1505311 (Migration)

[2015] AATA 3201

1505311 (Migration) [2015] AATA 3201 (17 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kilisimasi Latu
Mrs Mavatangi Susitina Uipi Latu

CASE NUMBER:  1505311

DIBP REFERENCE(S):  BCC2014/3409616

MEMBER:Nicole Burns

DATE:17 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the second named applicant a Skilled - Independent (Permanent) (Class SI) visa.

The Tribunal does not have jurisdiction in relation to the first named applicant.

Statement made on 17 July 2015 at 3:12pm

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 on 8 April 2015 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 13 October 2013 and applied for the visa on 12 December 2014.

3. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas because the applicant did not satisfy cl.189.212 which requires a valid skills assessment.

4. The applicants appeared before the Tribunal on 17 July 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Jurisdiction – first named applicant

6. In order to make a valid application for review under s.338(2) of the Act, if the visa application was made outside the migration zone as in this case, the applicant must have been in Australia at the time the delegate refused the visa application on 8 April 2015 and at the time the application was lodged with the Tribunal on 19 April 2015.  Departmental movement records indicate that whilst the applicant was in Australia at the time the review application was lodged, he was not in Australia at the time the delegate made the decision. 

7. The Tribunal invited the applicant to comment on its preliminary view that it did not have jurisdiction by letter dated 10 June 2015.  In his email response to the Tribunal on the same day, the applicant acknowledged that he was not in Australia on 8 April 2015, noting that he did not know that he had to remain in Australia and await the decision.  Further, he provided a copy of the decision notification from the Department which states under “Review rights” that he is only supposed to be present in Australia when he lodges the application for review, which he was. 

8. This matter was also discussed at the Tribunal hearing and the applicant said he thought he was in Australia at the time of the visa application.  However after the Member showed him the movement records that indicate that he arrived in Australia on that day (12 December 2014) at 17:46:17 whereas the online visa application form indicates that it was generated at 08:17:24, which is before his arrival to Australia, the applicant said he might have applied whilst outside Australia (he was in New Zealand for work at the time).   He also acknowledged that he was not in Australia at the time the delegate made the decision on 8 April 2015.

9. Accordingly, the Tribunal finds that the applicant was not in the migration zone at the relevant time.  As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

   Second named applicant

10. The second named applicant was in the migration zone at the relevant time and therefore the Tribunal has jurisdiction in her case.  However, as discussed at the hearing, there is no evidence before the Tribunal that she meets the primary criteria for the grant of the visa, including cl.189.212 with respect to a skills assessment.  She therefore does not satisfy cl.189.212.

11. Further, she does not meet cl.189.311 which requires her to be a member of the family unit of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  She therefore does not satisfy cl.189.311. 

12. It follows that the second named applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    Ministerial intervention

13. The applicant is a highly qualified engineer who currently works as a consultant for an engineering company in New Zealand – which explains his frequent travel there.  He obtained a PhD in Australia in environmental engineering, completed in 2012.  He told the Tribunal that the first time he applied for a visa under the skilled migration scheme (in 2011) he was unsuccessful because he did not meet the Australian study requirement, because he applied for the visa before his PhD was completed.  As a New Zealand citizen he can work and live in Australia, but is keen to become a permanent resident and eventually an Australian citizen in order to vote, among other things.  He and his wife have six children, aged between 5 and sixteen years, who all attend school in Australia; the applicant said he is keen that they become permanent residents.

14. The Tribunal found the applicants to be credible witnesses at the hearing and it appears that the first named applicant is highly qualified, has extensive experience and is likely an asset in his field.  Having regard to the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the Tribunal has decided not to refer this case to the Minister, primarily because of the limited information it has before it about the applicant’s particular circumstances in order to gauge how well they could be considered matters which may be brought to the Minister’s attention.  However it notes that this option is open to the applicant, pursuant to section 351 of the Act.

    DECISION

15. The Tribunal affirms the decision not to grant the second named applicant a Skilled - Independent (Permanent) (Class SI) visa.

16. The Tribunal does not have jurisdiction in relation to the first named applicant.

    Nicole Burns
    Member