Sandhu (Migration)

[2024] AATA 401

Sandhu (Migration) [2024] AATA 401 (29 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh Sandhu

REPRESENTATIVE:  Mr Rajdeep Singh Chahal (MARN: 1802753)

CASE NUMBER:  2206530

HOME AFFAIRS REFERENCE(S):          BCC2021/647595

MEMBER:Peter Katsambanis

DATE:29 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 491 - Skilled Work Regional (Provisional) visa:

·Clause 491.311.

Statement made on 29 February 2024 at 9:40am

CATCHWORDS

MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – member of the family unit – genuine and continuing relationship – Functional English – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 491.311; rr 1.03, 1.05, 1.12, 1.15

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 12 November 2021. The delegate refused to grant the visa on 3 May 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 the primary visa applicant, being Navmehak Khaira, at the time of decision.

3. The applicant’s representative requested that the Tribunal make a decision on the papers in this matter without providing the applicant with an opportunity to appear before the Tribunal to give evidence and present arguments. The applicant was represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the applicant is a member of the family unit of Navmehak Khaira and therefore satisfies cl 491.311.

6. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by 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 addition, in the applicant’s case, in order to meet the requirements of cl 491.311 he must comply with the relevant requirements specified in Item 1(b) of cl 1241 of Schedule 1 to the Regulations, which requires an assessment of whether the applicant has Functional English.

9. In this instance, the applicant is claiming to be the spouse of Navmehak Khaira, who is the ‘family head’ for the purposes of this application. Over time, the applicant provided the Department and the Tribunal with a copy of a marriage certificate showing that the couple married in Australia on 27 October 2021 and various other documents to evidence the on-going nature of the relationship.

10. On 21 February 2022, the Department sent a letter to the applicant requesting, amongst other things, that the applicant provide evidence of Functional English to enable a determination pursuant to Item 1(b) of cl 1241 of Schedule 1 for the purposes of cl 491.311.

11. In a response dated 10 April 2022, the applicant provided an Indian police clearance to attest to his character and several photographs to attest to his relationship with the spouse. However, the delegate’s decision record indicated that no evidence of Functional English was provided. Accordingly, the delegate found that the applicant did not meet the requirements of Item 1(b) of cl 1241 of Schedule 1 for the purposes of cl 491.311 on the basis that there was no evidence provided to enable an assessment of whether the applicant had Functional English.

12. The delegate refused to grant a visa to the applicant on 3 May 2022.

13. On 5 July 2022, the applicant’s representative provided the Tribunal with a copy of a Pearson Test of English Academic (PTE Academic) for the applicant. This test, dated 28 June 2022 and valid for two years after this date, indicated that the applicant had an overall band score of 39. This document was not available to the Department when the delegate made a decision in this matter.

14. For the purposes of this visa application, IMMI 15/004 allows a range of tests or assessments from different providers to be considered for the purposes of assessing Functional English. In relation to a PTE Academic test that the applicant has provided, an overall band score of at least 30 is required on a test conducted not more than 12 months before the application is lodged or at the time of processing the relevant application.

15. Accordingly, based on the applicant’s PTE Academic overall band score of 39 on a test conducted after the visa application was made and before this review has been determined, the Tribunal finds that the applicant does have Functional English to enable an assessment under Item 1(b) of cl 1241 of Schedule 1 for the purposes of cl 491.311.

16. 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.

17. 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.

18. In this case, there is no issue in relation to whether the applicant is the spouse of the ‘family head’. The couple married in Australia in 2021 and continue to live together as a couple. There is no evidence before the Tribunal to question the genuine and continuing nature of the relationship or the couple’s commitment to a shared life together to the exclusion of all others. Therefore, the Tribunal accepts that the applicant is the spouse of the ‘family head’.

19. Department records accessed by the Tribunal indicate that the ‘family head’ was granted a subclass 491 visa on 12 August 2021 and that this visa remains in effect.

20. Accordingly, based on the evidence before it, the Tribunal finds that the applicant is the spouse of the family head and cl 491.311 is met.

    DECISION

21. The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 491 - Skilled Work Regional (Provisional) visa:

    ·cl 491.311.

    Peter Katsambanis
    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) …