Chow (Migration)

[2019] AATA 497

Chow (Migration) [2019] AATA 497 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Wai Ling Chow
Ms Mei Ying Wong
Mr Ping Sum Chow
Mr Wai Kin Kenny Chow

CASE NUMBER:  1730206

DIBP REFERENCE(S):  BCC2016/1375098 BCC2016/1375383 BCC2018/5586104

MEMBER:Sheridan Lee

DATE:7 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first named applicant a Subclass 892 Business skills (Residence)(Class DF) visa.

The Tribunal has no jurisdiction in relation to the second, third and fourth named applicants.

Statement made on 07 March 2019 at 4:43pm

CATCHWORDS
MIGRATION – Business skills (Residence)(Class DF) visa – Subclass 892 – multiple applicants – issue of which applicant seeks to satisfy the primary criteria – department decision – primary applicant not in Australia for the requisite time during the two years immediately prior to the visa application – primary applicant outside Australia at time of review application – secondary applicant appeared at review – not the family member of a person holding Subclass 892 visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 338(2), 338(7A), 347(3), 347(3A)

Migration Regulations 1994, Schedule 2 cls 892.215, 892.321

CASES
Lee v MIMAC (2013) 215 FCR 109

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 16 November 2017 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

2. Wai Ling Chow applied for the visa as a secondary applicant on 6 April 2016. Ms Chow’s mother, Mei Ying Wong was listed as the applicant seeking to satisfy the primary criteria. The delegate refused to grant the visa on the basis that Mei Ying Wong was not in Australia for the requisite time during the two years immediately prior to the visa application, as required by cl.892.215 of Schedule 2 to the Migration Regulations (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 892 visa, as set out in cl.892.321.

3. The Department’s records show that at the time of the delegate’s decision and the application for merits review, Mei Ying Wong, Ping Sum Chow and Wai Kin Kenny Chow were outside Australia. As such, the Tribunal does not have jurisdiction to review their applications.[1] The second, third 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 ss.338(2) in respect of Mei Ying Wong  and 338(7A) in respect of Ping Sum Chow and Wai Kin Kenny Chow, 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 and at the time when the application for review is made as per ss. 347(3) and 347(3A) of the Act.

4. Wai Ling Chow (the applicant) appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Clause 892.215 requires the applicant to hold a Class UX visa or have been in Australia for a total of 1 year in the 2 years immediately prior to their visa application on a:

   ·visa prescribed in item 1104B(3)(f); and/or

   ·bridging visa A or B, if the bridging visa was granted awaiting the decision on a valid 457IE FAO application, which was subsequently granted.

2. 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 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].

3. In the present case, Mei Ying Wong was selected in the visa application form for this purpose. As outlined in the decision of the delegate, it was determined that she did not meet the requirement set out in cl.892.215 and the visa was refused.

4. At the hearing, the applicant supplied a written statement from Mei Ying Wong. The statement acknowledges that she did not meet the statutory requirements to be granted the Subclass 892 visa. The statement outlines that she relied on erroneous advice from her migration agent. Further, the applicant conceded that her mother did not satisfy the primary criteria.

10.    As outlined, the applicant did not seek to satisfy the primary criteria, as her mother was selected for that purpose. Given that Mei Ying Wong did not meet the primary criteria, I must find that the applicant does not satisfy cl.892.321 as she is not the member of a family unit of a person who is the holder of a Subclass 892 visa.

DECISION

11.    The Tribunal affirms the decision not to grant the first named applicant a Subclass 892 Business skills (Residence)(Class DF) visa.

12.    The Tribunal has no jurisdiction in relation to the second, third and fourth named applicants.

Sheridan Lee
Member