Kiriella Gurunnanselage (Migration)

[2019] AATA 6724

Kiriella Gurunnanselage (Migration) [2019] AATA 6724 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anuradh Padhmakumara Kiriella Gurunnanselage

CASE NUMBER:  1932032

HOME AFFAIRS REFERENCE(S):          BCC2016/1595225

MEMBER:Sean Baker

DATE:6 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 06 December 2019 at 9:52am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – membership of the family unit – relationship ceased – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 362B
Migration Regulations 1994, Schedule 2, cl 186.311

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 7 December 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant’s then wife applied for the visa on 29 April 2016 and the applicant was listed as a member of her family unit. 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. The delegate refused to grant the visa because the applicant did not meet cl.186.311 of Schedule 2 to the Regulations because the applicant’s then wife was unable to meet the primary criteria. In the present case, the applicant sought review of the refusal solely as a member of his then wife’s family unit.

5. The Tribunal received information from the applicant’s former wife that they were separated. The applicant’s former wife then provided copies of divorce papers. At this stage the Tribunal split the review applications and proceeded, separately, to make a decision on the applicant’s ex-wife’s case.

6. The Tribunal sent the applicant an invitation to comment on adverse information – that is, that he was no longer in a relationship with his former wife. The applicant responded informing the tribunal that he was no longer in a relationship with his wife, and had no interest in the migration review lodged by her and he had lodged a divorce already. The Tribunal corresponded seeking an indication of whether his email indicated he intended to withdraw. He did not respond.

7. Therefore, on 15 November 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 5 December 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. This letter was sent to the applicant’s authorised recipient by email, as required by the legislative scheme. The authorised recipient responded to the invitation. Because the applicant’s authorised recipient had earlier advised they were no longer acting for the applicant, a letter was also sent, by post, to the last known address of the applicant. 

8. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that  the review applicant was properly invited to a hearing in accordance with s.379A(5), sent to his authorised recipient, and that a reasonable period was allowed for the invitation, sent by post to the applicant at his last known address. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Clause 186.311 requires that the applicant is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

10. Relevantly, member of the family unit is defined to include both married and de facto partners.

11. However, in this case, the clear evidence from the applicant, and from his ex-wife, including divorce documents, on the Tribunal file, clearly establishes that the applicant and his ex-wife are no longer in a relationship, the basis on which the applicant previously claimed to be a member of his ex-wife’s family unit. On this basis I find that the applicant is not a member of his ex-wife’s family unit. Therefore, the applicant does not satisfy cl.186.311.

12. There is no evidence before me to support a conclusion that the applicant is able to meet the primary criteria for the grant of the subclass 186 visa.

13. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Sean Baker
    Member