Piyasenage (Migration)

[2022] AATA 1413

Piyasenage (Migration) [2022] AATA 1413 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manusha Ekmal Wewagedara Piyasenage

CASE NUMBER:  2118522

HOME AFFAIRS REFERENCE(S):          BCC2021/393292

MEMBER:Michelle East

DATE:12 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 12 May 2022 at 11:53am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – secondary applicant member of family unit of primary applicant – de facto partner – relationship certificate and other evidence provided to department – primary applicant’s visa expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CB, 65, 359A
Migration Regulations 1994 (Cth), rr 1.09A, 1.12(2), Schedule 2, cl 485.311(b)

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 Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 March 2021. The delegate refused to grant the visa on 17 November 2021 on the basis that the applicant did not satisfy the requirements of cl 485.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 485.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant.

3. The applicant appeared before the Tribunal by MS Teams Audio on 12 May 2022 to give evidence and present arguments.  The hearing was held during the Covid-19 pandemic.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant and satisfies cl 485.311.

6. 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.

7. 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 dependent child of the family head or of their spouse or de facto partner (grandchild).

8. In this instance, the applicant is claiming to be the de facto partner of the primary visa applicant.

9. A person is a ‘de facto partner’ if they are in a ‘de facto relationship’ with the family head. ‘De facto partner’ is defined by s 5CB the Act, which provides that: the couple must not be married to each other or related by family; the couple must have a mutual commitment to a shared life to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.

10. When considering whether the above requirements in s 5CB are satisfied and the applicant is the de facto partner of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

11. This application was lodged on 14 March 2021 for a Temporary Graduate (class VC) Temporary Graduate (Post Study Work Subsequent Entrant) subclass 485 visa.  The applicant applied on the basis that he was a member of the family unit of a person who holds a SC 485 visa.  The primary visa applicant held a SC 485 visa which was granted on 16 October 2019 and expired on 16 October 2021.

12. On 2 June 2021 the Department wrote to the applicant requesting further information, including, but not limited to, evidence relating to his relationship with the primary visa applicant.

13. In the decision record the delegate stated that on 7 July 2021 the applicant had not provided the requested information. 

14. A review of the Departmental file indicates that a Relationship Certificate dated 15 July 2021 was provided on 27 August 2021 to the Department together with other evidence relating to aspects of the relationship.

15. The primary visa applicant’s visa expired on 16 October 2021 and on 17 November 2021 the delegate made a decision to refuse this application because of the absence of a primary visa holder.

16. In his response to a s 359A letter sent by the Tribunal on 21 February 2022, the applicant responded as follows:

    I applied to join my partner’s visa on 14/03/2021 and I was granted a bridging visa A.  The department took long to process my visa and as my partner’s visa ended on 16/10/2021 my application got rejected.  If I was granted the visa by now I would have arranged another visa.  The situation is unfair on my side.  I would humbly request you to take my situation under consideration. (sic)

17. The Tribunal agrees that the applicant did provide evidence pertaining to his relationship status to the Department prior to the delegate making their decision. Unfortunately, however, as the delegate’s decision was made after the primary visa applicant’s visa had expired, the applicant was unable to fulfil the criteria for the grant of his visa, namely, that he be a member of the family unit of a person who, having met the primary criteria, is the holder of a Subclass 485 visa: cl.485.311.

18. The Tribunal does not have any discretion to make a different decision in these circumstances.

19. The Tribunal finds that the applicant is not a member of the family unit of a person who holds a Skilled (Provisional)(Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa.

20. Accordingly, the applicant does not meet the requirements of lc.485.311(b) of the Regulations.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC).

    Michelle East
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

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

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

    (b)     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 factor 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 (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    485.311 

    The applicant:

    (a)  is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person; or

    (b)  is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa. 

    …