Latu (Migration)

[2023] AATA 136

Latu (Migration) [2023] AATA 136 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Tupou Matamoana Latu

Mr Mosese Langi Tuitupou Taufaao Latu

CASE NUMBER:  2102863

HOME AFFAIRS REFERENCE(S):          BCC2020/1682660

MEMBER:Alison Mercer

DATE:9 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in relation to the first named applicant.

The Tribunal affirms the decision not to grant the second named applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 9 January 2023 at 10:37am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Registered Nurse (General Practice) – no approved nomination – current professional registration – identified in an approved nomination – COVID restrictions and lockdown – employment in essential services – member of the family unit – decision under review affirmed   

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5(1), 48, 65, 140, 338, 347, 359, 411, 412
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312; rr 103, 1.12, 2.75, 4.02, 4.13, 4.14

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 on 4 March 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 June 2020. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Registered Nurse (General Practice).

3. The delegate in this case refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because she was not the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Star Medical Services Pty Ltd, had been refused on 4 March 2021. Accordingly, the delegate found that the applicant could not satisfy the criteria for a subclass 482 visa in the Medium stream and had not made any claims to meet any other stream. The delegate also refused to grant a visa to the second named applicant (the first named applicant’s husband) as he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who held a subclass 482 visa, and there was no evidence that he met the primary visa criteria in his own right.

4. The Tribunal received a review application from the applicants on 8 March 2021. It was accompanied by a copy of the delegate’s decision and proof of the first named applicant’s current registration as a Nurse with the Australian Health Practitioners’ Registration Authority.

5. On 12 July 2021, the Tribunal wrote to the applicants to advise them that it had formed a preliminary view that the application for review of decision for the first named applicant was invalid because, at the time of the delegate’s decision to refuse to grant the visa, she was not identified in an approved nomination that had not ceased, and nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act, or of a decision not to approve the nomination under s.140GB of the Act. The Tribunal advised, however, that this was ultimately a matter which must be determined by a Member, and it invited them to provide any comments they wished to by 26 July 2021.

6. On 26 July 2021, the Tribunal received the following response by email:

   …

   To whom it may concern,

   We first arrived in Australia on a visiting visa late March of 2020 prior to the first lot of Covid restrictions and lockdown that occured in NSW.

   My husband and I then sort out migration advice regarding our options due to the current travel restrictions and us returning. We were advised that my experience is recognised here in Australia and we would need to find an employer willing to sponsor for an Temporary Skilled Shortage (TSS) 482 visa. We then began the arduous process of seeking an employer offering to sponsor. This was my first encounter with Dr Gergis offering me employment and a promise of sponsorship with Midway Medical Centre as supposedly they had sponsored employees prior and were willing to offer the same gesture.

   I was offered employment in May and then in June 2020 Dr Gergis directed his accountant Mr Hammond to begin the process of putting in our application for a TSS 482 visa for myself and my husband with Midway Family Medical Centre as our sponsor.

   During the application phase we were advised by the sponsor that we needed to pay over $5000 for the sponsorship and a further $5000 more for the TSS 482 visa fee.

   I heard back from the department on 1st February 2021(letter as attached), in part of the letter it states 'for more information about why your prospective employer does not have an approved nomination for me, contact them directly.' I then consulted them and their response was that Mr Hammond will put in what is required around them becoming a valid nominee in support of our application. During this time of waiting for a response from Mr Hammond we recieved the second letter of the visa refusal on the 4th March 2021 and the option of applying for Administrative Appeals Tribunal (AAT). In now reviewing the first letter we recieved on 1st February we have realised how we've misread our options, relying on Mr Hammond for guidance. In our confusion and overwhelming situation it resulted in us taking the next step in seeking some sort of resolution from AAT regarding our application. Again we have just realised that in that letter on the 1st February it states that 'Star Medical Services Ltd Pty' does NOT HAVE AN APPROVED NOMINATION for me at this, time. We just have realised that this meant that there was no other option for our application for a TSS visa to be approved. We also have just realised that we had the option of applying for a Temporary Activity subclass 408 visa which would've been more fitting for our current circumstances.

