Chanpen (Migration) - [2024] AATA 2837

Chanpen (Migration) [2024] AATA 2837 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Atiporn Chanpen
CASE NUMBER:  2415979
HOME AFFAIRS REFERENCE(S):          BCC2016/3116092
MEMBER:Alison Mercer
DATE:5 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.

Statement made on 5 July 2024 at 2:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Federal and Family Circuit Court remittal – ‘higher education institution’ – secondary applicant – separated with the primary applicant – member of a family unit – no response to s.359A letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359C, 360
Migration Regulations 1994 (Cth), rr 1.09A, 1.12; Schedule 2, cl 186.311
CASES
Yang v MIAC [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 September 2016. The primary visa applicant was the applicant’s de facto spouse, Alisa Sampantarat. The delegate refused to grant the visas on 9 October 2018 on the basis that the primary visa applicant did not have the required level of English proficiency and was not exempt from having to have this, and that the applicant did not satisfy the requirements of cl 186.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) requiring him to be a member of the family unit of a person who held a subclass 186 visa. Clause 186.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant at the time of the application and at the time of the decision.
The applicants lodged an application for review of these decisions with the Tribunal (differently constituted) on 17 November 2018. They attended a Tribunal hearing on 29 October 2019. On 4 November 2019, the Tribunal made a decision to refuse to grant the applicants subclass 186 visas on the same basis as the delegate (that the primary visa applicant did not satisfy the English requirements and that the applicant was not a member of the family unit of a person who held a subclass 186 visa).
The applicants sought judicial review of the Tribunal’s decision on 28 November 2019. On 25 August 2023, the Federal and Family Circuit Court of Australia remitted the Tribunal’s decision by consent to be heard according to law by a new Tribunal Member. The notes provided indicated that:
The Minister accepts that the decision of the Tribunal is affected by jurisdictional error. The Tribunal applied the wrong Ministerial instrument: it should have applied IMMI 17/058, rather than IMMI 15/083, for the purpose of assessing whether the applicant was a person in a class of persons specified in the instrument in writing for cl 186.222(b) of Schedule 2 to the Migration Regulations 1994 (Cth). That error, in itself, was immaterial as the relevant provision in both instruments was the same. However, the Minister accepts that the Tribunal misdirected itself at law in construing the expression "higher education institution", so far as it applied to such an institution in Australia, as being confined to an education provider that is registered by the Tertiary Education Quality and Standards Agency. The Minister accepts that no such confinement or qualification arises expressly or impliedly, as a matter of construction. The Minister accepts that this error was material to the Tribunal’s decision.
Upon remittal of the matter to the Tribunal, it was constituted to the current Tribunal Member on 13 March 2024.
The primary visa applicant and her agent advised the Tribunal at a hearing on 29 May 2024 that the applicant and the primary applicant had separated permanently during the COVID19 pandemic lockdowns in Melbourne, and that the applicant had returned to Thailand.
Given this advice, the Tribunal created a separate file for the review application of the applicant and removed him from the primary visa applicant’s review application file.
On 14 June 2024, the Tribunal wrote to the applicant at the last advised address for correspondence to invite him, pursuant to s.359A of the Act, to comment on or respond to potentially adverse information held by the Tribunal that was relevant to his case. The Tribunal advised that the Department’s records indicated that the applicant and his partner Alisa Sampantarat applied for subclass 186 visas on 20 September 2016, and that Alisa Sampantarat was the primary visa applicant who was nominated for the visa by an Australian employer. The Tribunal noted that in the Department’s decision of 9 October 2018 to refuse them both visas, the delegate found that:
·Alisa Sampantarat did not satisfy cl.186.222 (the English proficiency requirement) and could not be granted a subclass 186 visa; and
·the applicant did not meet cl.186.311 because he was not a member of the family unit of a person who held a subclass 186 visa.
The Tribunal further noted that the applicant lodged a joint review application with Alisa Sampantarat on 17 October 2018 with the Tribunal against the Department’s decision to refuse to grant them subclass 186 visas, and that the Tribunal (differently constituted) made a decision on 4 November 2019 to affirm the Department’s decision to refuse to grant them both subclass 186 visa applications. The Tribunal advised that they both applied for judicial review of this decision, and on 25 August 2023, the Family and Federal Circuit Court of Australia remitted the review application back to the Tribunal (differently constituted) by consent for reconsideration.
The Tribunal advised the applicant that the particulars of the information it held were as follows:
·on 22 May 2024, the Tribunal received notification from Alisa Sampantarat that the applicant separated from them in 2022;
·at a hearing before the Tribunal on 29 May 2024, Alisa Sampantarat confirmed this information; and
·accordingly, the applicant was no longer the member of a family unit of a person who held a subclass 186 visa.
The Tribunal advised the applicant that this information was relevant to the review because, subject to his comments or response, it indicated that he would not meet the requirement in cl.186.311 to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence to indicate that he met the primary visa criteria in his own right. The Tribunal indicated that this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review in relation to him. It invited him to provide comments or a response by 28 June 2024, noting that if he failed to do so (or failed to request an extension of time to do so) by this date, then he would lose his entitlement to a Tribunal hearing and that the Tribunal might proceed to make its decision on the available evidence, without taking any further steps to obtain his views on the information in the s.359A letter.
The Tribunal did not receive a response or comments, or a request for an extension of time to provide these, by the due date. The Tribunal has received no further communication from him to date. The Tribunal is satisfied that its s.359A letter was sent to the last known email address for the applicant, and it was not returned as ‘undelivered’ or ‘undeliverable.’
Given the above, and the confined nature of the criterion in dispute, the Tribunal considers that it is not unreasonable to now proceed to a decision without taking any further steps to obtain the applicant’s comments on the adverse information.
The applicant has not responded to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit him to appear: see Yang v MIAC [2010] FMCA 890.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant, Alisa Sampantarat, and satisfies cl 186.311.
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.
Regulation 1.12(1) 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 dependent child of the family head or of their spouse or de facto partner;
·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or
·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.
In this instance, the applicant is claiming to be the de facto spouse of the family head/primary visa applicant, Alisa Sampantarat.
A person is a ‘de facto partner’ if they are in a ‘de facto relationship’ with the family head. ‘De facto partner’ is defined in s 5CB the Act, which provides that: the couple must not be married to each other or related by family; the couple must have a mutual commitment to a shared life to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.
When considering whether the above requirements in s 5CB are satisfied and the applicant is the de facto partner of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.
Based on the uncontradicted oral and written evidence of Alisa Sampantarat in 2024 that the applicant and he permanently separated in 2022, no longer lived together, no longer had a mutual commitment to a shared life to the exclusion of all others and that their relationship was no longer continuing, the Tribunal finds that the applicant is not the de facto partner of Alisa Sampantarat as per s 5CB of the Act and r.1.09A of the Regulations.
Accordingly, the Tribunal finds that the applicant is not the de facto partner of the family head and cl 186.311 is not met as there is no other basis on which he is a member of the family unit of the primary visa applicant, Alisa Sampantarat, under r.1.12.
DECISION
The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent).
Alison Mercer
Senior Member
1.12     Member of the family unit
(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)     a spouse or de facto partner of the family head; or
(b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(d)     (Omitted 02/04/2005)
(e)      a relative of the family head or of a spouse or de facto partner of the family head who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.
…
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) …