Kaur (Migration)

[2020] AATA 2526

Kaur (Migration) [2020] AATA 2526 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Navjot Kaur
Mr Jagdeep Singh
Miss Gurleen Kaur
Master Jaydeep Singh

CASE NUMBER:  1725648

HOME AFFAIRS REFERENCE(S):          BCC2017/2636861

MEMBER:Keith Kendall

DATE:30 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa and substitutes a decision that the application was invalid and cannot be considered.

The Tribunal affirms the decision not to grant the Employer Nomination (Permanent) (Class EN) visas in relation to the second, third and fourth named applicants.

Statement made on 30 March 2020 at 4:12pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Graphic Pre-press Trades Worker – first applicant passed away prior to the application being made – invalid visa application – decision under review substituted – third applicant is an Australian citizen – strong compassionate circumstances – Ministerial referral – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 69, 349, 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311

CASES
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495

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 2 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 July 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) had been seeking a visa in the Temporary Residence Stream in the position of Graphic Pre-press Trades Worker (ANZSCO 392211).  

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the application was not subject to a nomination that had been approved by the Minister.

6. In the related nomination application of Tara Press Pty Ltd, a delegate of the Minister refused the nomination on 24 August 2017. This decision was affirmed by the Tribunal on 20 September 2019.

7. The delegate refused the application in respect of the secondary applicants as they did not satisfy cl.186.311 of Schedule 2 to the Regulations as they were not members of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa.

8. On 30 July 2019, the applicant’s authorised representative wrote to the Tribunal to advise that the (first named) applicant had passed away. The authorised representative included with this correspondence a copy of the applicant’s death certificate, which indicates that the applicant passed away on 24 July 2017. The authorised representative indicated that they had not been aware of the applicant’s passing at the time the application for review in this matter was lodged.

9. The secondary applicants appeared before the Tribunal on 7 November 2019 to give evidence and present arguments, evidence being taken only from the second named applicant, Mr Jagdeep Singh (the father of the third and fourth named applicants). The secondary applicants were not represented at the hearing.

10. Mr Singh gave evidence to the effect that he had received poor advice from the authorised representative, who he stated was aware of his wife’s passing (the first named applicant) three or four days after her passing. Mr Singh stated that he had received advice at that time that her passing did not affect the visa application. Mr Singh explained that he intended to apply to the Minister for intervention (on advice from the authorised representative) should the decision not to grant the visas be affirmed.

11. Mr Singh also stated at the hearing that his daughter, the third named applicant, had obtained Australian citizenship since the visa application had been refused and produced a copy of his daughter’s Australian Citizenship Certificate dated 31 July 2019, which indicates that citizenship was granted on 23 July 2019.

    First named applicant

12. The applicant passed away on 24 July 2017, with the visa application being lodged on 25 July 2015. As the applicant had passed away prior to the application being made, the visa application for the first named applicant, is therefore, not a valid visa application for the purposes of Subdivision AA of Division 3 of Part 2 of the Migration Act 1958 (the Act).

13. The basis for the above finding is that there is no applicant in respect of the visa application, due to the first named applicant having passed prior to the visa application being lodged.

14. Notwithstanding the invalidity of the application, the decision of the delegate on 2 October 2017 to refuse the application is not rendered invalid pursuant to s.69 of the Act. See also Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495.

15. Consequently, the Tribunal is required to consider the review application, but cannot consider the merits of the delegate’s decision; see Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486.

16. The appropriate decision in this matter, pursuant to s.349(2)(d) of the Act, is to set aside the primary decision and substitute a new decision that the application was not a valid visa application and cannot be considered; see SZANA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 203 at [27].

17. In light of the foregoing, the Tribunal sets aside the decision of the delegate to refuse the Subclass 186 visa to the first named applicant and substitutes a decision that the application for a Subclass 186 visa is not valid and cannot be considered.

    Second and fourth named applicants

18. The second and fourth named applicants were included in the visa application as members of the first named applicant’s family unit.

19. Item 1114B(3)(e) of Part 1 of Schedule 1 to the Regulations states:

    An application by a person claiming to be a member of the family unit of a person who is an applicant for an Employer Nomination (Permanent) (Class EN) visa may be made at the same time as, and combined with, the application by that person.

