1508322 (MIGRATION)

[2016] AATA 4225

1508322 (MIGRATION) [2016] AATA 4225 (25 JULY 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Seung Sook Baek

CASE NUMBER:  1508322

DIBP REFERENCE(S):  BCC2014/2948808

MEMBER:Bruce MacCarthy

DATE:25 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

·cl.887.212 of Schedule 2 to the Regulations; and

·cl.887.213 of Schedule 2 to the Regulations.

Statement made on 25 July 2016 at 2:14pm

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 2 June 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 November 2014. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 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, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.887.213 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant had worked full time in a specified regional area for a total of at least one year.

4. The applicant appeared before the Tribunal on 25 July 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. 

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The main issue in the present case is whether or not the applicant has worked full-time in a specified regional area for a total of at least one year . 

7. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of certain skilled or bridging visas, as mentioned in cl.887.212.  These include Subclass 475 (Skilled – Regional Sponsored) visas.  The evidence before the Tribunal indicates that, at the time she applied for the Subclass 887 visa, the applicant had held a Class VF (Subclass 475) visa since 30 May 2011.

   Is there a ‘specified regional area’ applicable in the applicant’s situation?

8. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa.  It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.  The provisions of cl.887.111 are set out in the attachment to this decision.

9. The applicant applied for the Subclass 887 visa on 5 November 2014, relying on her Subclass 475 visa.  In written submissions to the Tribunal, the applicant said she applied for that visa in 2007.  In these circumstances, the only parts of cl.887.111 under which a ‘specified regional area’ could be defined are sub-paragraphs 887.111(2)(c) and 887.111(3)(c). 

10. Each of these sub paragraphs contains a requirement that the visa on which the applicant relied was subject to a particular condition, namely Condition 8549 and Condition 8539 respectively.  According to the Department’s movement records, the applicant’s Subclass 475 visa was not subject to either of those conditions.  If that were the case, there would be no ‘specified regional area’ applicable to the applicant’s situation.  This was discussed with the applicant at length at the hearing.  She told the Tribunal that she had applied for the Subclass 475 visa on the clear understanding that that was a pathway to an application for a Subclass 887 visa. 

11. Although the movement records do not show either of the 2 conditions mentioned in the previous paragraph as being attached to the applicant’s visa, cl.475.6 of Schedule 2 to the Regulations (as applicable at the time the applicant applied for the Subclass 475) provides that, if the applicant was nominated by a State or Territory government, as described in subclause 475.213(2) Condition 8539 “must be imposed” (cl.475.612) and that, if the applicant was sponsored by a person as described in subclause 475.213(3), Condition 8549 “must be imposed” (cl.475.613).

12. Under the Migration Act 1958 and Migration Regulations 1994, a visa is either subject to specified conditions (s.41(1) and r.2.05(1)) or the Minister may impose certain conditions on visas (s.41(3) and r.2.05(2)). The former does not require an act of imposing the condition before it can take effect; the visa is subject to the condition as specified by the Regulations. The use of the language ‘must be imposed’ in the context of cl.475.612 and cl.475.613, indicates an intention that a Subclass 475 visa is subject to either condition 8539 or 8549 depending upon the nature of the sponsorship involved, rather than requiring a step of deciding to impose the condition: see Krummrey v MIMIA [2005] FCAFC 258.

13. Given that the applicant was granted a Subclass 475 (Skilled - Regional Sponsored) visa, the Tribunal infers that she must have been either nominated by a State or Territory government, as described in subclause 475.213(2) or sponsored by a person as described in subclause 475.213(3).  In these circumstances, the Tribunal accepts the written submissions made by the applicant and presented at the hearing to the effect that she was nominated by the Government of South Australia. 

14. As, in these circumstances, cl.475.612 required that Condition 8539 be imposed on the Class VF visa held by the applicant at the relevant time, the Tribunal finds the application for the Subclass 887 visa was made on the basis of the applicant having held a Skilled (Provisional) (Class VF) visa that is subject to condition 8539.  In these circumstances, a specified regional area is a part of Australia that, at the time at which the applicant’s Subclass 475 visa was first granted to the applicant, was specified in an instrument in writing under item 6A1001 of Schedule 6A or item 6D101 of Schedule 6D. 

    Did the applicant work in a regional area?

15. The relevant instrument in this case is IMMI 05/077.  That instrument specifies, among other areas, or postcodes within South Australia.  The applicant has presented evidence to the Department that, between November 2011 and November 2014, she was self-employed, and operated a business involved in on line trading of handbags.  She provided evidence that this business operated at an address in South Australia. 

16. The Tribunal is satisfied, given this evidence, that the applicant had worked in a specified regional area for a total of least 1 year as the holder of 1 or more of the kinds of visas mentioned in cl.887.212, namely a Class VF (Subclass 475) visa. 

    Was the work full‑time work?

17. The delegate refused the application on the basis that the volume of work undertaken by the applicant was not sufficient to be regarded as “full-time.”  However, the applicant has since provided to the Tribunal further evidence relating to her business.  The Tribunal is satisfied, on the basis of the totality of the evidence presented to the Department and to this Tribunal, that, while operating the business, the applicant was involved in checking online sales orders and printing relevant labels, communicating with her business partner overseas by email and telephone, responding to email queries from clients, checking inventories, undertaking web design.  The Tribunal is satisfied that this work amounted to full time work.

