Kaur (Migration)

[2020] AATA 3618

Kaur (Migration) [2020] AATA 3618 (3 August 2020)

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Amanpreet Kaur

CASE NUMBER:  1920427

DIBP REFERENCE(S):  BCC2018/980742

MEMBER:  Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 August 2020 at 10:29 am (SA time)

DATE OF WRITTEN RECORD:                10 August 2020

PLACE OF DECISION:  Adelaide

DECISION:  The Tribunal affirms the decision under review.

Statement made on 10 August 2020 at 6:53pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – member of family unit – primary applicant husband’s visa application refused – applicant and husband since divorced – applicant working in Australia, but has not applied for any other visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.311

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2019 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under the Migration Act 1958 (the Act).

1. At the hearing on 3 August 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by the delegate of the Minister for Immigration, Citizenship, Multicultural Affairs on 16 July 2019 to refuse to grant you an Employer Nomination (Permanent) subclass 186 visa under section 65 of the Migration Act 1958.

1. You applied for a subclass 186 on 1 March 2018 as a member of the family unit of Mr Sukvir Singh. The delegate refused the application for a visa because a requirement for the visa is that an applicant has been granted a subclass 186 visa. Mr Singh’s visa application was refused, and as a result your visa application was also refused.

1. On 1 July 2020 you were invited to provide information to show you are a member of a family unit of a person who holds a subclass 186 visa. You were also invited to provide any other information I should take into account in making a decision. In response you provided a divorce order showing you divorced Mr Singh on 2 November 2019.

1. Today you have told me that in June 2018 Mr Singh went to Canada and has not returned. He did not tell his employer he was not coming back. You think that you should qualify for a visa because you have done nothing wrong and because at the time you were his wife.

1. You have said you are currently working in aged care as a chef, but you have not applied for any other type of visa. You were divorced because after some time Mr Singh sent you papers from Canada but did not have contact with you and that you need a chance to make a future in Australia.

1. In looking at the requirements for the visa you applied for a subclass 186 visa. The criteria for the grant of this visa are set out in part 186 of schedule 2 of the Migration Regulations 1994. There being no suggestion that you meet the primary criteria for the visa you must meet the secondary criteria to be granted the visa. This includes at clause 186.311 that you are a member of the family unit of a person who holds a subclass 186 visa.

1. Mr Singh’s application for a subclass 186 visa was refused. He has not held and does not hold a 186 visa. As a result there is no primary applicant who holds a subclass 186 visa. In addition, you have now divorced Mr Singh and is no longer a member of his family unit. As a result you do not meet clause 186.311 of schedule 2 of the Migration Regulations and the decision under review is affirmed.

1. My decision today is to affirm the decision to refuse to grant a subclass 186 visa.

DECISION

1. The Tribunal affirms the decision under review.

Kate Millar Senior Member