TEJINDER (Migration)

[2022] AATA 3276

TEJINDER (Migration) [2022] AATA 3276 (29 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms  TEJINDER

REPRESENTATIVE:  Mr Ian Singer (MARN: 0001947)

CASE NUMBER:  1902105

HOME AFFAIRS REFERENCE(S):          BCC2018/3496175

MEMBER:Penelope Hunter

DATE:29 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.

Statement made on 29 July 2022 at 1:35pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– primary visa applicant does not hold a Subclass 482 or a Subclass 457 visa – applicant is the spouse of the primary applicant – not a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 or Subclass 482 visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360 363
Migration Regulations 1994, r 1.12, Schedule 2, cl 482.312

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 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 September 2018. The delegate refused to grant the visa on 11 January 2019 on the basis that the applicant did not satisfy the requirements of cl 482.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 482.312(1) of Schedule 2 requires the applicant to be a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria is the holder of a Subclass 457 visa or Subclass 482 visa.

3. The applicant applied for the visa as a member of the family unit of Mr Amardeep Kumar who filed a separate application and sought to satisfy the primary criteria for a Subclass 482 visa.

4. On 13 July 2022, the Tribunal wrote to the applicant pursuant to the provisions of s 359A of the Act, inviting the applicant to comment or respond to information that it considered would be a reason or a part of a reason for affirming the decision under review in writing, by 27 July 2022. The information related to the fact that on 13 July 2022, the Tribunal affirmed the decision to refuse the related Subclass 482 visa sought by Mr Amardeep Kumar. The Tribunal explained the relevance of the information and informed the applicant that if it relied on the information that the applicant would not be able to meet the requirements of cl 482.312(1) of Schedule 2 to the Regulations.

5. The applicant did not respond to the request to provide information and no extension has sought. The applicant was represented in relation to the review and the Tribunal is satisfied that the invitation to provide information was sent to the correct email address for the applicant for correspondence. In these circumstances s.359C of the Act applies and the Tribunal may make a decision on the review without taking further action to obtain requested information from the applicant. Further, pursuant to s.360(3) of the Act the 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

6. In the circumstances the Tribunal considers that the applicant had has sufficient time to address  the central issues arising from the application for review. Accordingly the Tribunal has determined not to adjourn the review application further.

7. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   Consideration of claims and evidence

8. The issue in this review is whether the applicant is a member of the family unit of Mr Amardeep Kumar and satisfies cl 482.312(1) of Schedule 2 to the Regulations.

9. 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.

10. 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).

11. In this instance, the applicant is claiming to be the spouse of Mr Amardeep Kumar, and with her application she provided a copy of their marriage. The Tribunal is satisfied that the applicant is the spouse of the primary applicant Mr Amardeep Kumar.

12. As was advised to the applicant in writing, on 13 July 2022, the Tribunal affirmed the decision not to grant to Mr Amardeep Kumar a Subclass 482 visa. There is no information before the Tribunal that he has otherwise been granted a Subclass 482 or Subclass 457 visa. Therefore on the material before it the Tribunal is satisfied that the primary visa applicant, Mr Amardeep Kumar, on which the applicant’s visas depends, does not hold a Subclass 482 or a Subclass 457 visa. There is no evidence that the applicant herself, or any that there is any other member of her family unit, otherwise satisfies the primary criteria for the grant of a Subclass 482 or Subclass 457 visa. Accordingly, it follows that the Tribunal is not satisfied that the applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 or Subclass 482 visa.

13. Clause 482.312(1) of Schedule 2 to the Regulations is therefore not met

14. As one of the primary criteria for the grant of the visa to the applicant is not met, the decision under review must be affirmed.

    decision

15. The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK).

    Penelope Hunter
    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.

    …