Monash University in November 2021. He is now looking for work but has not yet been successful and considers his search for work has been impeded in part by his visa status and he feels holding a permanent visa would assist these efforts. The family have all been living in Australia for 15 years. He started his education in Australia in Grade 7 and continued with his university studies. All of his connections are with the Australian community. The primary visa applicant told the Tribunal that he had been living in New Zealand for 23 years prior to moving to Australia. Since being granted visas pursuant to the application the subject of this Tribunal application, the primary visa applicant and his wife have since been granted Australian citizenship. His older two children are separately applying for permanent residency. The applicant is also seeking permanent residency and then citizenship, which will open up opportunities for him, including government jobs. The applicant said that even though he can remain in Australia as the holder of a Subclass 444 visa, that does not give him the same certainty as holding a permanent visa, and impacts his job prospects.

20. The Tribunal acknowledges the applicant’s and the primary visa applicant’s submissions, including that their enquiries show that the information now provided on the Department’s website gives more accurate information about the legislative requirements than was available at the time of lodgement of their visa application such that they feel the rejection is unfair.

21. The Tribunal has taken all of these matters into account. However, having regard to the criterion to be satisfied, as the applicant has turned 23, the Tribunal must be satisfied that he is dependent on the family head because he is wholly or substantially reliant on the family head for financial support because he is incapacitated for work due to total or partial loss of his 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.

22. Therefore, the applicant does not satisfy the requirement in cl.189.311 for the grant of the visa as a secondary applicant. There is also no evidence before the Tribunal, and the applicant has not claimed, that he satisfies the primary criteria for the grant of a Subclass 189 visa. The Tribunal is also not satisfied that there are other requirements pursuant to which the Tribunal can consider this matter further.

23. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa and the Tribunal affirms the decision not to grant the visa.

    Ministerial Intervention

24. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to an applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the President’s Direction on Conducting Migration and Refugee Reviews, especially the paragraphs concerning referrals for Ministerial Intervention and the Minister’s Guidelines on ministerial powers (s.351, s.417, and s.501J of the Act) available in the Procedures Advice Manual 3 (the Minister’s Guidelines).[1]

    [1] >

    Among other things, the Minister’s Guidelines state that the Minister may consider exercising his or her discretion in cases that exhibit one or more ‘unique or exceptional circumstances’. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. Without limiting the scope of the consideration, the Tribunal considers the following unique and/or exceptional circumstances to be relevant in this case:

    (a)  compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

    (b)  the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.

1. The Tribunal has taken into account the applicant’s and his father’s evidence and notes the following relevant chronology in relation to the applicant’s time in Australia:

Date	Event
November 1995	Applicant born
2007	Applicant arrives in Australia and has continuously been residing in Australia since then with brief absences outside Australia
24 June 2018	Applicant’s father applies for Subclass 189 visa as primary visa applicant with other members of the family applying as secondary applicants
November 2018	Applicant turns 23
7 May 2019	Department refuses applicant’s Subclass 189 visa application on the basis that he does not meet the secondary criteria for the visa on the basis that he has turned 23 years of age and is not incapacitated from working
21 May 2019	The applicant’s father, the primary visa applicant, and his mother are granted Subclass 189 visas and subsequently are granted Australian citizenship.

1. The Tribunal observes that various statements have been expressed by the relevant Minister from time to time in relation to the ‘member of the family unit’ provisions, including in various Explanatory Statements for amending legislative provisions from time to time as follows:

   (a)  Explanatory Statement for the Migration Amendment Regulations 2003 (No. 2) (F2003B00105) introducing the business skills program, the Minister amended r.1.12(5) to allow Class UR secondary dependent applicants who may exceed the age ceiling upon application for the permanent resident Class DF pathway to enable them to still be considered a dependent based on the ‘member of family unit’ assessment determination at the temporary application stage with it noted that ‘The policy intention of this change is to provide a more certain pathway to permanent residence for provisional business skills visa holders.’

   (b)  Explanatory Statement (F2016L01696) issued for the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016, the Minister remarked that the amended definition of ‘member of the family unit’ was designed to: ‘simplify the provisions to allow a family member who holds a specified temporary visa to be eligible for a further visa where they are no longer a member of the family unit, for example because they are now over 23 years of age. This ensures the family unit is kept together for subsequent visas.’

   (c)   Explanatory Statement issued for the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262) states with respect to r.1.12(5): The amendments ‘update subregulation 1.12(5), which provides that certain persons who are no longer members of the family unit of the primary visa applicant are taken to be members of the family unit for certain visa applications. The provision maintains the eligibility of the family unit in cases where the family is on a pathway to permanent residence from specified temporary visas to specified permanent visas, even though a member or members of the family unit would no longer meet the general rule. For example, a child may have turned 18 (if non-dependent) or 23 (if dependent) and therefore no longer qualify under the general rule.’ These amendments specifically introduced the new visa subclasses into the r.1.12(5) table. Further, in this statement, the Minister emphasised the focus of the legislative amendments in ‘continuing to promote rights relating to family unity.’

   (d)  With the introduction of the new Skilled Regional program in 2019, r.1.12(5) was again amended to include the new visa in ensuring pathways for temporary secondary applicants who no longer meet the dependency requirements to obtain permanent residency based on the initial family unit assessment. Per Migration Amendment (New Skilled Regional Visas) Regulations 2019 (F2019l00578): ‘… at the time of applying for a Subclass 491 visa or Subclass 494 visa, the person may have been a dependent child of the primary applicant, but at the time of applying for a Subclass 191 visa, which may be a number of years later, the person may no longer be a dependent child of the first applicant. This amendment ensures that the person will continue to be a member of the first applicant’s family unit for the purpose of the permanent visa application. The rationale is that, if a family unit is on a pathway to permanent residence, all members of the family unit should be able to progress to permanent residence, even if one or more member of the family unit no longer fall within the general definition of that term in regulation 1.12(2).’

2. The application currently before the Tribunal does not fall within any of what might be called the exceptions provided for in r.1.12(5). However, the legislative provisions generally, and associated explanatory memoranda, reference priority being given to ensuring family units are treated similarly. The applicant has been residing and studying in Australia since commencing studies here in grade 7. His parents are now Australian citizens. The Tribunal recognises that the applicant could continue to remain in Australia as the holder of a Subclass 444 visa. However, having had regard to the circumstances identified, the Tribunal has decided to refer the matter for consideration of Ministerial Intervention. There are a number of matters which in the Tribunal’s view warrant consideration by the Minister including, but not limited to:

   (a)  compassionate circumstances regarding the age and/or health and/or psychological state of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to him.

   (b)  the significant level of the applicant’s integration into the Australian community and his lengthy period in Australia as a lawful non-citizen. The applicant has spent a significant portion of his childhood in Australia, has undertaken all of his secondary and tertiary studies in Australia and spent all of his adult life in Australia. He and his family are fully integrated into the community. The applicant has very commendably applied himself to extensive tertiary studies and has successful completed a Bachelor degree last year, placing himself in a position to be gainfully employed in Australia.

   (c)   the fact that none of the review applicant’s circumstances fall within the ‘inappropriate to consider’ circumstances canvassed in the guidelines.

3. Having taken all of these matters into account, the Tribunal has decided to refer this case to the Department for the Minister’s attention with a respectful recommendation that the Minister’s powers to intervene be exercised under s.351 of the Act.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

   Susan Trotter
   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.

   …