Kudnok (Migration)

[2021] AATA 3485

Kudnok (Migration) [2021] AATA 3485 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Somchao Kudnok

CASE NUMBER:  1833288

HOME AFFAIRS REFERENCE(S):          BCC2017/3369862

MEMBER:Katie Malyon

DATE:3 September 2021

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 03 September 2021 at 10:01 am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of family unit – no confirmation from partner’s sponsor that applicant included in sponsorship – partner now holds different subclass visa – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.321, 457.324

CASE
Hasran v MAIC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicant, Thai national Ms Somochao Kudnok, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). 

2. Ms Kudnok applied for the visa on 15 September 2017.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  

4. The delegate refused to grant the visa on the basis that cl.457.324 of Schedule 2 to the Regulations was not met because, although she applied on the basis of being a member of the family unit of her partner Parinya Ngernyen, Ms Kudnok did not provide the Department with written confirmation from the approved standard business sponsor K. Alam & N.P. Alam and A. Sangdao and S. Sangdao (the Partnership) that the Partnership agreed to include Ms Kudnok as a secondary applicant and sponsor her temporary residence in Australia.  A copy of the delegate’s decision was provided to the Tribunal.

   Background

5. On 19 August 2021, the Tribunal wrote to Ms Kudnok pursuant to s.359A of the Act. In its letter, the Tribunal observed that Ms Kudnok had applied for a Subclass 457 visa on the basis of being a member of the family unit of Mr Ngernyen. Mr Ngernyen’s Subclass 457 visa was granted on 20 August 2016 but ceased 4 years later on 20 August 2020. It stated that, based on its review of Departmental records, Mr Ngernyen currently holds a Subclass 600 Visitor visa expiring on 23 December 2021.

6. The Tribunal noted that it is a requirement for the grant of a Subclass 457 visa as a secondary applicant that Ms Kudnok is a member of the family unit of a person who holds a Subclass 457 visa: cl.457.321 of the Regulations.

7. The Tribunal’s letter to Ms Kudnok was sent to her email address provided in the review application. Ms Kudnok was requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 2 September 2021. The Tribunal informed Ms Kudnok that, if it did not receive a response by 2 September 2021, or a request for an extension of time in which to provide a response by that date, she would lose any entitlement to appear before the Tribunal to give evidence and present arguments. No response has been received from Ms Kudnok, nor has she requested additional time in which to make a response.

8. As Ms Kudnok has not provided any response to the Tribunal’s s.359A letter, the provisions of s.359C of the Act apply and, pursuant to s.360(3) of the Act, she is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Clause 457.321 of Schedule 2 to the Regulations provides that:

    The applicant is 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 (emphasis added).

11. The issue in this case is whether, at the time of this decision, Ms Kudnok is a ’member of the family unit’ of a person who satisfied the primary criteria for a Subclass 457 visa and who is currently the holder of a Subclass 457 visa.

12. Review of the Department’s file confirms that Ms Kudnok applied for her Subclass 457 visa on the basis of being a dependent family member of her partner Mr Ngernyen.  Mr Ngernyen was successfully sponsored by the Partnership.  His Subclass 457 visa was approved on 20 August 2016: however, his visa ceased 4 years later on 20 August 2020.  Subsequently, Mr Ngernyen obtained a Subclass 600 Visitor visa. 

13. On 19 August 2021, the Tribunal wrote to Ms Kudnok pursuant to s.359A of the Act and noted that, based on its review of Departmental records, Mr Ngernyen’s Subclass 457 visa ceased on 20 August 2020. As such, Ms Kudnok cannot be a member of the family unit of a person who satisfied the primary criteria for grant of a Subclass 457 visa and who still holds a Subclass 457 visa. Ms Kudnok did not respond to the Tribunal’s s.359A letter.

14. Based on the evidence before it and for the reasons given above, the Tribunal finds that the requirements in cl.457.321 of Schedule 2 to the Regulations have not been met by Ms Kudnok. Because Mr Ngernyen is no longer the holder of a Subclass 457 visa it has not been necessary for the Tribunal to consider the delegate’s reasons for refusing Ms Kudnok’s Subclass 457 visa application.

15. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.  There is no evidence before the Tribunal to indicate that Ms Kudnok meets the primary requirements for grant of a Subclass 457 visa. 

16. It follows that, as Ms Kudnok does not satisfy the applicable criteria for grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

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

    Katie Malyon

    
    Member