   In light of all this information and reflecting back, we have noticed how overwhelming settling into a new country and ensuring to adapt to new systems can be and this particular incident is a great reflection of this.

   I have now spent over a year with Midway Family Medical Centre responding and contributing to our current Covid 19 outbreak. I am the only nurse there at the medical centre with a practice that recieves around 300 patients a day. I envisige that my contribution is of great impact to our health system in NSW during this current crisis. I have over 6 and a half years of practice knowlegde and experience as a registered nurse which stems from NZ to Tonga and now Australia. My husband and I are young and have a lot to offer during this time and eventually into the future if given an opportunity to contribute.

   We are pleading with you if it is at all possible as mentioned above, could we have another opportunity to withdraw our TSS 482 visa application in writing and both reapply for Temporary Activity subclass 408 visa (as recommended) which would be more appropriate for our current situation.

   We are both grateful for your time and are hopeful for a positive outcome.

   …

7. On 21 July 2022, the Tribunal wrote to the second named applicant to invite him, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to his case. The Tribunal advised that in the Department’s decision of 4 March 2021 to refuse them subclass 482 visas, the first named applicant was the primary visa applicant and the delegate found that she did not satisfy the primary visa criteria in cl.482.212 (which required her to have an approved nomination by a Standard Business Sponsor). The Tribunal noted that the second named applicant was also refused a subclass 482 visa on the basis that he did not satisfy cl.482.312, which required that he was a member of the family unit of a person who held a subclass 482 or a subclass 457 visa granted on the basis that they satisfied the primary visa criteria. The Tribunal advised that its records indicated that, subsequently, the applicants applied to the Tribunal for review of the decision to refuse them subclass 482 visas on 8 March 2021, and that on 12 July 2021, the Tribunal wrote to them to advise that it did not believe that it had jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa, as at the time that the delegate made the refusal decision on 4 March 2021, she was not the subject of an approved nomination, nor was there a pending review application in relation to the nomination refusal decision or of a decision to refuse to approve her employer as a Standard Business Sponsor (as required by s.338(2)(d) of the Act, which sets out when a subclass 482 visa refusal decision is reviewable by the Tribunal). The applicants were invited to comment on this information by 26 July 2021 and did so on 25 July 2021.

8. The Tribunal further noted that they indicated that they had been misadvised to apply for a subclass 482 visa by their former migration agent, and should have in fact applied for a subclass 408 visa, and that they asked if it was possible for them to withdraw their subclass 482 visa application and reapply for a subclass 408 visa application. The Tribunal advised that it was unable to provide migration advice to applicants, but noted that once a primary decision was made by the Department on a visa application, it was no longer possible to withdraw the visa application from the Department. It further advised that while they might withdraw the current review application from the Tribunal’s consideration, they needed to be aware that there may be implications for their visa status and their ability to make a further visa application while in Australia if they did so. The Tribunal further indicated that it was unable to consider their eligibility for any other visa other than the subclass 482 visas they applied for in June 2020, and it advised them to obtain migration advice about this issue.

9. The Tribunal advised the second named applicant that the particulars of the information held by it were the fact that a check of the Department’s Integrated Client Services Environment (ICSE) records on 8 July 2022 indicated that the first named applicant did not hold a subclass 482 or a subclass 457 visa. It stated that this information was relevant to the review because, subject to his comments or response, it indicated that the second named applicant was not a member of the family unit of a person who held a subclass 482 visa or a subclass 457 visa that was granted on the basis of them meeting the primary visa criteria, as required by cl.482.312, and that this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that he met cl.485.312 at the time of decision.

