KAUR (Migration)

This matter concerned an application for review by a child (the applicant) seeking to be recognised as a member of the family unit of Ms Ravinder Kaur, a primary applicant for a Subclass 457 (Temporary Work (Skilled)) visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant qualified as a dependent child of Ms Kaur, who was the holder of a Subclass 457 visa.

The central legal issue before the Tribunal was the interpretation and application of Regulation 1.12 of the Migration Regulations 1994, which defines "member of the family unit." Specifically, the Tribunal had to consider whether the applicant, a five-year-old child, met the criteria of being a dependent child of Ms Kaur, who was the intended family head.

The Tribunal noted that while the applicant was the biological child of Ms Kaur and provided a birth certificate confirming this relationship, the circumstances surrounding Ms Kaur's own visa application were critical. Ms Kaur had initially applied for a Subclass 457 visa before the applicant's birth. Although an application was later made to include the applicant, Ms Kaur subsequently withdrew her initial visa application. A further Subclass 457 visa application was lodged by Ms Kaur, but the applicant was not included in this subsequent application. Crucially, Ms Kaur's subsequent Subclass 457 visa application was refused, and at the time of the Tribunal's decision, she did not hold a Subclass 457 visa, a fact she conceded. The Tribunal found that Ms Kaur's failure to secure an approved nomination was the reason for her visa refusal.

Given that a prerequisite for the applicant to be considered a member of the family unit was that the family head (Ms Kaur) must hold a Subclass 457 visa, and Ms Kaur did not hold such a visa, the Tribunal concluded that this essential requirement was not met. Consequently, the Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.