Arthanari (Migration) - [2019] AATA 2143

Arthanari (Migration) [2019] AATA 2143 (5 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Siva Arthanari
Ms V Valarmathy Birapan
Mr Navin Raaj Siva
Mr Partiban Siva
CASE NUMBER:  1715178
DIBP REFERENCE(S):  BCC2016/1398741
MEMBER:Sheridan Lee
DATE:5 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the first and third named applicants Subclass 890 Business Skills (Residence)(Class DF) visas.
The Tribunal has no jurisdiction in relation to the second and fourth named applicants.

Statement made on 05 April 2019 at 9:23am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – applicant not in Australia for requisite time during the two years immediately prior to application – offshore when the application made – Tribunal does not have jurisdiction to review with secondary applicants – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
Migration Regulations 1994, Schedule 2, cls 890.217, 890.321
CASES
Lee v MIMAC (2013) 215 FCR 109

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2017 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
Mr Siva Arthanari (the applicant) applied for the visa seeking to satisfy the primary criteria on 8 April 2016. His wife and two sons were included on the visa as secondary applicants. The delegate refused to grant the visa on the basis that the applicant was not in Australia for the requisite time during the two years immediately prior to the visa application, as required by cl. 890.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Consequently, the delegate refused to grant visas to the secondary applicants on the basis that they were not members of the family unit of a person who is the holder of a Subclass 890 visa, as set out in cl.890.321.
The Department’s records show that at the time of the visa application and the delegate’s decision, Ms V Valarmathy Birapan and Mr Partiban Siva were outside Australia. As such, the Tribunal does not have jurisdiction to review their applications.[1] The second and fourth named applicants were advised that they had no right to merits review in the decision of the delegate, which was supplied to the Tribunal.
[1] As the Tribunal reviewable decision is covered by s.338(2) in respect of Siva Arthanari, and s.338(7A) in respect of the secondary applicants, an application for review may only be made by a non-citizen who is physically present in the migration zone at the time the delegate’s decision was made as per s.347(3A) of the Act.
The applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the third named applicant, Mr Navin Raaj Siva and the applicant’s business partner, Mr Sivagura Venkatesh. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Tamil Nadu) and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 890.217 requires that the applicant has been in Australia as the holder of one of the visas mentioned in paragraph 1104B (3)(d) of Schedule 1 for a total of at least one year in the two years immediately before the application is made.
The Regulations make clear that at least one member of the family unit who are applicants for the visa must meet the primary criteria. Nevertheless, in an application for a Class DF visa made by multiple applicants, it is necessary for a ‘discriminating choice’ to be made by such applicants as to who of them will be put forward as the ‘applicant seeking to satisfy the primary criteria’.[2]
[2] Lee v MIMAC (2013) 215 FCR 109 at [14].
In the present case, Mr Siva Arthanari was selected in the visa application form for this purpose. Prior to lodging the application for a Subclass 890 visa, the applicant was the holder of a State/Territory Sponsored Business Owner (Provisional) (Class UR) Subclass 163 visa. This is a type of Business Skills (Provisional) visa, and therefore an eligible visa mentioned in paragraph 1104B (3)(d).
The visa application was made on 8 April 2016. Departmental movement records show that during the two years immediately before the application was made, the applicant was in Australia for a total of 23 days, during the following periods:
·26 October 2014 – 6 November 2014 (12 days)
·28 August 2015 – 3 September 2015 (7 days)
·4 August 2016 – 7 August 2016 (4 days).
At the hearing, the applicant gave evidence that during the relevant period he started a business in Australia, but was also operating a business in Malaysia and was required to be present for that purpose. For that reason, he sent his wife to look after the business here and take English language classes.
The applicant explained that he is currently reducing his business activities in Malaysia so that he can expand his business in Perth.
Although the applicant’s wife was present in Australia for the purpose of running the business for much of the two year period, she returned to Malaysia to care for her sick mother and was not in Australia at the time of the application for the Subclass 890 visa, or at the time of the delegate’s decision.
Further, as noted, the applicant was selected on the form as the person seeking to satisfy the primary criteria. At the hearing, the applicant acknowledged that he was the primary applicant and that his wife had been offshore when the application was made. However, he gave evidence that he had relied on poor advice from his migration agent.
The applicant’s son and business partner both expressed dismay at the outcome of relying on the agent’s advice. Mr Venkatesh was concerned that the applicant would be forced to withdraw his investment from the business, which would cause financial problems for the company.
The Tribunal accepts that the applicant failed to appreciate what was required to apply for the Subclass 890 visa. The Tribunal further accepts that the applicant is disappointed by the advice received by his migration agent.
However, the Tribunal must find that the applicant was not in Australia for a total of at least one year in the two years immediately before the application was made, and therefore does not satisfy cl.890.217. The applicable law does not give the Tribunal any power to waive or overlook the need to meet this requirement.
It follows that the applicant does not satisfy the criteria for the grant of a Subclass 890 visa. Given that the applicant does not satisfy the primary criteria, I must find that the third named applicant does not satisfy cl.890.321 as he is not a member of the family unit of a person who is the holder of a Subclass 890 visa.
DECISION
The Tribunal affirms the decision not to grant the first and third named applicants Subclass 890 Business Skills (Residence)(Class DF) visas.
The Tribunal has no jurisdiction in relation to the second and fourth named applicants.