10. The Tribunal requested that comments or a response be provided by 4 August 2022. On 3 August 2022, the Tribunal received the following statement from the first named applicant:

    …

    As the primary visa applicant, I wanted to firstly thank you for the opportunity to respond regarding my application that was refused on the 4th March 2021 for a Class GK subclass 482 (Temporary Skills Shortage) visa. Visa criteria in cl.482.212 (Required to have an approved nomination by a Standard Business Sponsor). I graduated as a Registered Nurse (RN) from Whitireia Polytechnic in Wellington, New Zealand and was employed for over a year before returning to Tonga as I was young and really homesick. I returned back to Tonga where my parents and siblings were and had to wait for an opening position of employment as there is only one hospital in Tonga and no small clinics that could afford to hire me as an RN. A position opened up for a Nurse in Charge in the Outpatient and Emergency Department and I then was employed in this position up until I travelled to Australia for a break. I arrived on a visiting visa back in March 2020 to visit my husband’s immediate family when the first outbreak of Covid restrictions and lockdowns occurred. At this time the option would be to extend our visa’s until the outbreak subsided, however due to all the uncertainties at the time I wanted to be able to help out through finding temporary employment. With the support of my husband’s immediate family, I was able to access legal immigration advice to determine which visa would be most appropriate for the period of the extension of our stay. As a result of the advice I received I had less than a month to find an employer willing to offer a sponsorship before my visiting visa at the time expired as there weren’t many options that I had where I could include my husband in my application. I spent that whole period applying specifically for positions that offered sponsorships until I finally found Dr Gregis from the Star Medical Services Pty Ltd who interviewed me in person and offered me the position as an RN and to sponsor me for a Temporary Skilled Shortage (TSS) 482 visa. Dr Gregis advised that he had offered these particular sponsorships in the past to some of his doctors from overseas and his accountant was experienced in dealing with it all on his behalf. I then started my employment with a branch of Star Medical Services called Midway Medical Centre (Ryde) in May and then put in our application for a TSS 482 visa on 4thJune 2020. Dr Gregis’ accountant Mr Hammond began the application process and advised that WE needed to pay for the application of the sponsorship for my self and my husband as the additional applicant. With the support of our family we were able to muster up the funds to start the process of this application. We had to pay $5359.83 for the visa 482 and the remaining $5197.72 was for the sponsor (Star Medical Services) as the main nominator (Attachment 1- Receipts of the banking details belonging to our family members) as we still did not have rights to be employed in Australia at that time. I then received a letter from the department on 1st February 2021 (Attachment 2 – Letter informing me that Star Medical Services is not an approved nominee) advising that the work place were not an approved sponsor. At this stage because they claim to have sponsored employees in the past I followed suit in applying for an appeal through Administrative Appeals Team (AAT) (Attachment 3 – Application for Review) not really understanding its purpose but trusting the instructions from Mr Hammond. I was also advised by them that I needed to pay for the review AAT application for them and myself which totalled $1826 each, however I advised them that I did not have enough funds at the time to bear the cost of their application too. They advised that they would pay for it and I would need to repay them back. They ended up getting a refund as they put in the application late and it resulted in an invalid application (Attachment 4 – Receipt of payment and refund for Star Medical Services) and I am still sorting through my review (Attachment 5 – Receipt of payment for my request to review). After our visa was NOT approved Dr Gregis called in a friend of his who is a Principal Solicitor for Gateway Law and Migration Australia as a favour that advised me the following that I have attached (Attachment 6 & 6a– Advice email).The huge costs to even afford this friend’s advise is beyond what I could afford or manage. As far as I understand I was advised that as a result of our refused application we now have s48 BAR as a result of our initial application being a sc482. I believe in lay man terms that this s48 BAR doesn’t allow us to apply for any other visa’s apart from the one we have recently applied for which is an EOI for the (Skills Nominated visa) subclass 190. (Attachment 7 – Copy of our current visa application). We have sort out legal immigration advised and they have applied for this visa on our behalf so we can remain valid in the country. I am pleading the possibility of returning back to the first letter that we received on the 1st February allowing us the opportunity to: · Be invited to provide a comment on our intentions regarding our visa application and to also have the opportunity to withdraw our application in writing. I am hoping that this will in turn reverse the S48 BAR and give us more options in applying for a valid visa and funds to continue this journey in order to remain in Australia. I believe that my skills, experience and knowledge are sort after during this current health crisis in Australia and I have proven that during this time I have provided a plausible service in this industry. It has now been over 2 years that I have spent servicing 300 patients a day during the pandemic through Midway Family Medical Centre and continuing with further boosters regularly. I am certain that I will be able to further stretch my reach to age care facilities and hospitals if I’m only given an opportunity as my current visa restrictions does not allow me to currently. In light of all this information and closely reflecting back, this whole visa application process has been so overwhelming and arduous for me and my husband. If we did not have our immediate family to support and rely on during this time it would be really difficult to manage all that has occurred. I know longer can return to my position in Tonga as I’ve had to resign as a result of the pandemic and settling into this country. To return will mean that I will need to find another position that may take a long time considering there is only one hospital in the whole of Tonga which will be a loss of opportunity for me and my young family. Due to all the health risks and issues regarding the pandemic I believe that I am of more use here in Australia then I am to return. I’ve given up everything regarding my future in order to remain here in the hope our visa application will allow us to both call Australia home. We are both so young and have so much to offer especially in a well sort after industry that is currently supporting Australians. Therefore, as a result of the many things that we have come across within my workplace and visa issues I was not able to meet the Visa criteria in cl.482.212 (Required to have an approved nomination by a Standard Business Sponsor) due to the various events that we have had to overcome.

