Nadav (Migration)

[2023] AATA 4084

Nadav (Migration) [2023] AATA 4084 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Oriyan Nadav

CASE NUMBER:  2310363

HOME AFFAIRS REFERENCE(S):          BCC2020/2261471

MEMBER:Karen McNamara

DATE:27 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 27 November 2023 at 1:21pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – member of the family unit – dependent on the family head – catastrophic injuries due to an accident – medical evidence – incapacitated for work – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 482.312; rr 1.05, 1.12

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 27 June 2023, to refuse to grant Miss Oriyan Nadav (the applicant) a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 September 2020 on the basis that she is a member of the family unit of a person (Mr Dror Ihiel Nadav) who, having satisfied the primary criteria is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.

3. 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 applicant is seeking the visa in the Medium-term stream.

4. The delegate in this case, refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.312 of Schedule 2 to the Regulations because there was insufficient information to demonstrate that the applicant is a dependent as defined under paragraph 1.05A(1)(b).

5. The applicant lodged an application for review with the Tribunal on 13 July 2023. The review application was accompanied by a copy of the Department primary decision record.

6. On the 21 August 2023, the Tribunal wrote to the review applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide by 4 September 2023, probative evidence to address the criteria in cl.482.312 of Schedule 2 of the Migration Regulations as claimed in her application for a Temporary Skill Shortage (class GK) Temporary Skill Shortage (Medium term) (subclass 482) visa.

7. On 3 September 2023, the applicant provided to the Tribunal a written submission accompanied by information pertaining to injuries sustained as a result of a skiing accident.   

8. On 10 October 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 31 October 2023.

9. On 24 October 2023, the applicant provided to the Tribunal the following;

   ·Letter of support from Dr Ludvik dated 14 October 2023

   ·Letter of support from Dr Kimsan Hayward dated 18 October 2023

10. On 31 October 2023, Miss Oriyan Nadav appeared before the Tribunal via Microsoft Teams video, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dror Ihiel Nadav, who is the primary applicant and applicant’s father and Mrs Pnina Nadav, the applicant’s mother.

11. The Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. The Tribunal notes that numerous evidence and submissions were lodged by the applicant to the Tribunal and Department. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

13. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the requirements of cl.482.312 of Schedule 2 of the Migration Regulations.

15. Clause 482.312 provides that:

    (1)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 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.

    (2)If the applicant is a member of the family unit of the primary applicant in the circumstances described in subregulation 1.12(5), the applicant:

    (a)is a spouse or de facto partner of the primary applicant; or

    (b)is a child or step-child of the primary applicant or of a spouse or de facto partner of the primary applicant (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    (i)has not turned 23; or

    (ii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the primary applicant or on the spouse or de facto partner of the primary applicant; or

    ( c) is a dependent child of a person who meets the conditions in paragraph (b).

16. The applicant is claiming to be a member of the family unit of Mr Dror Ihiel Nadav.

17. ‘Member of the family unit’ is defined in reg.1.12, which states in part:

    General Rule

    (2)A person is a member of the family unit of another person (the family head) if the person:

    (a)is a spouse or de facto partner of the primary applicant; or

    (b)is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    (i)       has not turned 18: or

    (ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    ( c) is a dependent child of a person who meets the conditions in paragraph (b).

18. In this case the applicant is 23 years old. The applicant contends that under paragraph1.05A(1)(b) she is dependent on the family head or on the spouse or de facto partner of the family head.

19. For the purposes of Regulation 1.12(2)(b)(iii), paragraph 1.05A(1)(b) states:

    the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

20. At the hearing the Tribunal explained to the applicant, as the applicant is not aged under 23 years, to be considered a member of the family unit, the applicant is required to demonstrate that she is wholly or substantially reliant on the family head or the spouse of the family head, because she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

21. The applicant described to the Tribunal the impact of catastrophic injuries incurred due to an accident which resulted in long term incapacity, inhibiting the applicant to work. The applicant and her parents provided credible evidence supporting the applicant’s long term physical and mental incapacitation and reliance upon her parents for financial support.

22. Post hearing the applicant provided to the Tribunal supporting evidence including the following:

    ·Ambulance Claim Form

    ·BUPA schedule of benefits paid

    ·BUPA policy details including membership information

    ·Medical specialist tax invoices

    ·Bank statements in fathers name showing payment of medical, living and study  expenses on behalf of applicant

    ·Car insurance policy details in father’s name with applicant nominated driver

    ·Letter from Neurosurgeon dated 15 October 2019

    ·Letter of support Dr Hayward (Southport Doctors) dated 18 October 2023

    ·Certification by Southport Doctors as to payment of medical expense by parents, dated 2 November 2023  

    ·Statutory Declaration signed and declared by Mr and Mrs Nadav 8 November 2023

23. Having afforded consideration to the entirety of the evidence before it, the Tribunal is satisfied on balance that the evidence before it, supports the applicant is substantially reliant on the family head due to her incapacitation for work due to partial loss of bodily and mental functions.

24. The Tribunal therefore finds that the applicant for the purpose of reg 1.12(2)(b)(iii) is a child of the family head, that has turned 23 and is dependent (as per paragraph 1.05A(1)(b)) on the family head or on the spouse of the family head.

25. Accordingly, the Tribunal is satisfied that the applicant is a member of the family unit of Mr Dror Ihiel Nadav and therefore meets the requirements of cl. 482.312.

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

    DECISION

27. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.312 of Schedule 2 to the Regulations.

    Karen McNamara
    Member