Singh (Migration)

[2018] AATA 5607

Singh (Migration) [2018] AATA 5607 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanjit Singh

CASE NUMBER:  1826943

DIBP REFERENCE(S):  BCC2014/2742929

MEMBER:Hugh Sanderson

DATE:23 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 23 November 2018 at 10:46am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of family unit – application of the primary visa applicant was refused – divorced with primary visa applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 October 2014.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant applied for the visa on the basis that he was a member of the family unit of a person who met the primary criteria.

4. The delegate refused to grant the visa on 24 September 2015 on the basis that cl.457.321 was not met because the Department had refused the application of the primary applicant.

   Background

5. The applicant is a citizen of India. At the time of the visa application, the applicant claimed to be the husband of Dawinder Kaur who was the primary visa applicant for the grant of the subclass 457 visa. The applicant has not made any claims that he meets the primary criteria for the grant of the visa.

6. The Department issued a decision finding the primary applicant did not meet the criteria in cl.457.223 for the grant of the visa and refused her application. As the primary applicant was found not to satisfy the prescribed criteria for the grant of the visa the delegate found that the secondary applicant was not a member of the family unit of a person who satisfies the primary criteria and therefore did not meet the criteria in cl.457.321 and refused the application.

7. The decision to refuse the primary visa applicant the grant of the visa was subject to a review before the Tribunal. The Tribunal affirmed the Department’s decision. An appeal to the Federal Circuit Court was remitted by consent on the basis that the Tribunal had failed to notify the primary visa applicant of a certificate under s.376 of the Act relating to certain documents of the Department’s file. Separate hearings were held in respect of the application of the primary visa applicant and the applicant in these proceedings as the Tribunal was advised that the parties had separated and were now divorced.

8. The applicant appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. The applicant was advised that if he required more time to comment on or respond to the information he could request an adjournment.

10. The Tribunal referred to the certificate under s.376 of the Act on the Departments filed. The content of the information subject to the certificate was discussed with the applicant. The Tribunal found the certificate was not valid, noting the following:

    ·Although it was claimed the release of the material would be contrary to public interest, there was no information as to how it would be contrary to public interest;

    ·The primary visa applicant had been put on notice by the Department when the Department wrote to her on 20 July 2015 with the information obtained from the site inspection of the address of her sponsor and invited her to comment on or respond to the information;

    ·The decision of the delegate, a copy of which was provided to the Tribunal, referred to the site visit of the Departmental officers and their findings in respect of that visit which indicated that the sponsor was not operating a business from that premises;

    ·The decision of the delegate set out the response the applicant provided when this information was initially sent to her with an invitation to comment; and

    ·There was no information in the documents referred to in the certificate which were relevant to the application that the applicant had not already been advised of and had an opportunity to comment on.

11. The Tribunal noted further that the information which was subject to the certificate was not relevant to the issue before the Tribunal in respect of the current application.

12. The applicant said that he married the primary visa applicant on 18 December 2013. He said that he stopped living with her about a year and a half after that. He said that he moved to Melbourne and obtained work in Melbourne. He said that the primary visa applicant applied for a divorce which was granted in March or April 2016. He said that he did not know about the divorce until about 2017.

13. The Tribunal asked the applicant when he contacted the Department to advise them of his change of circumstances. He said that he did not do this until found out there was an appeal to the Federal Circuit Court. He said that he did not contact the Department when he moved to Melbourne because he did not know he had to. He said that because he was from India and it was his wife’s application he thought that she would handle everything and did not see any reason to contact the Department.

14. The Tribunal referred to the process under s.359AA of the Act set out above. The Tribunal referred to the fact that the primary visa applicant’s review before the Tribunal had been finalised on 22 November 2018 with a decision affirming the Department’s refusal of the visa. This was relevant as the only claim made by the applicant was that he was a member of the family unit of the person who met the primary criteria and as the Department’s refusal of the visa for the primary visa applicant had now been affirmed he did not meet this requirement for the grant of the visa.

15. The applicant said that the last time the matter went before the Tribunal he did not appear because “the girl” was there. He said that he was trained as a pharmacist and had been trying to find an employer to sponsor him for the visa but he could not find one. He said that he had been told he could not lodge a visa onshore but was still trying to find somebody to sponsor him but could not do so.

16. The applicant acknowledged that as his former wife as the primary visa applicant did not meet the criteria for the grant of the visa he also did not meet the criteria for the grant of the visa.

17. The Tribunal referred to the fact that as he was claiming to be a member of the family unit of a person who met primary criteria, that being his former wife, and as he had now divorced his former wife and had not been living with her since 2015 he was no longer a member of her family unit. This would mean that even if his former wife met the criteria for the grant of the visa as he was not a member of her family unit and did not meet the criteria in cl.457.321. The applicant acknowledged that he was no longer a member of the family unit of the primary visa applicant and this was another reason why he did not meet the criteria for the grant of the visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant is a member of the family unit of the a person, the primary visa applicant, who satisfies the primary criteria for the grant of the visa.

20. The applicant has made no claim that he meets the primary criteria for the grant of the visa. He stated that he had tried to find a sponsor for the grant of a visa, but had been unable to do so. There is no information before the Tribunal that the applicant meets the primary criteria for the grant of the visa.

21. The application of the primary visa applicant was refused by the Department and that decision has now been affirmed by the Tribunal on review. On that basis, the applicant does not meet the criteria of being a member of the family unit of a person who satisfies the primary criteria. Accordingly, he does not meet the criteria in cl.457.321.

22. The evidence of the applicant is that his relationship with the primary visa applicant ended in early 2015 when he moved to Melbourne and has not lived with the primary visa applicant since then. He was divorced in 2016. He has no continuing contact with the primary visa applicant.

23. As the applicant is not the husband of the primary visa applicant and is not a member of her household and he is not a member of the family unit of the primary visa applicant. For this reason also the applicant does not meet the criteria in cl.457.321.

24. For the above reasons, the Tribunal finds the applicant does not meet the requirements for the grant of a subclass 457 Temporary Business Entry visa. There is no information before the Tribunal that the applicant meets any other criteria for the grant of any other visa. Accordingly, the Tribunal finds the decision of the Department to refuse the visa must be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Hugh Sanderson
    Member