20. The second and fourth named applicants claimed to be members of the family unit of the first named applicant, who, at that time, was an applicant for an Employer Nomination (Permanent) (Class EN) visa, being the Subclass 186 visa application the subject of the review application. The application made by the second and fourth named applications was made at the same time and combined with that Subclass 186 visa application.

21. On one view, item 1114B(3)(e) may be interpreted as not assisting the second and fourth named applicants in light of the finding in respect of the first named applicant. As the Tribunal has found no valid visa application was made by the first named applicant, item 1114B(3)(e) may be found as not met since there is no application to which this item may attach. Further, a strict reading may also conclude that the second and fourth named applicants are not members of a family unit of a person who was an applicant at the time that they lodged a combined application due to the invalidity of the application in respect of the primary applicant.

22. However, the Tribunal has applied an alternative interpretation. The use of the permissive “may” in the item permitted the second and fourth named applicants to lodge such an application, notwithstanding that the Subclass 186 visa application has subsequently been found to be invalid for the first named applicant. The first named applicant was an applicant, even though that application has subsequently been found to be invalid. On its terms, therefore, item 1114B(3)(e) permits the second and fourth named applicants to have lodged a combined application and does not invalidate their application by that reason alone. The Tribunal notes that the use of permissive language means that this requirement, as it applies to the second and fourth named applicants, is not mandatory and, therefore, the second and fourth named applicants are not required to comply with this item.

23. Further, the Tribunal notes that there is nothing else in Schedule 1 to the Regulations preventing the second and fourth named applicants from making an application in the manner in which they did.

24. On balance, therefore, the Tribunal has applied an interpretation to item 1114B(3)(e) that recognises the application lodged by the second and fourth named applicants as valid.

25. Consequently, the Tribunal is satisfied that the visa application lodged by the second and fourth named applicants is valid. Therefore, the Tribunal is required to review the Department’s decision to refuse the Subclass 186 visa application for the second and fourth named applicants.

26. Clause 186.311(a) of Schedule 2 to the Regulations requires that the applicant be a member of the family unit of a person (in this case, the first named applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa.

27. As the visa application for the first named applicant has been found to be invalid, the first named applicant is not a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa.

28. Consequently, the second and fourth named applicants are not members of a family unit of a person who holds a Subclass 186 visa on the basis described.

29. Therefore, the second and fourth named applicants do not satisfy the requirements of cl.186.311.

    Third named applicant

30. As noted above, the third named applicant was granted Australian citizenship on 23 July 2019.

31. For the reasons given above in relation to the second and fourth named applicants, the Tribunal regards the visa application and review application lodged by the third named applicant (who was a non-citizen at the time of this application) as valid, but it fails to meet the time of application requirements of cl.186.311.

32. However, as the third named applicant has acquired Australian citizenship since the review application was lodged, the requirements of the Act no longer apply to the third named applicant.

    Referral to the Minister

33. The applicant has requested that the Tribunal refer the case to the Department for consideration by the minister pursuant to s.351 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

34. The Minister has issued guidelines setting out the types of unique and exceptional circumstances that would warrant a case being brought to his attention.

35. Included in these unique and exceptional circumstances are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

36. As noted above, the third named applicant obtained Australian citizenship on 23 July 2019. As evidence of this, the second named applicant provided to the Tribunal at the hearing a copy of the third named applicant’s Australian Citizenship Certificate dated 31 July 2019. The third named applicant is ten years old and is the daughter of the second named applicant.

37. The Tribunal also notes that the fourth named applicant is six years old and is the son of the second named applicant.

38. The Tribunal accepts that, based on her age, the third named applicant is dependent on the second named applicant for support. Should the second and fourth named applicants be required to leave Australia, the third named applicant would suffer serious, ongoing and irreversible harm and continuing hardship due to the separation from her sole surviving parent.

39. Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s policy, the Tribunal has decided that it will refer the matter to the Department for the Minister’s consideration.

    DECISION

40. The Tribunal sets aside the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa and substitutes a decision that the application was invalid and cannot be considered.

41. The Tribunal affirms the decision not to grant the Employer Nomination (Permanent) (Class EN) visas in relation to the second, third and fourth named applicants.

    Keith Kendall
    Member