Tay (Migration)

[2024] AATA 998

Tay (Migration) [2024] AATA 998 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sean Xian Xiong Tay

REPRESENTATIVE:  Mr Ernest Ng (MARN: 1387964)

CASE NUMBER:  2110893

HOME AFFAIRS REFERENCE(S):          BCC2021/21803970 EGONQR3MLE

MEMBER:R. Skaros

DATE:23 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Business Skills - Business Talent (Permanent) visa.

Statement made on 23 April 2024 at 9:48am

CATCHWORDS

MIGRATION – Business Skills – Business Talent (Permanent) (Class EA) visa – Subclass 132 (Business Talent) – member of the family unit – wholly or substantially reliant on the family head – full-time student over 23 years old – delays in processing – qualification in Australia – graduate employment – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5(1), 65, 351
Migration Regulations 1994, Schedule 2, cl 132.311; 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 Business Skills - Business Talent (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 October 2019. The delegate refused to grant the visa on 4 August 2021 on the basis that the applicant did not satisfy the requirements of cl 132.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 132.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of Mr Ah Gee Tay (his father) at the time of decision.

3. A copy of the delegate’s decision record was provided with the application for review.

4. The applicant appeared before the Tribunal by video on 11 April 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative did not attend the hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant (his father) and satisfies cl 132.311.

8. 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 applies for the purposes of both the Act and the Regulations.

9. 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).

10. In this instance, the applicant is claiming to be a dependent child of his father.

11. 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.

12. 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.

13. 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.

14. In support of his claims of dependency, the applicant provided to the Department various personal documents and the following documents pertaining to his studies:

    ·A letter of offer from the University of Western Australia, dated 26 June 2021, for the Master of Business Analytics degree, together with an offer of partial scholarship.

    ·Charactered Accountants (CA) annual subscription fee for 2020-2021 and 2021-2022, together with related invoices.

15. Also provided was a letter of support from the applicant’s father in which he stated that the applicant, who was 21 years of age at the time of application, is dependent on him. The applicant’s father referred to the delay in processing the visa application due to the COVID-19 pandemic, during which time the applicant turned 23. The applicant’s father contended that the applicant, despite being over 23 years, was still dependent on him financially. The applicant’s father indicated that the applicant was pursuing the Chartered Accountants program, which is of three years duration, for which he has been paying the fees. He also referred to the applicant’s Master of Business Analytics, a one-and-a-half-year program, which is estimated to cost $63,158. The applicant’s father said the applicant would not be able to financially support himself and would be reliant on him for the funding of his studies.

16. On review, the Tribunal received a detailed submission from the applicant in which he stated the following: that he satisfies the definition of a dependent under Regulation 1.05A(1)(b) on the grounds that he was wholly reliant for financial support on his parents to meet his basic needs. As at 1 June 2021, he was a student enrolled in the Chartered Accountant Australia and New Zealand (CAANZ) program. During that time, he required financial support from his parents to cover essential expenses such as tuition fees, accommodation, and daily living costs. Without the financial support received from his parents, he would have faced significant challenges in meeting his basic needs. The tuition fees for the CAANZ program totalled $6,482.00. Copies of the invoices for the various modules of study were provided with the submission.

17. The applicant said he was also appealing the decision on grounds of procedural unfairness resulting from the delays in processing. He said when his father submitted the Subclass 132 visa application in October 2019 he was only 21 years old and met the definition of a  dependent under Regulation 1.12 and he expected to remain a dependent of his father when the Subclass 132 visa was granted. However, the grant of the Subclass 132 visa was delayed due to the COVID-19 pandemic, lockdowns, travel restrictions, and disruptions to normal administrative processes which contributed to delays that were unforeseeable and beyond the usual scope of processing times. As a result, the unforeseen delay led to his ineligibility as a dependent of his father. The applicant submitted that if the processing of the application had been completed in a timely manner, he would have met the definition of a dependent, and his application would not have been deemed ineligible. The applicant requested the Tribunal to consider these exceptional circumstances when considering whether he satisfies the requirements for the visa.

18. Prior to the hearing, the Tribunal received further submissions in which the applicant brought to the Tribunal’s attention that he had turned 23 years of age only two months prior to his father (and other members of his family) being granted Subclass 132 visas. The applicant said he would have satisfied the requirements as a dependent of his father had the Department processed the application just two months earlier.

19. The applicant submitted that some of his family members are now Australian citizens and that it is his intention to become an Australian citizen and reside in Australia in the long term. The applicant’s father and younger siblings were granted Australian citizenship and evidence of this was provided to the Tribunal. The applicant said he has been in Australia for the past six years and has cherished every moment of it. He has many friends in Australia. He has travelled throughout Australia and has grown to understand and love Australia’s rich history and culture and would love nothing more than to continue living in Australia.