    …

11. Also provided on the same date was the following statement by the second named applicant:

    …

    My name is Mosese Latu born on 18.01.1994 and I believe this section is meant for me because the primary applicant is my wife for the Temporary Skills Shortage class GK subclass 482. I don’t have the required family member that holds a subclass 482 visa. I first arrived in Australia to visit my brother whom I have not seen in over a couple of years as he had since relocated to settle in Australia with his wife. We lost our father to a heart attack suddenly when I was fairly young and culturally my older brother is usually the one that takes his place. There is only the two of us (males) in our family alongside two sisters that were already married at the time. When my brother relocated I was left to remain back in Tonga. I had visited him a number of times since then and had always returned in the expected time frame I’ve been required. I have travelled abroad for football and have visited many countries yet have always returned home to our Mother who is still widowed. I am a concreter by trade and I have been employed in the industry since being allowed to in Australia to support us during this time. Whilst waiting for our visa I have been supporting my wife through the process of our visa applications. The pressure has only been alleviated through having a strong family network such as my brother to support us through it. Losing our father and my brother relocating has been really difficult for me however being here with him has been really good for me during this time. As my wife already mentioned it has been a difficult process however we will ensure to abide and work through it to ensure that we full fill what our required visa requirements are to hopefully ensure a positive outcome to be closer to my brother. I understand that this section is a result of our visa application for a Class GK subclass 482 (Temporary Shortage) visa being refused. I do not meet the requirements because of the visa refusal.

    …

1. The applicants also supplied copies of the documents referred to in the first named applicant’s statement.

2. The applicants appeared before the Tribunal on 27 September 2022 to give evidence and present arguments by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.

3. The first named applicant confirmed the contents of her written statement, and told the Tribunal that she would not have taken the job if her employer had not agreed to nominate her for a subclass 482 visa, and he had assured her that the practice had done this for several other medical staff before. The preparation of the nomination application was delegated to the practice’s accountant, who indicated just before it was lodged with the Department that the applicants were expected to pay the nomination lodgement fees, as well as their visa application fees. This was unexpected and they had to borrow money from relatives to meet the nomination costs. After lodging their visa application in January 2021, they received the natural justice letter from the Department advising them that the nomination had been refused. The first named applicant said that this came as a shock and so she contacted both her employer and the accountant, but neither would provide much information to her about what had happened or the reason why the nomination had been refused. They implied that it was just a matter of providing additional documents and told her that they would lodge a review application with the Tribunal. The applicants lodged their review application about the visa refusals with the understanding that the employer would also appeal the nomination refusals.

