Kaur (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Temporary Residence Transition stream for a Graphic Pre-press Trades Worker. The primary dispute arose because the first applicant, who was the subject of the visa application, had passed away prior to the application being lodged. The second, third, and fourth applicants were also seeking this visa.

The Tribunal was required to determine the validity of the visa application given the death of the primary applicant before its lodgement. It also had to consider the implications of this invalidity for the applications of the other named applicants, and whether any compassionate circumstances warranted a different outcome, particularly in light of the third applicant's Australian citizenship and the Ministerial guidelines.

The Tribunal reasoned that a visa application is a personal one, and if the primary applicant is deceased at the time of lodgement, the application is rendered invalid and cannot be considered. Consequently, the Tribunal set aside the original decision not to grant the visa to the first applicant, but substituted it with a decision that the application was invalid. The Tribunal affirmed the decisions not to grant the visas to the second, third, and fourth applicants, finding that the invalidity of the primary application meant their applications could not proceed, despite the presence of strong compassionate circumstances and the third applicant's citizenship. The Tribunal noted that the matter would be referred to the Department for the Minister's consideration, acknowledging the discretionary power and policy guidelines.