Wasiak (Migration)

[2019] AATA 4226

Wasiak (Migration) [2019] AATA 4226 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Bozena Wasiak

CASE NUMBER:  1701841

DIBP REFERENCE(S):  BCC2016/3869924

MEMBER:Katie Malyon

DATE:10 September 2019

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 10 September 2019 at 11:35 am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant not member of family unit of person who holds Subclass 457 visa – family member’s Subclass 457 visa ceased – Tribunal attempted to contact applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363

Migration Regulations 1994(Cth), r 1.12, Schedule 2, cl 457.321

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 Immigration to refuse to grant the visa applicant, Polish national Ms Bozena Wasiak, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. At the time the visa application was lodged, Class UC contained Subclass 457. Criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  

3. Ms Wasiak applied for a Subclass 457 visa on 17 November 2016 on the basis of being included as a secondary applicant in the Subclass 457 visa application made by primary visa applicant Mr Filip Palian.  Departmental records confirm Mr Palian is the son-in-law of Ms Wasiak as the Department’s file contains a certificate English translation of Mr Palian’s Marriage Certificate of 23 January 2010 to Ms Wasiak’s daughter Karolina.     

4. The delegate refused to grant Ms Wasiak the visa on 20 January 2017 on the basis that cl.457.321 of Schedule 2 to the Regulations was not met because, based on evidence provided, the delegate was not satisfied that she is dependent on Mr Palian for her basic needs including food, clothing and shelter. A copy of the delegate’s decision was provided to the Tribunal.

   Background

5. On 26 August 2019, the Tribunal wrote to Ms Wasiak pursuant to s.359A of the Act. In its letter, the Tribunal observed that Ms Wasiak had applied for a Subclass 457 visa on the basis of being a member of the family unit of Mr Palian and that Departmental records indicate that Mr Palian’s Subclass 457 visa ceased on 7 July 2019. The Tribunal noted that it is a requirement for the grant of a Subclass 457 visa as a secondary applicant that Ms Wasiak is a member of the family unit of a person who holds a Subclass 457 visa: cl.457.321 of the Regulations.

6. The Tribunal’s letter to Ms Wasiak was sent to her representative, Mr Palian, at the email address provided in the review application.  Ms Wasiak was requested to provide any comments on or response to the information in the Tribunal’s s.359A letter on or before 9 September 2019.  The Tribunal informed Ms Wasiak that, if it did not receive a response by 9 September 2019 or a request for an extension of time in which to provide a response by that date, she would lose any entitlement to appear before the Tribunal to give evidence and present arguments.  No response has been received from Ms Wasiak, nor has she requested additional time in which to make a response.

7. As Ms Wasiak has not provided any response to the Tribunal’s s.359A letter, the provisions of s.359C of the Act apply and, 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Clause 457.321 of Schedule 2 to the Regulations provides that:

   The applicant is 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.

10. The issue in this case is whether, at the time of this decision, Ms Wasiak is a ’member of the family unit’ of a person who satisfied the primary criteria for a Subclass 457 visa and who is the holder of a Subclass 457 visa.

11. Review of the Department’s file confirms that Ms Wasiak applied for her Subclass 457 visa on the basis of being a dependent family member included in the application made by her son-in-law, Mr Filip Palian, sponsored by Telstra Corporation Limited.  Mr Palian’s primary visa application for a Subclass 457 visa together with the secondary visa applications made by his wife (Ms Wasiak’s daughter Karolina) and the couple’s 2 children, Ignacy Palian and Tytus Palian, were approved.  However, their Subclass 457 visas ceased on 7 July 2019 when they were all granted Subclass 186 Employer Nomination Scheme permanent residence visas following successful nomination by Telstra Corporation Limited. 

12. On 26 August 2019, the Tribunal wrote to Ms Wasiak pursuant to s.359A of the Act and noted that, based on its review of Departmental records, Mr Palian’s Subclass 457 visa ceased on 7 July 2019.  As such, Ms Wasiak could not be a member of the family unit of a person who satisfied the primary criteria for grant of a Subclass 457 visa and who holds a Subclass 457 visa.  Ms Wasiak did not respond to the Tribunal’s s.359A letter.

13. Based on the evidence before it and for the reasons given above, the Tribunal finds that the requirements in cl.457.321 of Schedule 2 to the Regulations have not been met by Ms Wasiak. Because Mr Palian is no longer the holder of a Subclass 457 visa it has not been necessary for the Tribunal to consider or make any findings in relation to whether Ms Wasiak was a ‘member of the family unit’ of Mr Palian as that term is defined in r.1.12 of the Regulations.

14. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.  There is no evidence before the Tribunal to indicate that Ms Wasiak meets the primary requirements for grant of a Subclass 457 visa. 

    DECISION

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

    Katie Malyon

    
    Member