Chander (Migration)

[2018] AATA 1545

Chander (Migration) [2018] AATA 1545 (22 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nakita Kaur Chander
Ms Amelya Kaur Chander
Mr Mason Singh Chander

CASE NUMBER:  1614531

DIBP REFERENCE(S):  CLF2013/255984 CLF2017/120811

MEMBER:Mary Urquhart

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 March 2018 at 12:16 pm (VIC time)

DATE OF WRITTEN RECORD:                11 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a subclass 836 carer visa is met:

·clause 836.224(1)

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – Pubic Interest Criteria 4001 met

LEGISLATION

Migration Act 1958, s. 65, 501(1)

Migration Regulations 1994, schedule 2, cl. 836.211, 836.212, 836.213, 836.221 836.224(1)

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 31 August 2016 to refuse to grant the visa applicants Other Family (Residence) (Class BU) Subclass 836 visas under the Migration Act 1958 (the Act).

2. At the hearing on 22 March 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by the delegate of the Minister for Immigration on 31 August 2016, to refuse to grant the review applicants’ visas, under section 65 of the Migration Act.

4. The applicants applied for the visa on 18 October 2013 and in the present case, the applicant is seeking to satisfy the criteria for the grant of an 836 visa.

5. The criteria for this visa are set out in the schedule 2 to the Regulations and include that section 836.224(1) of schedule 2 to the Regulations is met.

6. The delegate refused to grant the visas on the basis that the secondary applicant, Mr Manmohan Chander did not meet 836.224(1), because he failed to meet the required character test under PIC 4001, or Public Interest Criteria 4001.

7. Accordingly, as one applicant failed to meet the criteria, all applicants failed to meet the criteria.

8. It is 22 March 2018 today.  The primary applicant and the secondary applicants came before the tribunal to give evidence and present arguments.  Others present to do so as well, were Mrs Ajit Kaur Bhalla, Ms Amandeep Kaur Bhalla, Mr Amhit Bhalla and the tribunal was assisted with an interpreter in the Punjabi and English languages.  The applicants were represented, and their representative attended the hearing. 

9. Prior to the hearing, the tribunal received a detailed submission, dated 14 March 2018.

10. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

11. The issue in the present case is whether the secondary applicant, Mr Manmohan Chander, satisfies the Pubic Interest Criteria 4001.

12. The Department file reveals that on 22 July 2014, it refused to grant the visas to the applicants.  As confirmed at the hearing, the sponsors sought a review from the Migration Review Tribunal, as it then was and on 27 August 2015, the MRT remitted the matter back to the Department, with a direction that the applicant met the relevant visa clauses and regulations. 

13. However, on 30 August 2016, the Department refused to grant a visa to the secondary applicant, Mr Chander and subsequently, on 31 August 2016, the Department refused a visa to the primary applicant and the other secondary applicants, on the basis that Mr Manmohan Chander had been refused. 

14. Mr Chander was sent a notice of intention to cancel his visa and then he was arrested and spent some three months in immigration detention. He then sought a review at the AAT. On 22 November 2016, the AAT set aside the decision to refuse his visa on character grounds, on the basis of the discretion in section 501(1) of the Migration Act. The discretion to refuse the visa application on character grounds should not be exercised.

15. The tribunal notes that, in relation to character grounds, there is policy guidance which states if the delegate is satisfied that the applicant passes the character test, or is not satisfied, but decides not to refuse the visa under section 501, the application will be referred back to the processing officer and the applicant will have satisfied Public Interest Criteria 4001.

16. The tribunal has carefully considered the AAT General Division decision, number 2016/4682, which set aside the decision under review and substituted a decision that the discretion in section 501(1) of the Act to refuse the secondary applicant’s visa on character grounds should not be exercised.

17. It was submitted to this review that the decision made by the AAT for the secondary applicant, provides the tribunal with the power to find the primary applicant and other secondary applicants satisfy Public Interest Criteria 4001, given that Mr Chander may be deemed to have satisfied that criteria.

18. On the basis of the oral evidence before it, the legislation and having regard to the AAT decision, the tribunal is satisfied the secondary applicant, Mr Manmohan Chander, satisfies Public Interest Criteria 4001 and accordingly finds all applicants meet clause 836.224(1).

19. The tribunal notes in this matter, another consideration and that is, as previously indicated, on 27 August 2015, the matter was remitted to the Department with the direction that the applicant met clauses 836.211, 836.212, 836.213 and 836.221 of schedule 2 to the Regulations.

20. Given the findings I have made, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

21. The tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a subclass 836 carer visa is met, that is, clause 836.224(1) and they are the orders that I make.

    DECISION

22. The tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a subclass 836 carer visa is met:

    ·clause 836.224(1)

    Mary Urquhart
    Member