Raman Kumar (Migration)

[2024] AATA 1623

Raman Kumar (Migration) [2024] AATA 1623 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Raman Kumar

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2209410

HOME AFFAIRS REFERENCE(S):          BCC2021/1266795

MEMBER:Warren Stooke AM

DATE:29 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2024 at 9:02am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – member of the family unit – spouse of the primary applicant – divorce – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15A; Schedule 2, cl 491.311

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 Work Regional (Provisional) (Class PS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 June 2021. The delegate refused to grant the visa on 15 June 2022 on the basis that the applicant did not satisfy the requirements of cl 491.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 491.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of Nafaz Sharma at the time of decision.

3. The applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision.

6. The applicant stated that he had provided a copy of the decision to the Tribunal with the application for review.

7. The applicant stated that he understood his visa application was refused by the Department because the decision had stated that he was not a family member, at the time.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the applicant is a member of the family unit of Nafaz Sharma, the primary visa applicant, at the time of decision and satisfies cl 491.311.

10. 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.

11. 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).

12. In this instance, the applicant is claiming to be the spouse of Nafaz Sharma, the primary applicant.

13. The applicant was granted a Bridging Visa A on 18 June 2021 with no conditions that became active on 30 June 2021 when the Student Temporary visa ends and a Bridging Visa B dated 22 April 2022 that permits multiple entries and has no conditions.

14. The applicant provided a registered marriage certificate – Victoria Australia dated 17 March 2017 of marriage to Nafaz Sharma.

15. The applicant provided evidence of a change in relationship on 2 March 2022 that is dated 25 February 2022 and states divorce advised.

16. The Tribunal informed the applicant that evidence had been provided by the applicant that he is no longer a member of the primary applicant’s family unit and the applicant responded that he had spent a lot of time together and provided for his former wife’s studies and then she moved to Darwin. He then stated: “It was her decision to separate”.

17. The Tribunal asked the applicant if he understood that at the time of decision he is required to be a member of the family unit of Nafaz Sharma and he responded: “Yes I understand that”.

18. The applicant stated that he was working full-time as a hairdresser in a salon and was paid $1,726 after tax and super.

19. The Tribunal invited the applicant to make comment and he stated that at the time of the application he was a partner of the primary applicant and that she was a good person. The applicant stated that he tried to contact the primary applicant and did not want a divorce.

20. The applicant claimed he responded to the Department’s correspondence of 6 May 2021.

21. The applicant advised the Tribunal that he did not want to make any further comment.

    Spouse

22. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined in s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple 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. The definition applies to same sex and different sex couples.

23. When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A 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.

24. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant is no longer a member of the family unit of the primary applicant. Accordingly, the applicant is not the spouse of the family head (Nafaz Sharma) and cl 491.311 is not met.

25. Member of the family unit is defined in reg 1.12 to mean: a spouse or de facto partner of the family head; or a child or step-child of the family head or of a spouse or de facto partner of the family head; or a dependent child of a child or step-child of the family head or of a spouse or de facto partner of the family head.

26. The applicant claimed that at the time of application he was a member of the primary applicant’s family unit, however, based on the change of relationship advice to the Department submitted on 2 March 2022 and registered on 25 February 2022, the Tribunal is satisfied that the applicant is not a member of the family unit of the primary applicant, at the time of decision. Accordingly, the applicant is not a member of the family unit of Nafaz Sharma and cl 491.311 is not met.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS).

    Warren Stooke AM
    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.

    …

    1.05A  Dependent

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if: 

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person: 

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  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.

    (2) …