Lai (Migration)

[2021] AATA 5021

Lai (Migration) [2021] AATA 5021 (17 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joon Fai Lai

CASE NUMBER:  1833570

HOME AFFAIRS REFERENCE(S):          BCC2018/1026710

MEMBER:Penelope Hunter

DATE:17 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457.224 of Schedule 2 to the Regulations

Statement made on 17 December 2021 at 12:21pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of the family unit – false and misleading information in a previous application – primary refusal set aside upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 457.224, 457.325; Schedule 4, Public Interest Criterion 4020

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). The applicant applied for the visa on 4 March 2018. The delegate refused to grant the visa on 30 October 2018.

2. The delegate made the decision on the basis that evidence of failure to satisfy cl 457.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because the delegate found that public interest criterion 4020 (PIC 4020) was not met. The applicant had included in his application his spouse, Siow Fee Chu, as a dependent applicant for the Subclass 457 visa. On 29 August 2018, the delegate had earlier found that Siow Fee Chu, had caused to be given information that was false and misleading in material particular in relation to the Subclass 572 visa she held in the period 12 months before the application for the Subclass 457 visa filed on 4 March 2018. Consequently, Ms Chu was found not to satisfy PIC 4020(1) and her application for the Subclass 457 visa was refused.

3. As Ms Chu did not satisfy PIC 4020(1) the applicant was unable to satisfy PIC 4020(2) because a member of his family unit had been refused a visa on the basis of the failure to satisfy the criteria in subclause (1) of PIC 4020.

4. Ms Chu also sought a review before the Tribunal, in matter 1827208, of the decision to refuse her visa. This application was determined by the Tribunal (differently constituted) on 7 December 2021. In that decision the requirements of PIC 4020(1) were waived pursuant PIC 4020(4) and an order was made remitting the matter back to the Department for reconsideration on the basis of the direction that Ms Chu now meet the criteria for a Subclass 457 visa contained in PIC 4020 for the purposes of cl 457.325 of Schedule 2 to Regulations.

5. As a consequence of the Tribunal determination in matter 1827208, PIC 4020(2) is now satisfied by the applicant. A member of the family unit of the applicant, Ms Chu, has had the decision to refuse her visa on the basis that she did not satisfy PIC 4020(1) set aside. In light of this decision in matter 1827208, the Tribunal is satisfied that the applicant has satisfied PIC 4020 for the purposes of cl 457.224(1) of Schedule 2 to the Regulations and has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

   ·cl 457.224 of Schedule 2 to the Regulations

   Penelope Hunter
   Member