Barakat Eid (Migration)

[2022] AATA 4834

Barakat Eid (Migration) [2022] AATA 4834 (5 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ivon del valle Barakat Eid

CASE NUMBER:  2115652

HOME AFFAIRS REFERENCE(S):          BCC2019/6765847

MEMBER:Nicola Findson

DATE:5 November 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 05 November 2022 at 3:05pm

CATCHWORDS 
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – subsequent entrant visa –  applicant was not a member of the family unit of a person who holds a Subclass 485 visa – Tribunal does not have any discretion to waive the requirement of cl.485.311 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.12, Schedule 2, cl 485.311

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 (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 December 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. In this case, the applicant applied for a subsequent entrant visa, as a member of the family unit of her husband, Mr Zein Zaher. The delegate refused to grant the visa, because the applicant’s husband was not the holder of the requisite visa, and accordingly, the applicant did not satisfy cl 485.311 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 25 May 2022, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zaher.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The applicant did not raise any concerns in relation to holding a telephone hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 satisfies the requirements of cl.485.311 for the grant of the visa.

8. Clause 485.311 of Schedule 2 of the Regulations requires either: that the applicant is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the visa and made a combined application with that person; or that the applicant is a member of the family unit of a person who holds a Skilled (Provisional)(Class VC) visa because they satisfied the primary criteria for the grant of a Subclass 485 visa. Member of the family unit is defined in r.1.12 and includes a spouse or de facto partner of the primary applicant.

9. On 21 February 2022, the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that it had information before it indicating that Mr Zaher was granted a Subclass 485 visa on 9 November 2018 which ceased on 9 November 2020.  The Tribunal also advised that current Department records indicated that Mr Zaher was not the holder of a Subclass 485 visa.  The applicant was advised that if the Tribunal were to rely on this information, it may find that she was not a member of the family unit of a person who holds a Subclass 485 visa, and consequently, she may not satisfy the requirements in cl.485.311 and the decision under review may be affirmed.

10. On 21 March 2022, the Tribunal received a response from the applicant.  In the response, it is submitted that the applicant finds herself in a situation which was beyond her control.  The submission explains that the applicant was aware that her husband’s Subclass 485 visa would cease in November 2020.  The submission explains that on 25 February 2020, during the application process (and while her husband’s visa was active), the Department requested the applicant to provide additional documents in support of her application.  On 26 May 2020, the Department made another request that the applicant undergo a health examination.  It is submitted that this later request significantly delayed the process, because the applicant was pregnant at the time.  The submission indicates, and the delegate’s decision supports, that the applicant informed the Department of her circumstances and the expected date of her baby. On 10 November 2020 (which the Tribunal observes was after Mr Zaher’s visa had ceased), the applicant was requested by the Department to provide further information, including her baby’s birth certificate.  The applicant explains in the submission that she did the best she was able to but, given the Covid-19 pandemic, it was not a simple process to apply for and gather the documents required by the Department.  The submission explains that the applicant was unable to provide all the information that had been sought by the Department, before her husband’s visa expired.

11. At the hearing the Tribunal explained to the applicant the requirements of cl.485.311.  In particular, the Tribunal explained that if it found the applicant was not a member of the family unit of a person who holds a Subclass 485 visa it would have to affirm the delegate’s decision.  The applicant repeated the claims and the circumstances giving rise to her not meeting the requirements for the visa set out in the written material before the Tribunal, and both the applicant as well as Mr Zaher expressed their frustration at their situation – including the Departmental process delays which led to the requirements for the visa not being met as well as expensive, unsuccessful, attempts to resolve the situation with the help of a migration lawyer.  The Tribunal acknowledged the stress the applicant had experienced in relation to meeting the requirements of the visa and explained that while it had significant sympathy for her situation, in the circumstances, it is not able to find she is a member of the family unit of a person who holds a Subclass 485 visa as required by cl.485.311.  The applicant indicated that she understood the requirements for the visa.

12. The applicant applied for the visa as a member of the family unit of her husband. On the evidence before it, the Tribunal is not satisfied that at the time of the decision Mr Zaher is the holder of a relevant visa as required by cl.485.311 of Schedule 2 of the Regulations. As such, the Tribunal is not satisfied that the applicant meets the requirements of cl.485.311 for the grant of the visa.

13. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

14. The Tribunal acknowledges the impact of the Covid-19 pandemic on the applicant not meeting the requirements for the visa in this case, and the difficult situation she now faces, as the refusal of the visa means that it appears she will be subject to the bar imposed by s.48 of the Act, which prevents her from making another application in Australia for another temporary or permanent visa.  However, as discussed with the applicant at the hearing, the Tribunal does not have any discretion to waive the requirement of cl.485.311, as it contains no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Nicola Findson
    Member