Sandhu (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The applicant sought to be recognised as a member of the family unit of Navmehak Khaira, the primary applicant or "family head". The core dispute revolved around whether the applicant met the criteria for being a member of the family unit, specifically concerning the requirement for Functional English.

The Tribunal was required to determine if the applicant satisfied clause 491.311 of the Migration Regulations 1994, which necessitates being a member of the family unit of the family head. This involved assessing the definition of "member of the family unit" under regulation 1.12 and the specific requirement under Item 1(b) of Schedule 1, clause 1241, for Functional English. The applicant claimed to be the spouse of the family head, and the Tribunal needed to consider the evidence presented regarding this relationship and the applicant's English language proficiency.

The Tribunal reasoned that while the applicant had provided a marriage certificate and other documents to evidence a genuine and continuing spousal relationship, the initial delegate had refused the visa on the grounds that no evidence of Functional English had been provided. However, the Tribunal noted that after the delegate's decision, the applicant's representative submitted a Pearson Test of English Academic (PTE Academic) result dated 28 June 2022. This test indicated an overall band score of 39, which was not available to the delegate at the time of the original decision. Based on this new evidence, the Tribunal concluded that the applicant met the criteria for being a member of the family unit under clause 491.311.

Consequently, the Tribunal remitted the application for reconsideration. The direction given was that the applicant meets the criteria specified in clause 491.311 for a subclass 491 visa.