TEJINDER (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (Subclass 482). The applicant sought to be recognised as a member of the family unit of Mr Amardeep Kumar, the primary visa applicant. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for being a member of the family unit under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant qualified as a member of the family unit of Mr Amardeep Kumar, as defined by regulation 1.12 of the Migration Regulations 1994, specifically in relation to clause 482.312(1) of Schedule 2 to the Regulations. This clause requires that a family unit member must be the spouse or de facto partner of a person who, having satisfied the primary criteria, holds a Subclass 457 or Subclass 482 visa.

The Tribunal found that while the applicant had provided evidence of her marriage to Mr Amardeep Kumar, and was therefore satisfied she was his spouse, Mr Kumar himself did not hold a Subclass 482 or Subclass 457 visa. The Tribunal noted that Mr Kumar's own application for a Subclass 482 visa had been affirmed, and there was no information to suggest he had been granted either visa. Consequently, the Tribunal concluded that the applicant did not satisfy the requirement of being 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.

As a primary criterion for the grant of the visa to the applicant was not met, the Tribunal affirmed the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.