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

1. 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).

2. 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.

3. 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.

4. 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.

5. On 14 October 2021, the Tribunal wrote to the applicants to advise them that it had formed a preliminary view that their review application was not valid. Specifically, the Tribunal noted that in order to have made a valid application for review, the applicants had to have been in Australia at the time the delegate refused the visa applications on 13 September 2021 and at the time the review application was lodged with the Tribunal on 3 October 2021. The Tribunal indicated that it appeared that Mr Gurmeet Singh Dadiala (the applicant’s father and the primary visa applicant), Mrs Tejinder Kaur Dadiala (the applicant’s mother), and Mr Karandeep Singh Dadiala (the applicant’s sibling) were not in Australia on those dates (13 September 2021 and 3 October 2021). Therefore, it was of the view that their review applications were not valid. The applicants provided submissions on this issue, noting that due to the COVID19 pandemic and associated international travel restrictions, they had been unable to return to Australia.

6. The Department’s movement records show that the first, second and third named applicants were all outside the migration zone (Australia) on the date that the review application was lodged (3 October 2021). The Tribunal acknowledged the submissions made by the applicants’ agent regarding the compassionate factors in this case, as well as the practical barriers to the first, second and third named applicants being able to return to Australia, but notes that there is no discretion within ss.338 or 347 of the Act (or any other part of the Act or Regulations) which allows the Tribunal to waive or overlook the validity requirement for the applicants to have been in the migration zone at both the date of the primary decision and the lodgement of the review application.

7. The Tribunal therefore found that the first, second and third named applicants were not in the migration zone at the relevant time. As such, their applications for review were not properly made under s 347 and it followed that the Tribunal did not have jurisdiction in this matter in relation to the first, second and third named applicants in this matter. The applicants were notified of this decision on 22 November 2021.

8. On 14 January 2022, the Tribunal wrote to the applicant via his agent to invite him to comment on or respond to potentially adverse information held by the Tribunal, pursuant to s.359A of the Act. The Tribunal advised that in conducting its review, it was required to formally invite the applicant to comment or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason (or part of the reason) for affirming the decision under review.

9. The Tribunal noted that in the Department’s decision of 13 September 2021 to refuse the applicant a visa, the delegate found that the applicant’s father, the primary visa applicant Mr Gurmeet Singh Dadiala, did not satisfy the primary visa criteria in cl.888.212 (which required him to have State/Territory sponsorship that had not ceased). It noted that the applicant, his mother, and his sibling, who were included in this visa application, were also refused subclass 888 visas on the basis that they did not satisfy cl.888.311, which required that they were members of the family unit of a person who held a subclass 888 visa granted on the basis that they satisfied the primary visa criteria. The Tribunal advised that its records indicated that, subsequently, the applicant and his family unit members applied to the Tribunal for review of the decision to refuse them subclass 888 visas on 3 October 2021

10.   The Tribunal further advised that it was writing to seek the applicant’s comments about new, potentially adverse information that affected his case, and that the particulars of the information were that:

·on 22 November 2021, the Tribunal (as presently constituted) found that it had no jurisdiction to review the visa refusals relating to the applicant’s father, mother and sibling, as they were all outside the migration zone (Australia) on the date that the review application was lodged on 3 October 2021 (see AAT/MRD decision 2113447 of 22 November 2021); and

• therefore the Tribunal is unable to review the Department’s decision to refuse

your family members subclass 888 visas.

11.   The Tribunal stated that this information was relevant to the review because, subject to the applicant’s comments or response, it indicated that:

·he was not a member of the family unit of a person who held a subclass 888 visa that was granted on the basis of them meeting the primary visa criteria, as required by cl.888.311 and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it is a requirement that the applicant met cl.888.311 at the time of decision.

1. The Tribunal advised the applicant that if it did not receive his comments or response by 28 January 2022 (or a later date if, before 28 January 2022, he requested an extension of time to respond), the Tribunal might make a decision on the review without taking any further action to obtain his views on the information. The Tribunal further advised the applicant that he would also lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

2. The Tribunal did not receive a response or comments, or a request for an extension of time to do so, by 28 January 2022. It has received no further communication from the applicant or his agent to date. The Tribunal is satisfied that its letter of 14 January 2022 was sent to the email address nominated for correspondence by the applicant (being that of his agent, who is also his authorised recipient for correspondence). There is no evidence from the Tribunal’s records that the email of 14 January 2022 was not delivered or was undeliverable.

3. On 31 January 2022, the Tribunal wrote again to the applicant via his agent to confirm that he had lost his hearing right as result of his failure to respond to the s.359A letter (or seek an extension of time to do so) by the due date. It noted, however, that it would defer making its decision until 15 February 2022 to enable the applicant to provide any further written submissions he wished to make in support of his case.

4. The Tribunal did not receive any further submissions or communications from the applicant or his agent by 15 February 2022.

5. The applicant did not respond 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 the applicant to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where no comments or response has been provided despite this being requested, additional time to do so was provided, and the applicant has had the benefit of representation and advice from a registered migration agent - the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicant’s views about the information contained in its s.359A letter.

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

   CONSIDERATION OF 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. 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.

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 child of his father, the family head and primary visa applicant.

11. 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.

12. 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.

13. 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.

14. 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.

15. The Tribunal must therefore affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Business Skills (Permanent) subclass 888 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.

    …