4. The first named applicant told the Tribunal that she was still working for her employer, as she held a bridging visa with work rights, but she indicated that it was an awkward situation.

5. The Tribunal discussed with the applicants the issues raised in its letters to them about the fact that it did not have jurisdiction to review the decision to refuse the first named applicant, and therefore would have to affirm the decision to refuse the second named applicant a subclass 482 visa as he could not meet the criteria if she was not granted a subclass 482 visa.

6. The applicants indicated that they understood the legal position. The first named applicant told the Tribunal that she had submitted an Expression of Interest (EoI) to the New South Wales government for a subclass 190 visa, but had to wait for more invitation places to become available. She had been advised that this was likely to happen in the next few months. In the meantime, she continued working as a nurse, as she had throughout the period of the COVID19 pandemic, while her husband worked casually as a concreter. The applicants told the Tribunal that leaving Australia to apply for another visa from overseas would be disruptive and expensive for them.

7. At the end of the hearing, the Tribunal indicated that due to its current workload, it expected to make a decision in 4 to 8 weeks. It undertook to clarify whether the first named applicant could have the review application fee refunded if her review application was found to be invalid.

8. On 5 October 2022, the Tribunal sent an email to the applicants advising that there would be no entitlement to a fee refund in their circumstances, as under r. 4.13(3) of the Regulations, if two review applications of Part 5-reviewable decisions were combined, an application fee was only payable in respect of one of them. The Tribunal advised that in this case, a combined review application was made and one application fee paid. The Tribunal noted that it had found no jurisdiction in respect of the primary applicant’s application (that is, Mrs Latu’s application); however, it had found that it did have jurisdiction in respect of the secondary applicant’s application (that is, Mr Latu’s application), and a requirement for a valid review application is that it is accompanied by the application fee (s 347(1)(c) of the Act). The Tribunal advised that the only circumstances in which the review application fee could be refunded were set out in r. 4.14 and that did not cover the circumstance where there is no jurisdiction to review one decision in a combined application for review, but the Tribunal has jurisdiction to conduct the review in respect of the decision to refuse the other applicant the visa. Items 2 and 3 of the table in reg 4.14(1) provided for a refund if the applicant was not entitled to apply for review by the Tribunal, or the decision is not subject to review, respectively. However, this would not apply in respect of the secondary applicant as the Tribunal has found it has jurisdiction to review that decision in relation to Mr Latu. Regulation 4.14(2) provides for a fee refund if a review application is withdrawn in limited circumstances such as following the death of the visa applicant; however, if the secondary applicant were to withdraw his review application without these additional specified circumstances, no refund would be payable.

9. On 11 October 2022, the Tribunal received the following response from the applicants:

   …

   Thank you for your email. There may have been some misunderstanding during the hearing. The refund issues I was referring to, was intended for our visa fee application that were refused by the Department of Home Affairs. Apologies if I wasn’t clear. If you can kindly look into that I will appreciate it very much.

   …

10. For the following reasons, the Tribunal has decided that it does not have jurisdiction in relation to the first named applicant, and that the decision to refuse the second named applicant a subclass 482 visa must be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

11. The issues in this case are:

    ·whether the Tribunal has jurisdiction in relation to the first named applicant; and

    ·whether the second named applicant meets the criteria for the grant of a subclass 482 visa

    First named applicant

12. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

13. For onshore visa applications, such as the current one, a decision to refuse to grant a subclass 482 visa is reviewable in certain circumstances as set out in s 338(2). Paragraphs (a) to (c) of s 338(2) apply in all cases, requiring that the visa could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared (which would always be the case for a valid onshore subclass 482 visa application). The Tribunal is satisfied that these conditions are met in this case.

14. However, section 338(2)(d) imposes an additional requirement for certain prescribed temporary visas to be reviewable (including subclass 482 visas).[1] There are four alternative requirements; however, the fourth is only applicable if it is not a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the Regulations.

