KAUR (Migration)

[2022] AATA 4958

KAUR (Migration) [2022] AATA 4958 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SEHAJDEEP KAUR

REPRESENTATIVE:  Mr PAWAN KUMAR BHAMBI (MARN: 0801321)

CASE NUMBER:  1917926

HOME AFFAIRS REFERENCE(S):          BCC2016/1176679

MEMBER:Penelope Hunter

DATE:4 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2022 at 12:11pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of the family unit – dependent child – application including the applicant was withdrawn – applicant was not included in subsequent application – no approved nomination – closure of the Subclass 457 visa program – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 457.231; rr 1.03, 1.12

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 Home Affairs to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 March 2016. The delegate refused to grant the visa on 13 June 2019 on the basis that the applicant did not satisfy the requirements of cl 457.321 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 457.321 of Schedule 2 relevantly requires the applicant to be a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria is the holder of a Subclass 457 visa.

3. The applicant, was represented by her mother, Ms Ravinder Kaur, who appeared before the Tribunal on 30 June 2022 via MS Teams video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review, and her representative was present and provided submissions at the hearing.

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

   Consideration of claims and evidence

5. The issue in this review is whether the applicant is a member of the family unit of a primary applicant who is the holder of a Subclass 457 visa.

6. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

7. Regulation 1.12(1) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a dependent child of the family head or of their spouse or de facto partner;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or

   ·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.

8. The applicant is a five year old child, born on 26 July 2016. She is claiming to be the dependant child of Ms Ravinder Kaur. The Tribunal has been provided with the birth certificate of the applicant, and is satisfied that the applicant is the dependent child of Ms  Ravinder Kaur.

9. The delegate in their decision record, a copy of which has been submitted to the Tribunal, sets out that Ms Kaur had applied for a Subclass 457 visa, this visa application was lodged before the birth of the applicant on 17 March 2016. After the birth of the applicant, the application under review was made to include the applicant as a member of Ms Ravinder Kaur’s family unit. However, the delegate also notes that the initial Subclass 457 visa application was withdrawn on 20 September 2016, by Ms Ravinder Kaur and other members of her family unit.

10. A subsequent application was made by Ms Ravinder Kaur for a further Subclass 457 visa on 9 September 2016. The applicant was not included in this visa application. This further Subclass 457 visa was refused by the Department on 22 May 2017. Although Ms Ravinder Kaur had sought a review of this decision, at the time of the delegate’s decision she had not been granted a Subclass 457 visa.

11. Ms Ravinder Kaur told the Tribunal that she sought a further review of the delegate’s decision of 22 May 2017 to this Tribunal. Upon review  this Tribunal, differently constituted, again affirmed the decision to refuse her Subclass 457 visa. She has subsequently gone on to seek a review of that decision before the Federal Circuit and Family Court of Australia. According Ms Ravinder Kaur, this matter has a further date before the Federal Circuit and Family Court of Australia in late November 2022.

12. Ms Ravinder Kaur conceded to the Tribunal that she did not hold a Subclass 457 visa. She told the Tribunal that the reason her visa was refused was because she did not have an approved nomination, and she conceded to the Tribunal that she still does not have an approved nomination. Ms Ravinder Kaur told the Tribunal that she knew that the review application for the applicant could not be successful as she did not hold a Subclass 457 visa.

13. An application was then made to the Tribunal to delay a determination of the matter for a couple of months. Ms Ravinder Kaur claimed that she had been a victim of changes in Departmental policy when they abolished the Subclass 457 visa and she was not in a position to transition to a Subclass 482 visa. She had an intention in the future to apply for another visa, possibly a Subclass 491 and it was hoped that the applicant could be included in this future visa application with the rest of the family.  

14. The Tribunal considered the request to further delay the matter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just and economical and quick. Due to current caseload there had already been a considerable delay in the constitution of the review of the matter. Further, on the material presented to the Tribunal, a delay of the decision was not requested as there was evidence or a likelihood that the circumstances of the applicant would change in the immediate future to alter the outcome of the review application. It was not claimed within the next two months that as primary visa applicant, it was anticipated Ms Ravinder Kaur would be likely to be granted a Subclass 457 visa, so that consequently that the applicant would then satisfy the secondary criteria as a member of her family unit. It was to facilitate a possible future visa application which has not yet been made and over which the Tribunal has no jurisdiction or control. It will not be in relation to a Subclass 457 visa as that class of visa has closed. It would appear that any delay would have limited effect on the outcome of this review application. In these circumstances the Tribunal did not consider a further delay in the determination of the matter to be appropriate or consistent with the Tribunal’s objective.

15. The Tribunal acknowledges that Ms Ravinder Kaur and the remainder of the applicant’s family have taken the decision to refuse the primary application for the Subclass 457 visa on further review to the Federal Circuit and Family Court of Australia. However, Ms Ravinder Kaur conceded that she does not currently hold a Subclass 457 visa and the matter is no expected to have a hearing for at least a further five months. It is open for them to seek to join this matter to those proceedings and in the circumstances the Tribunal was not satisfied that there was a reason to further delay the matter under review.

16. At the time of this decision, the evidence before the Tribunal is that Ms Ravinder Kaur, as primary visa applicant in relation to the applicant does not hold a Subclass 457 visa. There is no evidence before the Tribunal that any other member of the applicant’s family unit hold a Subclass 457 visa having satisfied the primary criteria, or the applicant herself would satisfy the primary criteria for the grant of a Subclass 457 visa. Therefore the applicant does not satisfy cl 457.321 of Schedule 2 to the Regulations.

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

    DECISION

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

    Penelope Hunter
    Member

    1.12     Member of the family unit

    (1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (d)     (Omitted 02/04/2005)

    (e)      a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)does not have a spouse or de facto partner; and

    (ii)is usually resident in the family head’s household; and

    (iii)is dependent on the family head.

    …