Dadiala (Migration) - [2022] AATA 1191

Dadiala (Migration) [2022] AATA 1191 (16 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurmeet Singh Dadiala
Mr Karandeep Singh Dadiala
Mrs Tejinder Kaur Dadiala
Mr Manjot Singh Dadiala
REPRESENTATIVE:  Mr Rajiv Dalal
CASE NUMBER:  2113447
HOME AFFAIRS REFERENCE(S):          BCC2019/2772706
MEMBER:Alison Mercer
DATE:16 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Business Skills (Permanent) subclass 888 visa.

Statement made on 16 February 2022 at 3:53pm

CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – member of the family unit – family unit head visa application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359C, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.12; Schedule 2, cls 888.311
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 applicants Business Skills (Permanent) subclass 888 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 May 2019, together with his father (the primary visa applicant) and his mother and sibling (who applied, with the applicant, as members of the family unit of the primary applicant). The delegate refused to grant the visas on 13 September 2021 on the basis that the primary applicant did not meet the primary visa criteria and that the applicant (and his mother and sibling) 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 primary visa applicant at the time of decision.
A review application was lodged with the Tribunal on 3 October 2021 for these refusal decisions. For the reasons set out in its earlier decision of 22 November 2021, the Tribunal found it had no jurisdiction to review the decisions to refuse to grant the applicant’s father, mother and sibling Business Skills (Permanent) subclass 888 visas as the review applications in relation to them were not made in accordance with the relevant legislation.
Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s 347(2)(a) and (3A). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.
On 14 October 2021, the Tribunal wrote to the applicants to advise them that it had formed a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dadiala (Migration)

Details

AGLC: Dadiala (Migration) [2022] AATA 1191
Case: [2022] AATA 1191
Decision Date: 16 February 2022

CaseChat Overview and Summary

This matter concerned an application for a Subclass 888 (Business Innovation and Investment (Permanent)) visa. The applicant sought to be recognised as a member of the family unit of the primary visa applicant, who was their father. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria under clause 888.311 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant qualified as a "member of the family unit" as defined by the Migration Regulations, specifically in relation to clause 888.311. This clause requires the applicant to be a member of the family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria, and to have made a combined application with that person. The Tribunal had to consider the definitions of "member of the family unit" and "dependent child" within the Regulations, and apply them to the applicant's circumstances.

The Tribunal reasoned that while the applicant, aged 17, met the age and dependency requirements to be considered a "dependent child" of their father under regulation 1.12(2)(c) and section 5CA of the Act, a crucial prerequisite was not met. The primary visa applicant, the applicant's father, did not hold a Subclass 888 visa. He had been refused this visa because he did not satisfy the primary criteria, and the Tribunal had previously determined it lacked jurisdiction to review that refusal. Consequently, the applicant could not satisfy clause 888.311 because the condition that the family head must hold a Subclass 888 visa granted on the basis of satisfying the primary criteria was not fulfilled.

Accordingly, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Subclass 888 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. Clause 888.311 requires that, at the time that a decision is made:The applicant:(a) is a member of the family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and(b) made a combined application with that person. 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(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). In this instance, the applicant is claiming to be the child of his father, the family head and primary visa applicant. A person is the ‘dependent child’ of ‘a child or step-child of the family head or their spouse or de facto partner’ if they are the grandchild of the family head or their spouse or de facto partner. ‘Dependent child’ is defined in reg 1.03 of the Regulations. Essentially, the grandchild must not be engaged, married or in a de facto relationship and, have not turned 18, or if they have turned 18, must be ‘dependent’ on the parent within the meaning of reg 1.05A, or be incapacitated for work due to loss of bodily or mental functions. The Tribunal is satisfied from the applicant’s biodata information that he is currently aged 17 and thus is the dependent child of his father, the primary visa applicant as per s.5CA. However, the salient issue in this case is that the family unit head, who is the applicant’s father and the primary visa applicant for the subclass 888 visa, does not hold a subclass 888 visa. As noted above, the applicant’s father was refused a subclass 888 visa on the basis that he did not meet the primary visa criteria, and the Tribunal has already found that it does not have jurisdiction to review that decision. Accordingly, the Tribunal must find that the applicant does not meet cl.888.311 as he is not a member of the family unit of a person who holds a subclass 888 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

Decision

Reasons for decision

The Tribunal must therefore affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Business Skills (Permanent) subclass 888 visa.Alison MercerMember1.12 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.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.