Ramesh (Migration)

[2021] AATA 1816

Ramesh (Migration) [2021] AATA 1816 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tushar Ramesh

CASE NUMBER:  1818645

HOME AFFAIRS REFERENCE(S):          BCC2018/136

MEMBER:Wan Shum

DATE:26 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 26 April 2021 at 2:02pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – member of the family unit – dependent on the visa holder – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 96, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 189.311; rr 1.05, 1.12

CASES

Hasran v MIAC [2010] FCAFC 40

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 6 June 2018 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was included as a dependent of Mrs Joanne Isabella Ramesh, who was seeking to satisfy the primary criteria for the grant of a Subclass 189 visa in the New Zealand stream. The criteria in Subdivisions 189.21 and 189.23 of Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) are the primary criteria for this steam. The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for this visa need satisfy only the secondary criteria in Division 189.3.

3. The delegate refused to grant the visa because the delegate was not satisfied that the applicant was a member of the family unit of Mrs Ramesh because the applicant had turned 23 and did not meet the requirements of being “incapacitated for work due to the total or partial loss of the… bodily or mental functions”. The delegate found that the applicant did not satisfy cl.189.311.

4. The applicant was represented in relation to the review by a registered migration agent.

5. On 19 March 2021, the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information to support his claim to be a member of the family unit of Mrs Joanna Ramesh in writing.

6. The invitation was sent to the last address provided in connection with the review. The invitation included a statement that, if the information was not provided in writing by 6 April 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant has not provided the information or any response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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 the present case is whether the applicant is a member of the family unit of a person who met the primary criteria for, and was granted, a Subclass 189 visa and made a combined application for that visa.

10. The applicant was born on 3 January 1994. At the time of the delegate’s decision, the applicant was 23 years old. He is now 27 years old.

11. The definition of member of the family unit of another person is set out in r.1.12(2) and, relevantly to this matter, provides that a child of that person who has already turned 23 is required to be dependent (by reference to r.1.05A(1)(b)) on that person or their spouse or de factor partner. Regulation 1.05A(1) provides that a person (the first person) is dependent on another person if… 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.

12. The Tribunal requested updated information regarding the applicant’s circumstances and claim of dependency on his mother. No information has been received.

13. Therefore, the only relevant information before the Tribunal is the information submitted in 2018 which indicated that he was studying and working part-time.

14. There is no evidence that supports a finding that the applicant is reliant on another for financial support because he is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal does not accept that the applicant is incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions and finds that he is not dependent on another person. Therefore, the applicant does not meet r.1.12(2). Nor is there any evidence that he meets any of the other subparagraphs of r.1.12. The Tribunal thus finds that he is not a member of Mrs Ramesh’s family unit. There is no evidence that the applicant is the member of the family unit of a person who has been granted a Subclass 189 visa because of meeting the primary criteria.

15. Given the above findings, the applicant does not satisfy cl.189.311. Nor is there any evidence that he satisfies the primary criteria for the grant of the visa.

16. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

    Wan Shum
    Member