Hundal (Migration)

[2020] AATA 5458

Hundal (Migration) [2020] AATA 5458 (3 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajaypal Singh Hundal

CASE NUMBER:  1832240

HOME AFFAIRS REFERENCE(S):          BCC2016/4290488

MEMBER:R. Skaros

DATE:3 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 03 November 2020 at 9:48am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – secondary applicant – member of family unit – primary visa applicant refused by the Department – Tribunal has no jurisdiction in respect of that decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338
Migration Regulations 1994 (Cth), Schedule 2, cl 189.311

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 October 2018 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act).

2. The Subclass 189 visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

3. The review applicant in this case is Mr Ajaypal Singh Hundal (Mr Hundal). He applied for the visa on the basis of being a member of the family unit of the primary visa applicant, Ms Karamveer Kaur Uppal (Ms Uppal).

4. Ms Uppal was invited to apply for the visa on 23 November 2016 and applied for the visa on 19 December 2016.

5. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa to Ms Uppal because the delegate was not satisfied that Ms Uppal met PIC 4020 for the purposes of cl. 189.215. The Tribunal does not have jurisdiction in respect of the decision relating to Ms Uppal because she is not a party to this review. Ms Uppal was not in the migration zone at the relevant times and was therefore unable to make a valid application for review of the Department’s decision in relation to her.

6. Mr Hundal however was in Australia at the relevant times and he sought review of the Department’s decision. The only decision made in respect of Mr Hundal relates to the requirement in cl. 189.311 which requires Mr Hundal to be a member of the family unit of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria. 

7. On 16 September 2020 the Tribunal wrote to Mr Hundal pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The Tribunal noted that Mr Hundal applied for this visa on the basis of being a member of the family unit of primary visa applicant, Ms Karamveer Kaur Uppal. The relevant information includes Departmental records indicating that at the time of the visa application, Ms Uppal, who applied for the visa on 19 December 2016, was not in the migration zone and therefore the Department’s decision in relation to her is not a reviewable decision under s.338(2) of the Act and the Department’s decision refusing her Subclass 189 visa stands. The Tribunal explained that it is a requirement for grant of the visa that, as a secondary applicant, Mr Hundal is a member of the family unit of a person who holds a Subclass 189 visa on the basis of satisfying the primary criteria.

8. Mr Hundal responded on 29 September 2020 submitting that if a visa applicant is overseas then a family member can make the application for review. He submitted that as his wife was offshore and he is onshore, the Tribunal accepted his application for review. In support of his written submissions, Mr Hundal provided a copy of the Department’s notification letter, a website extract from My Access Australia, a copy of the Tribunal’s information on making an application for review, an extract from the Tribunal’s website in relation to who can apply for review and extracts from the applicant’s correspondence with digital assistant on the Department’s website. Mr Hundal also provided a copy of the departmental file and email correspondence dated 26 October 2018 with migration agent Christopher Parish.

9. On 8 October 2020, the Tribunal wrote to Mr Hundal inviting him to appear by telephone at a hearing. On 12 October 2020 Mr Hundal contacted the Tribunal to enquire about attending an in-person hearing. Mr Hundal was advised that as he resides in Adelaide and the presiding member is based in Sydney, an in-person hearing is not possible. The Tribunal noted that it can arrange for the hearing to be conducted by video if the applicant so prefers. 

10. Prior to the hearing, on 14 October 2020, Mr Hundal provided a submission addressing the concerns raised by the Department regarding his spouse’s claimed employment, including the documents provided in responses to the Department and a brief overview of each. The documents provided to the Tribunal included the following:

    -Signed letters relating to Ms Uppal’s employment at Addi Alloys (P) Ltd including of her resignation.

    -Documents relating to Addi Alloys (P) Ltd, including of its business registration, tax details and company assessments.

    -Documents relating to discrepancies of the company’s contact details including, letter from the General Manager.

    -Documents relating to the company’s contact details including, screenshots from company website search, online map search and company financial document, ‘justdial’ website extracts and a screenshot of Mr Bhardwaj’s number on Whatsapp.

    -Evidence of Mr Bhardwaj’s position at the company including various links which show him listed as director and a report lodged by police referring to him.

    -Copy of an income tax department card for Maninder Singh and Tanvir Singh.

    -A screenshot showing Udyog Aadhaar Memorandum, showing details of the company’s major activity.

    -Various signed letters confirming that Mr Inderjeet Bhardwaj is General Manager of Addi Alloys Pvt Ltd.  

    -A document from the National Election Watch for Tanveer Singh Dhaliwal including details of his assets.

    -An untranslated affidavit from Tanveer Singh Dhaliwal.

    -E-Way Bill System dated 29 June 2018 for Addi Alloys at Jugiana Punjab.

    -Facebook screenshot for Bhardwaj Inderjit showing he works at Addi Alloys.

11. On 14 October 2020, Mr Hundal contacted the Tribunal indicating that he would like to attend the hearing by video.  Accordingly, on 16 October 2020 the Tribunal wrote to Mr Hundal advising him that it had arranged for the telephone hearing to be conducted by MS Teams video. The Tribunal also informed Mr Hundal that if he wanted the Tribunal to take evidence from his spouse, it could do so by telephone or MS Teams video.   