18. The Tribunal is therefore satisfied that, at the time she applied for the visa, the applicant had worked full-time in a specified regional area for a total of at least one year as the holder of a visa of the kind mentioned in cl.9887.212. Given this conclusion, the Tribunal finds that the applicant satisfies the requirements of cl.887.213 of Schedule 2 to the Regulations

    Did the applicant live in a regional area?

19. Clause 887.212 requires that, at the time of visa application, the applicant had lived in a specified regional area for a total of least 2 years as the holder of 1 or more of certain skilled or bridging visas, as mentioned in in that clause.  These include Subclass 475 (Skilled – Regional Sponsored) visas.  As noted above, at the time she applied for the Subclass 887 visa, the applicant had held a Class VF (Subclass 475) visa since 30 May 2011.

20. The Department’s file contains, at folio 60B, evidence that the applicant was residing in South Australia at the time she applied for the Subclass 887 visa, and had done so since March 2012.  The Tribunal accepts this evidence.  As the Tribunal has found above that South Australia is a specified regional area, it follows that the applicant satisfies the requirements of cl.887.212 of Schedule 2 to the Regulations.

    Conclusion

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

22. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

    ·cl.887.212 of Schedule 2 to the Regulations; and

    ·cl.887.213 of Schedule 2 to the Regulations.

    Bruce MacCarthy
    

    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    …

    887.1      Interpretation

    887.111

    (1)    In this Part:

    specified regional area, for an applicant who applies for a Subclass 887 visa, means a part of Australia identified in accordance with subclause (2) or (3).

    (2)    If an applicant applies for the Subclass 887 visa on the basis of having held:

    (a)    a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa; or

    (b)    a Skilled (Provisional) (Class VC) visa that is subject to condition 8549; or

    (c)    a Skilled (Provisional) (Class VF) visa that is subject to condition 8549; or

    (d)    a Subclass 475 (Skilled — Regional Sponsored) visa in relation to which:

    (i)the application for the visa was made on or after 1 July 2010; and

    (ii)the visa was granted in the period starting on 1 July 2010 and ending on 31 December 2010; and

    (iii)the visa was granted on the basis that the requirements of subclause 475.222(3) were satisfied; or

    (e)    a Subclass 487 (Skilled — Regional Sponsored) visa in relation to which:

    (i)the application for the visa was made on or after 1 July 2010; and

    (ii)the visa was granted in the period starting on 1 July 2010 and ending on 31 December 2010; and

    (iii)the visa was granted on the basis that the requirements of subclause 487.225(3) were satisfied; or

    (f)     a Skilled — Regional Sponsored (Provisional) (Class SP) visa that is subject to condition 8549;

    a specified regional area is a part of Australia that, at the time at which a visa of that kind was first granted to the applicant, was specified by the Minister in an instrument in writing under item 6701 of Schedule 6 or was a designated area.

    (3)    If an applicant applies for the Subclass 887 visa on the basis of having held:

    (a)    a Skilled — Independent Regional (Provisional) (Class UX) visa; or

    (b)    a Skilled (Provisional) (Class VC) visa that is subject to condition 8539; or

    (c)    a Skilled (Provisional) (Class VF) visa that is subject to condition 8539; or

    (d)    a Subclass 475 (Skilled — Regional Sponsored) visa in relation to which:

    (i)the application for the visa was made on or after 1 July 2010; and

    (ii)in making the application, the requirements of subitem 1228(3A) of Schedule 1 were satisfied; and

    (iii)the visa was granted in the period starting on 1 July 2010 and ending on 31 December 2010; or

    (e)    a Subclass 487 (Skilled — Regional Sponsored) visa in relation to which:

    (i)the application for the visa was made on or after 1 July 2010; and

    (ii)in making the application, the requirements of subitem 1229(3A) of Schedule 1 were satisfied; and

    (iii)the visa was granted in the period starting on 1 July 2010 and ending on 31 December 2010; or

    (f)     a Skilled — Regional Sponsored (Provisional) (Class SP) visa that is subject to condition 8539;

    a specified regional area is a part of Australia that, at the time at which a visa of that kind was first granted to the applicant, was specified by the Minister in an instrument in writing under item 6A1001 of Schedule 6A or item 6D101 of Schedule 6D.

    887.2      Primary criteria

    887.21      Criteria to be satisfied at time of application

    887.211

    The applicant meets the requirements set out in subitem 1136(7) of Schedule 1.

    887.212

    The applicant must have lived in a specified regional area for a total of at least 2 years as the holder of 1 or more of the following visas:

    (a)a Skilled — Independent Regional (Provisional) (Class UX) visa;

    (b)a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa;

    (c)a Subclass 475 (Skilled — Regional Sponsored) visa;

    (da Subclass 487 (Skilled — Regional Sponsored) visa;

    (e) a Skilled — Regional Sponsored (Provisional) (Class SP)) visa;

    (f)a Bridging A (Class WA) visa, or a Bridging B (Class WB) visa, that was granted on the basis of a valid application for:

    (i)    a Skilled — Independent Regional (Provisional) (Class UX) visa; or

    (ii)    a Skilled (Provisional) (Class VC) visa; or

    (iii)   a Skilled — Regional Sponsored (Provisional) (Class SP) visa.

    887.213

    The applicant must have worked full-time in a specified regional area for a total of at least 1 year as the holder of 1 or more of the visas mentioned in clause 887.212.