    [1] A Subclass 482 visa is prescribed for s 338(2)(d): reg 4.02(1A).

15. In each instance, the requirement must be met at the time the decision to refuse to grant the visa is made. The alternatives are:

    (i)the non-citizen is identified in an approved nomination that has not ceased under the regulations;[2] or

    (ii)a review of a decision under s 140E not to approve the sponsor of the non-citizen is pending; or

    (iii)a review of a decision under s 140GB not to approve the nomination of the non-citizen is pending; or

    (iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased, the non-citizen is sponsored by an approved sponsor.[3]

    [2] See reg 2.75 for cessation of nominations associated with Subclass 482 visas.

    [3] s 338(2)(d) as repealed and substituted by No 90, 2018, with effect for decisions made on or after 13 December 2018.

16. All primary subclass 482 visa applicants must be identified in an approved nomination.[4] Accordingly one of the first three alternative requirements (ss 338(2)(d)(i)–(iii)) must be met, at the time the decision to refuse to grant the visa is made. This means that, at that point in time, a nomination identifying the primary visa applicant must be approved, or a decision not to approve their sponsor be pending review before the Tribunal, or a decision to refuse the nomination be pending review before the Tribunal, for the decision to be a Part 5-reviewable decision.

    [4] See cl 482.212(1), which applies to all primary applicants regardless of the stream applied for.

17. As noted above, on 12 July 2021, the Tribunal wrote to the applicants to advise them that it had taken the preliminary view that it did not have jurisdiction in respect of the first named applicant, as she was not the subject of an approved nomination on 4 March 2021 (the date of the primary decision to refuse the subclass 482 visas), nor was there a pending review application of a decision to refuse her employer’s nomination of her, or of a decision to refuse to approve that employer as a standard business sponsor, on 4 March 2021.

18. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa as she does not meet s.338(2)(d)(i), (ii) or (iii), and (iv) is not applicable to her. This is because there was no approved nomination of her on 4 March 2021 (as the Department had refused to approve her employer’s nomination of her prior to that date, as set out in the primary decision record provided to the Tribunal by the applicants with the review application). Nor was there any review pending with the Tribunal on 4 March 2021 of the decision to refuse to approve the nomination, nor of any decision to refuse to approve the first named applicant’s employer as a standard business sponsor.

19. As the delegate’s decision in respect of the first named applicant is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in relation to her.

    Second named applicant

20. 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.

21. Regulation 1.12(2) 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 child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a person in the second dot point.

22. It is not disputed that the second named applicant is the husband of the first named applicant, who is the primary visa applicant. This information was contained in the primary visa application and documentary evidence was provided to the Department in support of the family relationship, which was not disputed by the delegate.

23. However, the second named applicant is unable to meet cl.482.312(1), which must be met at the time of decision (in this case, the time of the Tribunal’s decision in 2022). This is because he is not the husband, and thus is not a member of the family unit, of a person who holds a subclass 482 visa, as the first named applicant was refused a subclass 482 visa and the Tribunal has found above that it has no jurisdiction to review that decision. There is no evidence before the Tribunal that the first named applicant holds a subclass 482 visa.

24. It follows that the second named applicant does not satisfy the criteria for the grant of a subclass 482 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed in relation to him.

    Other matters

25. The Tribunal notes that the applicants have asked the Tribunal to clarify whether they are entitled to a refund of their visa application fee from the Department. The Department’s website indicates that a refund is generally not provided if an application is withdrawn or refused: Refunds (homeaffairs.gov.au)

26. The Tribunal further notes that the fact that the Tribunal has found that it does not have jurisdiction in respect of the review application made by the first named applicant does not appear to be a ground on which the Department would refund the original visa application fee.

    decision

27. The Tribunal does not have jurisdiction in relation to the first named applicant.

28. The Tribunal affirms the decision not to grant the second named applicant a Temporary Skill Shortage (Class GK) visa.

    Alison Mercer
    Member