JUNG (Migration)

[2019] AATA 4222

JUNG (Migration) [2019] AATA 4222 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yong Joon JUNG

CASE NUMBER:  1708638

HOME AFFAIRS REFERENCE(S):           BCC2016/4317000, CLF2017/41018

MEMBER:Katie Malyon

DATE:9 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 September 2019 at 4:34 pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – applicant not member of family unit of person who holds Subclass 408 visa – family member’s Subclass 408 visa ceased – Tribunal attempted to contact applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360(3), 363A
Migration Regulations 1994(Cth), r 1.12, Schedule 2, cl 408.311

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 Immigration and Border Protection on 21 December 2016 to refuse to grant the applicant, South Korean national Mr Yong Joon Jung, a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Jung applied for the visa on 21 December 2016. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  Primary applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visa on the basis that Mr Jung did not satisfy cl.408.311 of Schedule 2 to the Regulations because, although he had applied on the basis of being a dependent included in his father’s Subclass 408 visa application, documentation lodged in support of the application confirmed that he had been working and, as such, did not establish his financial dependence on the primary visa applicant for basic needs. A copy of the delegate’s decision was provided to the Tribunal.

   Background

4. On 22 August 2019, the Tribunal wrote to Mr Jung pursuant to s.359A of the Act. In its letter, the Tribunal observed that Mr Jung had applied for a Subclass 488 visa on the basis of being a member of the family unit of his father, Mr Chui Ho Jung. Mr Jung’s father’s visa was granted on 4 April 2017 for 2 years. Departmental records indicate that Chui Ho Jung’s Subclass 408 visa ceased on 4 April 2019. The Tribunal noted that it is a requirement for the grant of a Subclass 408 visa as a secondary applicant that Mr Jung is a member of the family unit of a person who holds a Subclass 408 visa: cl.408.311 of the Regulations.

5. The Tribunal’s letter to Mr Jung was sent to his representative at the email address provided in the review application. The Tribunal has independently confirmed the representative is still a registered migration agent and the email address used by the Tribunal in its letter of 22 August 2019 was correctly identified in the review application lodged with the Tribunal. Mr Jung was requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 5 September 2019. The Tribunal informed Mr Jung that, if it did not receive a response by 5 September 2019 or a request for an extension of time in which to provide a response by that date, he would lose any entitlement to appear before the Tribunal to give evidence and present arguments. No response has been received from Mr Jung, nor has he requested additional time in which to make a response.

6. As Mr Jung has not provided any response to the Tribunal’s s.359A letter, the provisions of s.359C of the Act apply and, pursuant to s.360(3) of the Act, the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

7. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether 23 year old Mr Jung is a ’member of the family unit’ of a person who holds a Subclass 408 visa. The term ‘member of the family unit’ is defined in r.1.12 of the Regulations.

9. Relevantly, r.1.12(2)(b) of Reguations provides that a ‘member of the family unit’ includes:

   A person is a member of the family unit of another person (the family head) if the person is:

   …

   (b) is 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 facto 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

10. The term 'dependent' is defined in r.1.05A(1) of the Regulations as follows:

    Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a) at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

    (ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

    (b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

11. Clause 408.311 of Schedule 2 to the Regulations requires that:

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

    a)a Subclass 408 (Temporary Activity) visa;

12. Review of the Department’s file confirms that Mr Jung applied for his Subclass 408 visa on the basis of being a dependent family member included in the application made by his father, Chui Ho Jung, sponsored by the Sydney Chang-Sung Church.  Both of Mr Jung’s parents were granted their Subclass 408 visas for 2 years commencing 4 April 2017.  As noted above, the delegate was not satisfied, based on information provided, that Mr Jung was dependent on his father for financial support and, accordingly, refused his application. 

13. On 22 August 2019, the Tribunal wrote to Mr Jung pursuant to s.359A of the Act and noted that, based on its review of Departmental records, Chui Ho Jung’s Subclass 408 visa ceased on 4 April 2019. As such, Mr Jung could not be a ‘member of the family unit‘ of a person who satisfies the primary criteria for grant of a Subclass 408 visa. Mr Jung did not respond to the Tribunal’s s.359A letter.

14. Based on the evidence before it and for the reasons given above, the Tribunal finds that the requirements in cl.408.311 of Schedule 2 to the Regulations have not been met by Mr Jung.

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

    DECISION

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

    Katie Malyon

    
    Member