20. At the hearing the Tribunal took evidence from the applicant about his travel to Australia, studies completed in Australia, employment history, family circumstances and future intentions. As summary of the evidence follows.

21. The applicant was born in Malaysia. He completed his primary education in Malaysia, after which he travelled to Singapore to complete his high school education. He completed high school in Singapore and studied at junior college. He travelled to Australia in 2017 as the holder of a student visa. He completed a Bachler of Commerce (Accounting and Business Law) from the University of Western Australia. He completed this qualification at the end of 2019.

22. In early 2020 he was offered graduate employment with GTS, an insolvency accounting firm, where he worked for about four or five months. He was made redundant due to the COVID-19 pandemic. In July 2020 he joined another accounting firm, Bentleys, as a graduate accountant. In August 2022 the division in which he worked was sold off to another firm and changed its name to Hall Chadwick. This did not affect his employment and he continued to work there as an accountant until June 2023. The applicant gave evidence that he is currently employed with RSM, another accounting firm and that he is also a qualified Chartered Accountant.

23. When asked why he had not pursued a skilled migration pathway, including the graduate skilled visa, after completing his Australian qualifications, the applicant said in hindsight he should have, but because he was studying full time and dependent on his father at the time of the Subclass 132 visa application, they were advised that he should be included in his father’s permanent visa application. He said due to the delay in the processing and COVID-19, he turned 23 during before the Department made its decision.

24. The Tribunal discussed with the applicant the requirements in cl 132.311, and particularly the definitions in regs 1.12 and 1.05A, which requires it to assess, at the time of its decision, whether he is reliant (wholly or substantially) on his father for financial support because of an inability (incapacity) to work due to a total or partial loss of physical or mental functions. The Tribunal noted that the evidence before it indicates he has been employed as an accountant, including as a qualified as a chartered accountant, which was a significant career achievement. The applicant agreed and said he wanted to appear before the Tribunal to explain his circumstances. He said he hoped the Tribunal would understand that he was dependent on his father when the visa application was made, that the delay resulted in him being refused, that his family are now Australian citizens and that there were exceptional circumstances in his case.

25. The Tribunal acknowledges all the matters raised by the applicant, however, as explained to him at the hearing, the Tribunal does not have any discretion in these matters and must make its decision in accordance with the relevant legislative provisions.

26. Clause 132.311 forms part of the secondary criteria in Part 132.3 and must be satisfied at the time a decision is made on the application. It requires the applicant (as a secondary applicant for the visa) to be a member of the family unit of a person who holds a Subclass 132 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).

27. In this case, the applicant’s father, who was the primary applicant for the visa, was granted the Subclass 132 visa on 4 August 2021.

28. For the applicant to be member of the family unit of his father, as provided for in reg 1.12(2)(b), the Tribunal must be satisfied that the applicant, who has turned 23, is dependent on his father for financial support because he is incapacitated for work due to a total or partial loss of his bodily or mental functions: reg 1.05A(1)(b). 

29. The evidence before the Tribunal is that the applicant is a qualified accountant who has been employed in his profession since early 2020. There is no evidence, and the applicant has not claimed, that he has any physical or mental disabilities that would affect his capacity to undertake paid work.

30. Having considered the evidence before it, the Tribunal is not satisfied that the applicant, who has turned 23, is wholly or substantially dependent on his father because he is incapacitated for work due to total or partial loss of his bodily or mental functions. The applicant therefore does not satisfy reg 1.05A(1)(b) and does not come within the meaning of member of the family unit as provided for in reg 1.12(2)(b).

31. Given the above findings, the Tribunal concludes that the applicant is not a member of the family unit of a person who holds a Subclass 132 visa. Therefore, the applicant does not satisfy cl 132.311. In the circumstances, the Tribunal must affirm the decision under review.

32. The Tribunal acknowledges that the applicant has resided in Australia since 2017, including completing qualifications at an Australian university and working as a chartered accountant for various Australian businesses. It is also significant that the applicant’s family members, including his father and siblings, are Australian citizens. While these factors may make this case suitable for referring the matter to the Minister under s 351 of the Act, the applicant has not requested the Tribunal to refer this matter to the Minister. Furthermore, the applicant informed the Tribunal at the hearing that he has a Skilled visa application pending before the Department. In the circumstances, the Tribunal does not consider it appropriate to refer this matter to the Minister as the current Ministerial guidelines indicate that it would be inappropriate for the Minister to consider a matter in circumstances where the applicant has an ongoing application for a substantive visa (either onshore or offshore) with the Department.

33. The Tribunal notes, however, that if the applicant wishes to do so, it will be open for him to make a direct request to the Minister following the Tribunal’s decision.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Business Skills - Business Talent (Permanent).

    R. Skaros
    Senior 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.

    …

    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) …