Mehta (Migration)

[2017] AATA 463

Mehta (Migration) [2017] AATA 463 (23 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manshu Mehta

CASE NUMBER:  1605447

DIBP REFERENCE(S):  BCC2016 /1674832

MEMBER:Sue Raymond

DATE:23 March 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.311 of Schedule 2 to the Regulations

Statement made on 23 March 2017 at 10:27am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – cl 187.311 – Secondary applicant not the spouse of the primary applicant – Applicants divorced after visa grant – Member of the family unit of the family head – r 1.12(12) – Holder of Subclass 457 visa

LEGISLATION

Migration Act 1958, s 5

Migration Regulation 1994, Schedule 2 cl 187.311, r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Mehta is a secondary visa applicant in respect of an application for a Regional Employer Nomination (Permanent) (Class RN) visa. The Subclass of visa is 187. In these reasons I refer to the visa as a Subclass 187 visa. His former wife was the primary applicant for the visa.

2. The primary applicant applied to the Department of Immigration for the Subclass 187 visa on 26 June 2015. Included in the combined application was the applicant, Mr Mehta as a secondary applicant. Their infant daughter was also included as a secondary applicant.

3. The delegate refused to grant the visa because the applicant did not meet the requirements of cl.187.311. The basis of the refusal essentially related to the fact that the delegate was not satisfied that the applicant met the definition of a “spouse” within s5F of the Migration Act. That finding was made in the context of the consideration of the definition of a “member of the family unit” within the r.1.12 of the Migration Regulations. This was because the applicant’s marriage to his former wife had broken down.

4. Cl. 187.311 states as follows:

   “The applicant:

   (a)is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b)made a combined application with the primary applicant.”

5. There is no dispute about a number of matters material to this review application. I base my findings on oral evidence and documentary evidence available to me. I make the following findings:

   ·Mr Mehta is divorced from his wife with his divorce taking effect from August 2016.

   ·Mr Mehta made a combined application for a Subclass 187 visa with his former wife, who was the primary applicant.

   ·That combined application was made on 26 June 2015.

   ·On 26 June 2015 Mr Mehta was the holder of a Subclass 457 (Temporary Work (Skilled)) visa as a dependant spouse of his former wife. She was the primary visa holder of the Subclass 457 visa.

   ·Mr Mehta’s former wife, the primary applicant, has been granted a Subclass 187 visa in April 2016. The other secondary applicant, the infant child of Mr Mehta and the primary applicant, was also granted a Subclass 187 visa in April 2016.

6. Material to this review is the definition of the term “member of the family unit” of a person. Section 5(1) of the Act states that the term has the meaning given by the Regulations for the purpose of the definition. Regulation 1.12 provides definitions as to when a person is a ‘member of the family unit’ of another person called ‘the family head’.

7. There are a number of definitions within r.1.12. Some relates to specific visa types. Relevant to this application are the following two definitions:

   [1.12] (1)      For the definition of member of the family unitin subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

   (a)      a spouse or de facto partner of the family head; or

   (b)      a dependent child of the family head or of a spouse or de facto partner of the family head; or

   (c)      a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

   [(d) omitted by SR 2004, 390 with effect from 02/04/2005]

   (e)      a relative of the family head or of a spouse or de facto partner of the family head who:

   (i)      does not have a spouse or de facto partner; and

   (ii)      is usually resident in the family head's household; and

   (iii)      is dependent on the family head.

   …………………………………………………………………………………………………………

   [1.12] (12)      In addition to subregulation (1), a person is a member of the family unit of an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa if, at the time of application, the person:

   (a)      holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person was a member of the family unit of the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and

   (b)      is included in the application for the Regional Employer Nomination Permanent) (Class RN) visa.

8. It is clear from the wording in r.1.12(12) that it is in addition to that definition in subregulation (1). It is specific to an application for a Regional Employer Nomination (Permanent) (Class RN) visa. Consequently, Mr Mehta can satisfy the definition of a ‘member of the family unit’ in cl.187.311 if he meets the requirements of either of the applicable definitions.

9. I note that the wording of the definition in r.1.12(12) has altered since the visa application was lodged, but the above provisions are the applicable ones, being those in existence at the time of the lodgement of the visa application.

10. The departmental delegate only dealt with the first definition and is it is clear that Mr Mehta does not satisfy the r.1.12(1) requirement. This is because it is dependent on him satisfying the definition a “spouse” in s5F of the Act. He does not satisfy this definition.

11. However, Mr Mehta satisfies the other additional definition in r.1.12(12). By virtue of that definition, he is a ‘member of the family unit’ of an applicant for the Subclass 187 visa. This comes about in light of the fact that at the time of the Subclass 187 visa application in June 2015, Mr Mehta held a Subclass 457 visa granted on the basis that he was a member of the family unit of his former wife and she was the holder of a Subclass 457 visa and also that he was included in the application for the Regional Employer Nomination (permanent) (Class RN) visa – the Subclass 187 visa.

12. The Tribunal notes that the departmental guidelines and policy contained in PAM3, in relation to this issue, provide as follows:

    “Regulations 1.12(11) and 1.12(12) ensure that certain persons granted a 457 visa as a MoFU [member of the family unit] are still taken to be a MoFU for the purposes of:

    ·     an Employer Nomination (Permanent) (Class EN) application or

    ·     a Regional Employer Nomination (Permanent) (Class RN) visa application

    ·     even if they have ceased to be a family member of the family head.[emphasis of Tribunal]

    Regulations 1.12(11) and 1.12(12) operate in addition to the "standard" regulation 1.12(1), which requires the person to be the spouse or de facto partner of the family head, or a dependent child or dependent relative of the family head or of the family head's spouse or de facto partner.
    

    [1] Migration > 2015 > 21/05/2015 - 30/06/2015 > P. 21/05/2015 - 30/06/2015 > PAM3 - MIGRATION ACT > PAM - Act-defined terms instructions > PAM - s5G > s5G - Relationships and family members - Dependent family members > Page 2 of 3 s5G - Relationships and family members - Dependent family members paragraph 18

    To come within the scope of regulations 1.12(11) or (12), the person must be included in the Class EN or Class RN application and must hold the 457 visa at the time of applying”[1].

13. Such policy and procedures are consistent with my interpretation of the Regulations.

14. Consequently, Mr Mehta satisfies the requirements of cl.187.311.

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. Whilst other submissions were made and documents provided to the Tribunal, ultimately I do not need to canvass these other matters in light of my decision.

    DECISION

    The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.311 of Schedule 2 to the Regulations

    Sue Raymond
    Senior Member