Chen (Migration)

[2023] AATA 3914

Chen (Migration) [2023] AATA 3914 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weiqing Chen

CASE NUMBER:  2101913

HOME AFFAIRS REFERENCE(S):          BCC2019/1031576

MEMBER:Alison Mercer

DATE:14 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 November 2023 at 12:06pm

CATCHWORDS

MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation) – member of the family unit – relationship ceased – parties divorced – limited evidence of employment details – skilled meat worker shortage – decision under review affirmed      

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 5, 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 888.311; rr 1.03, 1.12, 1.15

CASES

Yang v MIAC [2010] FMCA 890

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 on 16 February 2021 to refuse to grant the applicant a Business Skills (Permanent) subclass 888 (Business Innovation) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 March 2019. He was included as a member of the family unit (the spouse) of the primary visa applicant, Ms Junya Xu. The delegate refused to grant the applicant a visa on 16 February 2021 on the basis that he did not satisfy the requirements of cl 888.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 888.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant (Ms Xu) at the time of decision.

3. The delegate noted that Ms Xu’s representative provided evidence to the Department on 21 July 2020 that there were 2 apprehended violence orders made against the applicant in respect of Ms Xu, and that she had filed for divorce on 20 July 2020. The delegate further noted that natural justice letters were sent to the applicant regarding this information on 29 July 2020 and 29 October 2020, following which the representative provided evidence to the Department that Ms Xu’s divorce from the applicant was finalised on 27 December 2020.

4. Given the above, the delegate found the applicant was no longer the spouse of Ms Xu, the primary visa applicant, and did not satisfy r.1.12(2)(a), and thus also could not satisfy cl.888.311. The delegate found that the applicant had not made any claims to satisfy the primary visa criteria in his own right.

5. The Tribunal received a review application from the applicant on 19 February 2021.

6. On 30 October 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act to invite him to comment on or respond to information held by the Tribunal that was potentially adverse to his case. Specifically, the Tribunal noted that in the Department’s decision of 16 February 2021 to refuse him the visa, the delegate found that he did not meet cl.888.311 because he was not a member of the family unit of a person who held a subclass 888 visa or met the primary visa criteria for the grant of a subclass 888 visa in his own right. The Tribunal advised that this was because the Department had been advised by the primary visa applicant, the applicant’s spouse Ms Junya Xu, that she and the applicant had separated, and subsequently were divorced on 27 December 2020. The Tribunal noted tht the applicant was therefore refused a visa because he did not meet the secondary visa criteria in cl.888.311 to be a spouse, and therefore a member of the family unit (as defined in r.1.12(2)(a)), of a person who held a subclass 888 visa, and there was no evidence that he met the primary visa criteria in his own right. The Tribunal further noted that its records indicate that, subsequently, the applicant applied to the Tribunal for review of the decision to refuse to grant him a subclass 888 visa on 19 February 2021.

1. 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.888.311 to be a member of the family unit of a person who held a subclass 888 visa, there was no evidence to indicate that he met the primary visa criteria in his own right, and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review in relation to him.

2. The Tribunal requested that the applicant provide a response or comments by 13 November 2023, noting that if he failed to do so (or failed to seek an extension of time to do so) by that date, he would lose his entitlement to a Tribunal hearing, and the Tribunal might dismiss his review application or proceed to make its decision on the available evidence without taking further steps to obtain his comments or response to the information identified in the Tribunal’s letter.

3. The Tribunal did not receive a response or comments from the applicant by 13 November 2023. Nor did it receive a request for an extension of time to respond by that date. It has received no further communications from the applicant to date.

4. The Tribunal is satisfied that its s.359A letter was sent to the email address for correspondence provided by the applicant in his review application, and there is no evidence that it was not delivered or was undeliverable.

5. The applicant did not respond to the Tribunal’s s.359A letter in the specified timeframe (nor did he seek an extension of time to do so). 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. In the circumstances set out above – where there no evidence that the applicant disputes the evidence of his divorce from his wife provided by her to the Department, and where the applicant did not respond to the s.359A letter - the Tribunal has decided to proceed to a decision without taking any further steps to obtain his comments on or response to the information set out in the Tribunal’s letter of 30 October 2023.

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

   CONSIDERATION OF LAW, 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 and satisfies cl 888.311.

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 the spouse of the family head and primary visa applicant, Ms Junya Xu.

11. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple 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. The definition applies to same sex and different sex couples.

12. When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A 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.

13. The Tribunal finds that Ms Xu provided to the Department a copy of a divorce order made under the Australian Family Law Act 1975 on 26 November 2020 which indicated that the parties were validly married but the grounds for divorce have been proven and an order for the marriage to be terminated was to take effect on 27 December 2020.

14. The Tribunal therefore finds that the applicant and Ms Xu are no longer spouses as they are no longer married to each other in a marriage that is valid under the Migration Act; there is no evidence that they still have a mutual commitment to a shared life as a married couple to the exclusion of all others, or their relationship is genuine and continuing, or that they live together (or do not live separately and apart on a permanent basis).

15. Accordingly, the Tribunal finds that the applicant is not the spouse of Ms Xu under s.5F, having regard to the r.1.15A factors.

16. Given this, it follows that the applicant is not the spouse of the family head and cl 888.311 is not met.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Business Skills (Permanent) visa.

    Alison Mercer
    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.

    …