Su (Migration)

[2023] AATA 683

Su (Migration) [2023] AATA 683 (21 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiebin Su

REPRESENTATIVE:  Mr Guo Qiang Cai (MARN: 9788823)

CASE NUMBER:  1910064

HOME AFFAIRS REFERENCE(S):          CLF2018/5414 CLF2019/6801

MEMBER:Deputy President Justin Owen

DATE:21 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 March 2023 at 2:08pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – secondary applicant member of family unit of primary applicant mother – dependency –applicant aged over 23 – no claim made or evidence provided as to incapacity for work – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CA, 65, 360(2), (3), 362A
Migration Regulations 1994 (Cth), rr 1.03, 1.05(1)(b), 1.05A, 1.12(2)(b)(ii), Schedule 2, cl 836.321

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 an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 January 2018. The delegate refused to grant the visa on 17 April 2019 on the basis that the applicant did not satisfy the requirements of cl 836.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 836.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant, his mother Ms Huolian Su at the time of decision.

3. On 30 April 2019, the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to refuse his Subclass 836 Carer visa application.

4. On 30 January 2022, the applicant wrote to the Tribunal advising he had appointed a new representative in relation to the review.  On 30 January 2022, the applicant’s new representative wrote to the Tribunal requesting confirmation the applicant’s review was still active.  On 31 January 2022, the Tribunal wrote to the applicant through his new representative confirming this to be the case.

5. On 23 February 2023, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 16 March 2023. The invitation stated that if the applicant did not attend the scheduled hearing, then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

6. On 25 February 2023, the applicant’s representative wrote to the Tribunal requesting postponement of the hearing.  The applicant’s representative claimed the applicant needed time to prepare documentation and stated he as representative had been “entrusted with representation” on 21 February 2022. 

7. On 28 February 2023, the Tribunal responded declining the request for a postponement of the hearing.  The Tribunal notes that the applicant’s representative had in fact been appointed on 28 January 2022, not 21 February 2022: he was appointed by the applicant as his representative for the purposes of this review well over a year ago.  The Tribunal considers the applicant has had adequate time and opportunity to address the key issue before the Tribunal in relation to the applicant: is he a Member of the Family Unit of his mother, the primary visa applicant. The Tribunal provided the relevant forms for the applicant’s representative to access Tribunal/Departmental files under s 362A of the Act. 

8. On 2 March 2023, the applicant’s representative returned to the Tribunal the completed forms.  On 6 March 2023 the Tribunal responded to the applicant’s representative noting discrepancies on the forms, including contact details for the applicant.  The Tribunal provided a further MR6 form to the applicant’s representative.  The applicant’s representative responded, providing a further faulty MR6 ‘Change of Details’ form that did not indicate a new residential address for the applicant.  The Tribunal again requested the applicant complete the MR6 form with updated and correct details.  This was finally received by the Tribunal on 13 March 2023.  The Tribunal provided the applicant with the written materials requested (with the exception of documents partially excluded from disclosure due to the relevant Principles set out in the Privacy Act 1988 (Cth)) on 13 March 2023.

9. On 14 March 2023, the applicant’s representative wrote to the Tribunal, stating that the applicant had decided not to attend the hearing. The applicant’s representative wrote that he had confirmed the applicant’s response. 

10. On 14 March 2023, the Tribunal received the Response to hearing invitation form where the applicant had ticked the box that stated ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. The form has been signed by the applicant and dated 13 March 2023. 

11. The applicant’s representative has confirmed he had received instructions from the applicant to waive the applicant’s right to a hearing.

12. The Tribunal notes that the applicant has indicated that he has provided consent to the Tribunal to finalise the case without a hearing.  The Tribunal is satisfied that the necessary consent has been given under s 360(2) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it.  This matter has therefore been determined on the evidence available to the Tribunal.

13. The applicant was assisted in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this review is whether the applicant is a member of the family unit of his mother, the primary visa applicant, and satisfies cl 836.321.

16. 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 ‘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.

17. 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).

18. In this instance, the applicant is claiming to be the son of the primary visa applicant, Ms Huolian Su.

19. 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.

20. The Tribunal notes the applicant’s birth certificate that was provided to the delegate that names the primary visa applicant Ms Huolian Su as his mother.  The Tribunal is satisfied that the applicant is a child of the family head, Ms Huolian Su: s 5CA of the Act.

21. 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.

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

23. In the circumstances of this case, at the time of decision, the applicant is 27 years of age. 

24. The Tribunal notes from the various forms signed by the applicant as part of his application that he has never been either married or in a de facto relationship.  He claims no fiancée or girlfriend.  There is no evidence before the Tribunal that this situation remains the same today.  For the purposes of this review, the Tribunal is satisfied that at the time of decision, the applicant is not engaged, married or in a de facto relationship. 

25. Given the applicant has turned 23 years of age, the Tribunal has therefore reviewed whether he is dependent on the family head, being his mother Ms Huolian Su, due to his being wholly or substantially reliant on her for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal notes that ‘Incapacitated for work’ means the applicant must be at least substantially incapacitated for paid work.

26. The Tribunal notes the applicant’s completed Form 80 on the Departmental file and notes that he declares he has never been in employment. There is no evidence before the Tribunal he is in gainful employment today.  For the purposes of this review, the Tribunal accepts this claim remains valid at the time of decision.   

27. The Tribunal however notes that there is no claim – or any evidence whatsoever before it – that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions.  No such claim was made to the delegate.  No such claim has been made to the Tribunal since applying for review with the Tribunal almost four years ago.

28. The Tribunal notes however from the evidence before it that the applicant was in fact in full-time education at the time of application.  As outlined in the delegate’s decision record the applicant provided the Tribunal, at the time of application he was studying at Choice Business College for a Diploma of Leadership and Management, with studies commencing on 17 September 2018 and due to conclude on 25 August 2019. The evidence before the Tribunal also demonstrates he studied for a Certificate IV in Spoken and Written English at Choice Business College between 2 April 2018 and 2 September 2018, whilst at the same establishment he studied for a Certificate III in Spoken and Written English from 18 September 2017.  

29. There is no evidence or claim before the Tribunal that the applicant has any disabilities that incapacitate the applicant for work due to the total or partial loss of his bodily or mental functions. The evidence before the Tribunal instead strongly suggests the applicant has been in ongoing, full-time education at the very least until the time of the delegate’s decision.  There is no evidence or claim before the Tribunal that the applicant has incurred any incapacity for work due to the total loss of his bodily or mental functions between this time and now, the time of the Tribunal’s decision.   

30. Subsequently, at the time of decision the applicant does not meet the requirements of reg 1.05A(1)(b), and is not a dependent as defined at reg 1.05A. 

31. At the time of decision, noting the applicant is now 27 years of age, the Tribunal is not satisfied the applicant is a Member of the Family Unit of the primary applicant Ms Huolian Su in accordance with reg 1.12(b)(iii).   

32. Accordingly, the applicant is not the dependent child of the primary visa applicant Ms Huolian Su and cl 836.321 is not met.

    DECISION

33. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU).

    Justin Owen
    Deputy President

    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.

    …