Gascon (Migration)

[2020] AATA 3207

Gascon (Migration) [2020] AATA 3207 (17 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Abigail Lota Gascon

CASE NUMBER:  1816070

HOME AFFAIRS REFERENCE(S):          BCC2017/4375360

MEMBER:Christine Kannis

DATE:17 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 17 June 2020 at 8:50am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – member of the family unit – primary applicant’s visa had not been renewed – visa applicant employed full-time – dependent on the family head – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 408.311; r 1.05, 1.12

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 24 May 2018 to refuse to grant the visa applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 November 2017. She was a dependent on the application of her mother, Ms Baby Girl Jovy Lota Gascon (the primary applicant). The criteria for the grant of this visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the secondary criteria include cl.408.311.

3. The delegate refused to grant the visa to the visa applicant, finding that she did not meet cl.408.311 of Schedule 2 to Regulations. The delegate was not satisfied that the visa applicant was a “member of the family unit” of the primary applicant.

4. The vis applicant appeared by telephone before the Tribunal on 9 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lydia Cooper.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the visa applicant was given a fair opportunity to give evidence and present arguments.

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 the present case is whether the visa applicant is a member of the family unit of a person who holds a visa mentioned in cl408.311. This is a time of decision criteria.

8. Clause 408.311 contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who has satisfied the primary criteria. At the time of decision the secondary visa applicant must be a “member of the family unit” of a person who holds one of the visas specified in cl.408.311 which says:

   The applicant is a member of the family unit of a person (the primary applicant) who holds any of the following visas granted on the basis of satisfying the primary criteria for the grant of that visa:

   (a)  a Subclass 408 (Temporary Activity) visa;

   (b)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa;

   (c)  a Subclass 402 (Training and Research) visa in the Research stream;

   (d)  a Subclass 416 (Special Program) visa granted on the basis that the primary applicant satisfied the criterion in paragraph 416.222(a) (special program other than a special program of seasonal work);

   (e)  a Subclass 420 (Temporary Work (Entertainment)) visa;

   (f)  a Subclass 488 (Superyacht Crew) visa

9. Prior to the hearing the Tribunal received a written submission from the primary applicant. She said her visa had not been renewed.

10. The visa applicant told the tribunal that she was seeking to be granted a visa on the basis that she was a member of the family unit of the primary applicant. She said there were no other family members who held a visa.

11. The visa applicant told the Tribunal she has been in Australia since 2015. She has been employed in a full-time job since 2015.  She said she and her brother have shared accommodation and food expenses since 2017. She said they have not received any financial assistance from the government or another person.

12. The visa applicant told the Tribunal that she assists her aunty, Ms Cooper, with her medication and attending medical appointments.

13. Ms Cooper told the Tribunal that the visa applicant and her brother are good citizens. She said the visa applicant’s employer has said she is a good worker and they don’t want her to return to the Philippines. Ms Cooper said her husband passed away 16 years ago and she has no other family in Australia. She said she spends a lot of time with the visa applicant and her brother. She said the visa applicant is like her own daughter.

14. Departmental records confirm that the primary applicant’s Subclass 408 visa ceased on 24 December 2018. She applied for another Subclass 408 visa on 22 December 2018, however it was refused on 19 February 2019. The primary applicant then departed Australia on Bridging Visa A.

15. As the primary applicant no longer holds a Subclass 408 visa, the visa applicant cannot satisfy the criteria that she is member of the family unit of a person who holds a Subclass 408 visa. There was nothing before the Tribunal to indicate that at the time of decision the primary applicant holds any of the visas required to satisfy cl.408.311.

16. Accordingly, cl.408.311 is not met.

17. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

18. For completeness the Tribunal notes that if the primary applicant had held a Subclass 408 visa at the time of decision, the visa applicant would still have to satisfy the requirement that she is a member of the family unit of the family head (in this case the primary applicant). Regulation 1.12 says the general rule, where a child of the family head has turned 23, is that the child is a member of the family unit of the family head if the child is, under paragraph 1.05A(1)(b) of the Regulations, dependent on the family head or on the spouse or de facto partner  of the family head. To satisfy r 1.05A(1)(b) the child must be wholly or substantially reliant on the family head for financial support because the child is incapacitated for work due to the total or partial loss of bodily or mental functions.

19. The visa applicant is the child of the family head. She is 29 years of age. The visa applicant told the Tribunal she has been in full-time employment since 2015. There was no evidence to indicate that the visa applicant is incapacitated for work because of total or partial loss of bodily or mental functions. Therefore she would not satisfy the definition of being a member of the family unit of the primary applicant even if she still held a Subclass 408 visa.

    OTHER MATTERS

20. The Tribunal acknowledges that in 2017 the applicant suffered a tragic personal loss when her father was killed in a car accident.  However, the Tribunal is required to be satisfied that cl.408.311 is met, and that it is met in the way set out in in the clear wording of the clause, regardless of the reasons why the requirements are not met or any compassionate circumstances. The Tribunal is bound to apply the law as it is written. There is no discretion for the Tribunal to waive the need to meet cl.408.311.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    Christine Kannis
    Member