12. On 20 October 2020 the Tribunal wrote to Mr Hundal providing him with a copy of the non-disclosure certificate issued under s.376 of the Act that was placed on a few documents in the Department’s file. The Tribunal informed Mr Hundal that it would discuss the validity of the certificate and relevance of the information covered by the certificate at the scheduled hearing.

13. Mr Hundal appeared before the Tribunal by MS Teams video on 23 October 2020 to give evidence and present arguments. When asked if Ms Uppal would be giving evidence, Mr Hundal informed the Tribunal that as he is the review applicant, he will be giving evidence in relation to his spouse’s employment. The Tribunal attempted to explain to Mr Hundal that it did not have jurisdiction to review the decision relating to his spouse as she is not a party to the proceedings, however, Mr Hundal insisted that he had sought advice and has been informed that he can apply to review the decision. He stated that he wanted to speak about how immigration had conducted the investigation of his spouse’s employment.

14. In relation to the non-disclosure certificate under s.376 of the Act, which refer to folios 176(a) & (b) of the Department’s file, the public interest reason provided in the certificate is that disclosure may affect personal privacy and information provided in confidence by a third party. As explained to Mr Hundal at the hearing, even if the certificate is valid, the information covered by the certificate, which relates to information provided by third parties relating to his spouse’s claimed employment, is not relevant to the issue in this review, which relates to his eligibility for the visa, as the Tribunal has no jurisdiction to review the decision made in respect of his spouse.   

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether Mr Hundal satisfies to requirement in cl.189.311. This is the ground on which the Department refused his visa. As noted above, the Tribunal does not have jurisdiction to review the decision made in respect of the primary visa applicant (Ms Uppal) as she is not a party to this review.

17. The Tribunal does not accept, as contended by Mr Hundal, that the Tribunal can review the decision relating to Ms Uppal and the claims relating to her employment on the basis of his eligibility to apply to the Tribunal for review.

18. The decision to refuse the grant of a Subclass 189 visa is a reviewable decision under Part 5 of the Act, however, the Tribunal can only review the decision in respect of each applicant if that applicant has a right of review, that is, if that applicant has made a valid application for review.

19. In this case, the only person who has made a valid application for review is Mr Hundal, not Ms Uppal, on this basis the Tribunal considers that the only decision for which the Tribunal has jurisdiction it that which relates to Mr Hundal. 

20. At the hearing Mr Hundal confirmed that he was not seeking the visa on the basis of meeting the primary criteria for the visa and that he had applied for the visa on the basis of his spouse’s skills.

21. Mr Hundal’s visa was refused on the basis that he is not a member of the family unit of a person who, having satisfied the primary criteria, holds a Subclass 189 visa: cl. 189.311. Ms Uppal’s application for the Subclass 189 visa has been refused by the Department and the Tribunal has no jurisdiction in respect of that decision. Therefore, the decision in respect of Ms Uppal stands.

22. When the above was discussed with Mr Hundal at the hearing, he stated that he has been in Australia for over 10 years, he made a combined application with his wife and wanted to review the decision on the file relating to the investigation of the employment. The Tribunal noted that the employment issue related to his spouse’s claims of employment and is not a decision before the Tribunal. Mr Hundal requested to give evidence about the employment claims which he stated also affects him. The Tribunal noted that while it did not consider the evidence to be relevant to the issue in the review, it would nevertheless allow him to say whatever he wished and would make some reference to it in its decision.

23. Mr Hundal stated that departmental officers had doubts about the existence of the factory and that they had provided a large amount of evidence, copies of which were provided to the Tribunal and noted above, relating to the existence of the factory and the general manager. Mr Hundal stated that despite their efforts to obtain a substantial amount of evidence to address the officer’s concern, the evidence was discarded, and no further investigations were undertaken to verify their information. Mr Hundal stated that on the basis of one call the Department decided to disbelieve them and made no effort to undertake any further investigation. He stated that his and his family’s future has been jeopardised because they now have a record suggesting that they have provided non-genuine information which is not true. He stated that they did everything right but were not believed.

24. Mr Hundal requested the Tribunal to consider the evidence regarding his spouse’s employment claims, to which the Tribunal explained that it had no authority to do so as it has no jurisdiction in respect of the decision relating to his spouse.

25. Following the hearing, Mr Hundal wrote to the Tribunal stating that he had sought advice from a legal practitioner and if there is some legal reason why the Tribunal cannot investigate, then to refer the matter to the Minister.

26. The Tribunal has considered the matters raised by Mr Hundal. However, as explained to him at the hearing, the only Part-5 reviewable decision for which the Tribunal has jurisdiction is that which relates to him.

27. In this case, Mr Hundal’s application for the visa was refused because he was not a member of a family unit of a person who, having satisfied the primary criteria, holds a Subclass 189 visa. The evidence before the Tribunal indicates that Mr Hundal is not a member of a family unit of a person who holds a Subclass 189 visa. Nor has Mr Hundal made any claims, and there is no evidence to suggest, that he meets the primary criteria for the grant of the visa.

28. Given the above, the Tribunal finds that Mr Hundal does not satisfy the requirement in cl.189.311 for the grant of the visa as a secondary applicant.

29. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

30. In relation to the request to refer the matter to the Minister for consideration, the Tribunal is not satisfied on the limited evidence before it that the circumstances of this matter fall within the types of circumstances provided for in the ministerial guidelines for referral. However, the Tribunal notes that if the applicant so wishes, he can make a direct request to the Minister

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

    R. Skaros
    Senior Member