Gascon (Migration)

This matter concerned an application for a Temporary Activity (Class GG) visa, Subclass 408, by a visa applicant who claimed to be a member of the family unit of the primary applicant. The dispute arose because the primary applicant's visa had ceased and a subsequent application had been refused, meaning she no longer held a Subclass 408 visa at the time of the visa applicant's decision. The decision was made by Christine Kannis, a Member of the Tribunal.

The legal issue before the Tribunal was whether the visa applicant satisfied the secondary criteria under clause 408.311 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the visa applicant was a "member of the family unit" of a person who held one of the visas specified in clause 408.311, and crucially, if that primary applicant held such a visa at the time of the decision.

The Tribunal reasoned that clause 408.311 requires the primary applicant to hold one of the specified visas at the time of the decision. The evidence established that the primary applicant's Subclass 408 visa had ceased and her subsequent application for the same visa was refused. Consequently, at the time of the decision, the primary applicant did not hold a visa that would satisfy clause 408.311. The Tribunal noted that while the visa applicant had been employed full-time in Australia since 2015 and provided some support to her aunt, these circumstances did not alter the clear wording of the regulation. The Tribunal was bound to apply the law as written and had no discretion to waive the requirement that the primary applicant must hold a qualifying visa.

The Tribunal affirmed the decision not to grant the visa applicant a Temporary Activity (Class GG) visa, Subclass 408, as the criteria under clause 408.311 were not met.