1512116 (Migration)
[2016] AATA 3564
•24 March 2016
1512116 (Migration) [2016] AATA 3564 (24 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Pratika Gautam
Mr Hemanta PoudelCASE NUMBER: 1512116
DIBP REFERENCE(S): BCC2015/812191
MEMBER:Lisa Lo Piccolo
DATE:24 March 2016
PLACE OF DECISION: Melbourne
DECISION:In relation to the first named applicant, the Tribunal does not have jurisdiction in this matter.
In relation to the second named applicant, the Tribunal affirms the decision not to grant him a Temporary Graduate (Post Study Work) (Class VC) visa.
Statement made on 24 March 2016 at 4:10pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
An application was made to the Tribunal on 3 September 2015 for review of a decision to refuse to grant Temporary Graduate (Post Study Work) (Class VC) visa.
Pratika Gautam – First Named Applicant
For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.
The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.
On 27 October 2015 the Tribunal wrote to the first named applicant advising that it was of the view that the application is not a valid application, as there does not appear to be a decision to refuse the first named applicant the grant of a subclass 485 visa. The first named applicant was invited to make comments in writing by 10 November 2015 on whether a valid application has been made. The Tribunal did not receive a response from the first named applicant.
As no reviewable decision had been made with respect to the first named applicant at the time the review application was lodged, it follows that the application in so far as it relates to the first named applicant, was not properly made and the Tribunal does not have jurisdiction in relation to the first named applicant.
Hemanta Poudel – Second Named Applicant
The delegate refused the second named applicant’s visa because the second named applicant did not satisfy cl.485.311 of Schedule 2 to the Regulations because the delegate was not satisfied that he met the requirements for the grant of the visa.
The Tribunal has before it the departmental file[1] relating to the second named applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
[1] D1 - Departmental file BCC2015/812191, folio numbered 1-65.
By letter dated 4 March 2016[2] the Tribunal wrote to the second named applicant advising that it had considered all the material before it relating to the review application, but that it was unable to make a favourable decision on that information alone. The second named applicant was invited to appear before the Tribunal on 24 March 2016 via video conference in Perth.
[2] T1, f.34-38.
The letter dated 4 March 2016 was transmitted by email to the second named applicant to the last email address provided to the Tribunal by the applicants in connection with the review in accordance with section 379A(5)(b) of the Act.
The second named applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear.
The Tribunal Discretion to Reschedule the Hearing
The Tribunal notes that under section 362B (1) of the Act it has a discretion, which is confirmed by section 362B (2), to reschedule the applicant’s appearance before it, or to delay its decision on the review in order to enable his appearance to be rescheduled. The Tribunal must exercise its power under 362B ‘reasonably’ and, that reasonableness is informed by the factual circumstances in respect of this particular review and this particular applicant.[3]
[3] See Kaur v MIBP [2014] FCA 915.
The Tribunal notes that it is under no statutory obligation to seek to contact the applicant to enquire as to the reason for the non-attendance. In SZHSQ v MIMA[4] the Federal Court commented that the Act expressly authorises the Tribunal to proceed without making such enquiries.[5] Similarly, in Shah v MIAC[6] the Federal Magistrates Court commented that to impose a requirement that the Tribunal take steps to ascertain whether an applicant wishes to have a further opportunity to appear following their non-appearance at a scheduled hearing would undermine the administrative certainty sought to be achieved by the deemed receipt provisions applicable to the sending of hearing invitations.[7]
[4] (2006) 155 FCR 159 at [62].
[5][6] [2011] FMCA 18 (Cameron FM, 16 February 2011) at [110].
[7]In considering whether it would be appropriate for it to exercise this discretion in the second named applicant’s favour, the Tribunal has taken into account its legal obligations under the Act to pursue the objective of providing a mechanism of review that is fair, just, informal, economical and quick.
The Tribunal has had regard to the fact that the hearing invitation was sent approximately three (3) weeks before the scheduled hearing and that the invitation to appear before the Tribunal was sent by email to the address provided to the Tribunal by the recipient in connection with the review in accordance with section 379A (5)(b) of the Act.[8] The Tribunal also takes into account that no contact has been made by the second named applicant to the Tribunal.
[8] T1, f.7.
Having regard to all of the circumstances outlined above, and pursuant to section 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the second named applicant to appear before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, cl.485.311(a) requires that a member of the family unit who holds a subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person.
R.1.12 relevantly defines a person as a member of the family unit of another person if they are the spouse or de facto of the family head.
According to the visa application form (lodged online), the second named applicant applied for the visa on the basis that he was married to the first named applicant. He was A copy of a marriage certificate was submitted to the Department.
Whilst the Tribunal acknowledges that the second named applicant made a combined application with the first named applicant and was a member of her family unit, there is no evidence before the Tribunal that the first named applicant holds or has ever held a subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa. There is also no evidence that the second named applicant is a member of the family unit of a person who holds a Skilled (Provisional)(Class VC) visa on the basis of satisfying the primary criteria for the grant of a subclass 485 visa.
Accordingly, the Tribunal is not satisfied that second named applicant meets cl.485.311.
For these reasons, the criteria for the grant of a Subclass 485 visa are not met. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal does not have jurisdiction in the matter the first named applicant.
The Tribunal affirms the decision not to grant the second named applicant a Temporary Graduate (Post Study Work) (Class VC) visa.
Lisa Lo Piccolo
Member
In MZYZI v MIAC [2013] FMCA 242 (Riley FM, 4 February 2013) at [13], the Court observed that there is
no obligation upon the Tribunal to telephone an applicant to check his or her whereabouts if they failed to
attend a scheduled hearing. See also Perera v MIAC [2008] FMCA 1526 (Riley FM, 12 November 2008).
In that case, the Court held that the fact that the applicant had previously responded to the Tribunal’s
correspondence but failed to do so for the hearing invitation did not make it obvious that an inquiry should
be made as to whether he wished to attend the hearing, particularly as the invitation had apparently been sent
without incident to a professional migration agent.
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