Begum (Migration)

[2019] AATA 188

Begum (Migration) [2019] AATA 188 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdul Ghaffar Khan

Mrs Shahnaz Begum

CASE NUMBER:  1707318

MEMBER:Karen Synon

DATE:18 January 2019

PLACE OF DECISION:  Melbourne

DECISIONS:  The Tribunal has no jurisdiction in relation to the first named applicant.

The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.321 of Schedule 2 to the Regulations

Statement made on 18 January 2019 at 11:17am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – first named applicant – deceased – secondary applicants – member of the same family unit – parents of the primary applicant –decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), r 1.12 Schedule 2 cl 457.321

CASES

V120/00A v MIMA (2002) 116 FCR 576

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 Immigration on 16 March 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 July 2016. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.321 was not met because the review applicants were not members of the family unit of their son, Abuzar Ghaffari Khan, the primary 457 holder, as they were married.

4. The applicants were represented in relation to the review by their registered migration agent.

   Jurisdiction of first named applicant

5. On 20 December 218 the Tribunal was advised that the first named applicant died on 1 Aril 2018.  A copy of his death certificate was provided to the Tribunal.

6. Where a statutory entitlement does not devolve upon another person on an applicant’s death, death will extinguish both the entitlement and the relevant decision maker’s power, including the power of a tribunal upon review.[1]  In these circumstances the Tribunal no longer has jurisdiction in relation to the first named applicant.

   [1] V120/00A v MIMA (2002) 116 FCR 576 at [53].

7. However where two or more applicants have combined their application for review, the death of one review applicant does not affect the validity of the remaining applicant for review.[2]

   [2] In V120/00A v MIMA (2002) 116 FCR 576, Kenny J at [61] in obiter preferred the view that, following the death of a review applicant upon whose claims the other review applicants were dependent, the remaining applicants’ entitlement to review would lapse and the Tribunal would have no power to determine the application. However, this view does not appear to recognise that each review applicant has standing to apply for review in their own right, irrespective of the status of any other applications with which theirs has been combined  (even if the outcome of those other applications may affect their ability to meet the visa criteria). 

8. The Tribunal has proceeded to consider if the second named applicant satisfies cl.457.321.

9. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the second named applicant's favour on the basis of the material before it. It was therefore unnecessary to invite her to appear before the Tribunal to give evidence in relation to the decision under review.

10. For the following reasons, the Tribunal has concluded that the matter, in relation to the second named applicant, should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is if the second named applicant is a member of the family unit of her son, Abuzar Ghaffari Khan, the primary 457 holder and thus satisfies cl.457.321.

12. On 16 July 2016 the second named applicant applied for a subclass 457 visa on the basis of her membership of the family unit of the primary visa holder, her son.  Abuzar Ghaffari Khan’s 457 visa was granted on 16 March 2017.  On 17 March 2017 the second named applicant’s visa was refused on the basis that she and the first named applicant were married and therefore neither could not be a member of the family unit of the primary visa holder on the basis that the definition excludes those who have a spouse or de facto partner: Regulation 1.12(1)(e)(i).

13. As noted above on 1 April 2018, the first named applicant died and consequently the second named applicant is a widow.  The evidence before the Tribunal is that she has not remarried or entered into a de facto relationship.

14. The Tribunal is therefore satisfied that the second named applicant is a member of the family unit of Mr Abuzar Ghaffari Khan and therefore meets cl.457.321.

    DECISIONS

15. The Tribunal has no jurisdiction in relation to the first named applicant.

16. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.321 Schedule 2 to the Regulations

    Karen Synon
    Member