KATYAL (Migration)

[2020] AATA 3990

KATYAL (Migration) [2020] AATA 3990 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master KAYAAN KATYAL

CASE NUMBER:  1720721

DIBP REFERENCE(S):  BCC2014/2785474

MEMBER:Karen Synon

DATE:12 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 12 August 2020 at 1:55pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Chef – member of family unit – primary applicant’s visa expired – s.48 bar – request for the Tribunal to delay its decision-making – health requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.321

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 on 16 August 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 October 2014. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that PIC 4006A(1)(c)(ii)(A) was not met for the purposes of cl.457.325.

4. The applicant applied for review of the primary decision on 6 September 2017 and provided a copy of the Department’s decision.

5. The applicant, a 5-year-old child, was represented by his father who appeared before the Tribunal on 12 August 2020 to give evidence and present arguments.  The applicant’s mother was present throughout but declined the opportunity to give evidence.  The Tribunal was assisted by an interpreter Punjabi and English languages although the applicant’s father was able to confidently provide evidence in English.

6. 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 straightforward 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 applicant’s father who gave evidence on his son’s behalf was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.  He did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. While the issue on which the visa was refused at the primary stage was PIC 4006A(1)(c)(ii)(A), on review the issue is cl.457.321 which requires that the applicant is a member of the family unit of a person who is the holder of a Subclass 457 visa as required by cl.457.321.

10. On 10 July 2020 the Tribunal wrote to the applicant, in accordance with s.359(A) inviting comment or a response on the following information:

    Department records indicate that:

    On 21 October 2014 your father, Varun Katyal, lodged an application for a Subclass 457 visa with the Department.  Your mother, Priyanka Katyal, was included with this application as a secondary visa applicant.

    You were born on 28 February 2015 and under Regulation 2.08 you were taken to have made two applications for the grant of a Subclass 457 visa.

    Varun Katyal and Priyanka Katyal were granted Subclass 457 visas on 10 July 2015.  These visas were in effect until 10 July 2019.

    Neither Varun Katyal nor Priyanka Katyal currently hold a 457 visa.

    The applicant was advised that this information was relevant to the review because cl.457.321 requires that the applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa and that if the Tribunal relied on this information in making its decision, it may find that the applicant is not a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

11. Written comments or response was invited by 24 July and that day the following relevant response was received:

    We acknowledge that applicant (sic) does not meet cl.457.321 criteria.  Neither of applicant’s parents does hold a 457 visa at present.

    On behalf of the applicant and the applicant’s parents, we request to AAT to hold the decision on this review application.  Applicant is badly stuck in circumstances.  Applicant’s father…was in the process of lodging a subclass 482 visa application in February 2020 but had to postpone the decision due to COVID-19 outbreak.  He is going to lodge a subclass 482 visa application as soon as the restaurant is back into operation after Victorian lockdown is lifted in August 2020.

    We request to the AAT department to provide the applicant a chance to stay in Australia by holding the decision on this subclass 457 review application for 2-3 months.  Applicant’s father just needs 2-3 months time to process his 482 visa application.

12. In response to the request for a delay of 2-3 months for the applicant's father to lodge a 482, the representative was advised that the Member has considered this request but refused it on the basis that a decision on a secondary applicant's 457 visa application can make no material difference on whether or not a parent can lodge a 482 visa.  As such a hearing had been scheduled.

13. During the hearing the applicant’s father explained that he is a chef and has been in Australia for 11 years.  He has worked for the same employer for seven years at a café in Cremone.  His son has cerebral palsy.  On 2 December 2018 he and his wife applied for a 186 visa and are in Australia on bridging visas associated with this application.  They were unable to include their son in the 186 application because he is section 48 barred.  They completed their medical examinations and provided these with all their other documents but were advised that their son had failed the medical assessment.  The Department wrote to them asking them if they wanted to consider the health waiver and, if so, they needed to demonstrate they have $933,000 in a bank account.  They were told they needed to show this amount of money because the Department did not want their son to be a burden on Australia’s health system.  They tried to organise support from local temples but were unable to get this amount of money.  The applicant’s father confirmed that no decision has been made yet on the 186 visa application although the department sent another letter in May of this year saying there had been a mistake in the calculation and that the applicant’s parents were now required to demonstrate they had $1.2 million in the bank.  The applicant said that while they have been able to get some promises of small amounts, such as $50,000, from local temples they have been unable to get a commitment for the $1.2 million required.

14. The applicant’s father thought it would be an option for him to apply for a 482 visa because they are unsure if their son (the applicant in this case) will be able to go onto the 186 visa.  He talked to his employer in February 2020 but this application has been delayed due to COVID-19.  They need to take their son out of Australia and then return to Australia after a few days and apply to the visa due to the s.48 bar on the applicant.  The difficulty with this is that his son has spent very little time in India and, while the applicant’s father’s parents live there, because his son is totally disabled, he does not know if they will be able to care for him.  The Tribunal explained that whatever visa he applied for in Australia, his son would need to meet the health requirement and this would include an application for a 482 visa.  The Tribunal explained that there would be no utility in it delaying this decision because the only issue before it is whether the applicant, his son, can be granted a 457 visa as a member of his family unit and the clear evidence he had given is that neither he nor his wife are holders of a 457 visa.

15. The applicant’s father said he and his wife have looked after their son from the time he was born and are happy for the government not to give him a Medicare card.  The Tribunal explained that all residents and citizens are entitled to Medicare services and repeated that both the 186 and 482 visas include a health requirement assessment.

16. The applicant’s father asked the Tribunal if it could remove the s.48 bar.  It said it could not and that questions such as this and his son’s eligibility for a bridging visa, while their 186 visa is determined, especially in the current circumstances when they would face great difficulties in being separated from their son if had to return to India, should be directed to the Department.  The applicant’s father said they did not want to compromise his son’s medical treatment which he is receiving in Australia.

17. While Tribunal has considerable sympathy for the applicant and his family it is unable to make a decision in his favour because the clear evidence is that is not a member of the family unit of the person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.  The evidence before the Tribunal is the applicant’s father’s 457 visa expired on 10 July 2019 and that neither he nor the applicant’s mother are currently holders of a 457 visa.

18. Accordingly, cl.457.321 is not met.

19. For the sake of completeness, there is no information that the applicant himself is the subject of an approved nomination.

20. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

21. In relation to the applicant’s father’s request for the Tribunal to delay its decision-making until he is able to apply for a 482 visa, as explained him during the hearing, there is no utility in doing so because a decision on this visa can make no material difference as to whether the applicant’s father can lodge for a 482 visa nor is it relevant to whether his son, the applicant, is able to be included in that visa due to a s.48 bar.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Karen Synon
    Member