Harpreet Kaur (Migration)

[2022] AATA 908

Harpreet Kaur (Migration) [2022] AATA 908 (1 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Harpreet Kaur

REPRESENTATIVE:  Mrs Mengyu Sun (MARN: 1573233)

CASE NUMBER:  2002814

HOME AFFAIRS REFERENCE(S):          BCC2019/5585133

MEMBER:R. Skaros

DATE:1 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 01 April 2022 at 12:28pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – member of the family unit – subsequent entrant visa – primary applicant not the holder of the requisite visa – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 485.311; r 1.12

CASES

Hasran v MIAC [2010] FCAFC 40

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 January 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 November 2019. Visa Class VC contains Subclass 485. For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

3. In this case, the applicant applied for a subsequent entrant visa, as a member of the family unit of her husband, Mr Ishaman Singh. The delegate refused to grant the visa because the applicant’s husband was not the holder of the requisite visa and accordingly the applicant did not satisfy cl 485.311 of Schedule 2 to the Regulations.

4. On 21 February 2022 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting her to comment or respond to information which the Tribunal considered would, subject to her comments, be the reason or a part of the reason for affirming the decision under review.

5. The invitation was sent to the last email address provided in connection with the review. It advised that if the applicant did not provide comments, or respond to the invitation, in writing by 7 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain her views on the information, and she would lose any entitlement she may otherwise have had to appear before the Tribunal and present evidence and arguments.

6. On 23 February 2022, after the s.359A invitation was sent, the applicant’s representative advised that he no longer represented the applicant. On 24 February 2022, the Tribunal advised the representative that the Tribunal must send him correspondence in connection with the review unless and until the applicant advised otherwise. On the same day, the Tribunal sent a courtesy copy of the s.359A letter to the applicant, indicating that it required a response by her on a particular date.

7. On 18 March 2022, after the due date for a response to the s.359A invitation, the applicant appointed a new representative to act on her behalf. However, the Tribunal did not receive comments or a response to the information in the s.359A letter within the prescribed period, and nor was an extension of time to respond to that letter requested by the applicant or granted by the Tribunal.

8. In the circumstances of this case, s.359C of the Act applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal is satisfied that the s.359A letter was correctly sent to the applicant’s then representative. It also notes that a copy of that letter was subsequently sent to the applicant. To date, the invited comments and response to the information set out in the s.359A letter has not been provided to the Tribunal and the applicant has not indicated any intention to do so in the future. The Tribunal is not required to delay indefinitely making its decision and in all of the circumstances of this case, the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicant’s comments or response to the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies the requirements of cl.485.311 for the grant of the visa.

12. Clause 485.311 of Schedule 2 of the Regulations requires either: that the applicant is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis satisfying the primary criteria for the visa and made a combined application with that person; or that the applicant is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa because they satisfied the primary criteria for the grant of a Subclass 485 visa. Member of the family unit is defined in r.1.12 and includes a spouse or de facto partner of the primary applicant.

13. In this case, the applicant’s husband was granted a Subclass 485 visa (Post-Study Work Stream) on 16 January 2018 which ceased on 16 January 2020. The delegate was not satisfied that the applicant’s husband was the holder of a requisite visa and was not satisfied that the applicant met the requirements of c.485.311 for the grant of the visa.

14. On 21 February 2022 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that it had information that her husband was granted a Subclass 485 visa on 16 January 2018 which ceased on 16 January 2020. The Tribunal also advised that current Department records indicated that he was not the holder of a relevant visa.

15. The applicant was advised that if the Tribunal were to rely on this information, it may find that she was not a member of the family unit of a person who holds a Subclass 485 visa, and consequently, she may not satisfy the requirements in cl.485.311 and the decision under review may be affirmed. The applicant was invited to provide comments or a response to this information, but she did not do so.

16. The applicant applied for the visa as a member of the family unit of her husband. On the evidence before it, the Tribunal is not satisfied that at the time of the decision the applicant’s husband is the holder of a relevant visa as required by cl.485.311 of Schedule 2 the Regulations. As such, the Tribunal is not satisfied that the applicant meets the requirements of cl.485.311 for the grant of the visa.

17. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    R. Skaros
    Senior Member