Chowdhury (Migration) - [2024] AATA 1011

Chowdhury (Migration) [2024] AATA 1011 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kazi Jahan Jeb Chowdhury
Mrs Nusrat Jahan
Miss Kazi Ashrafin Jahan
CASE NUMBER:  2116921
HOME AFFAIRS REFERENCE(S):          BCC2021/1186800

MEMBER:Alison Mercer
DATE:5 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 5 April 2024 at 5:44pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Accountant (General) – skills assessment – more than 3 years old at time of invitation to apply – new assessment obtained after the date of invitation – Tribunal declined indefinite deferral of decision-making – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 491.214
CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Thapa v MICMSMA [2021] FCCA 686
Waensila v Minister for Immigration and Border Protection (2016) FCAFC 3

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 Home Affairs on 28 October 2021 to refuse to grant the visa applicants (the applicants) Skilled Work Regional (Provisional) (Class PS) subclass 491 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants were invited to apply for the visas on 26 May 2021 and applied for the visas on 3 June 2021. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.491.214, which required that, at the time that the applicants were invited to apply for the visas, the relevant assessing authority for the applicant’s nominated skilled occupation had assessed his skills as suitable for that occupation, the skills assessment in question was not given for the purposes of a subclass 485 (Temporary Graduate) visa application, and if the assessment specified a validity period, that period had not expired (or if no period was specified, the assessment was not more than 3 years old).
The delegate found that the applicant had nominated the occupation of Accountant (General) but the skills assessment he provided for this occupation from CPA Australia was dated 9 May 2018 and was thus more than 3 years old at the time that the visa application was made.
The delegate acknowledged that the applicant had provided a new skills assessment for his occupation, issued by CPA Australia on 13 September 2021, but found this could not be taken into account as it was obtained after the applicant was invited to apply for the visa on 26 May 2021. The delegate therefore found that the applicant could not meet the criteria for a subclass 491 visa.
The delegate also refused to grant visas to the second and third named applicants, as they could not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 491 visa, and there was no evidence that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 17 November 2021. It was accompanied by a copy of the delegate’s decision, and an authority by which the applicants appointed a registered migration agent, Mr Raman Doegar, as their representative and authorised recipient for correspondence.
On 14 September 2023, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing to be conducted by videoconference on 3 October 2023. They were requested to provide any further material in support of their case to the Tribunal by 26 September 2023.
On 21 September 2023, the applicants indicated that they would attend the hearing. On 26 September 2023, the applicants advised the Tribunal that their agent was no longer acting for them and they appointed the applicant as their authorised recipient for correspondence.
On the same date, the applicant provided the following email submissions:
…
I have attached a few supporting documents regarding my case number 2116921. Sir I lodged my 491 application because I was committed to live in the ORANA region. I have attached all the documents to demonstrate how dedicated I am to live in orana region to value 491 visa. I am also working in the aged care and disability sector and contributed in peak covid 19 times.
Now on the ground my visa was refused because my skill assessment was expired on the time of nomination. I have applied for the visa on 2nd May 2021 and my CPA was valid on that time and it was due to expire on 10 May. Orana team send me documents to give them further documents on 18th May. If they asked me to send them another skill assessment I would have definitely give them a new one. I have attached the screenshot of the emails of the correspondents and my CPA as well. I have done everything for the visa, but one single mistake put me in the big consequences.
…
I have attached a separate file for further clarification for my ground. I am eligible to do my skill assessment as I have done my master's from Australia. I am admitting that its was my responsibility to take care of my all valid documents but I was missed slightly with the applying in RDA and applying in immi account. I did not go with any migration agent to lodge my visa this is the only my lackens [sic]. Other than that I have fulfilled all the requirements of 491 visa and still doing afterwards my visa refused with a hope that my visa will be accepted. If RDA asked me to give me another valid skilled assessment on 18/5/21, I would have definitely give one as I have done after I was asked by case officer in september. If case officer come within 2 month after I lodged my visa, I would still be able be make another skill assessment to fall under case of Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686. So cam [sic] provide valid skill assessment but I was refused only for time frame which is a human error. Please have a kind look on my case.
…
The applicants attached the following documents to the emails:
·lease agreement dated 19 March 2020 for their address in Dubbo, New South Wales;
·income statement for the applicant for the financial year 2023/2024 showing his employer as Maranatha House;
·MLC Masterkey Business Superannuation statement issued to the applicant on 9 June 2023 for the applicant for the period 1 July 2018 to date, showing employer contributions for that period;
·statement of employment issued by Maranatha House Aged Care on 21 July 2023, certifying that the applicant was employed there as a full time permanent Personal Carer between 26 June 2020 and 12 July 2023;
·applicant’s payslips from Maranatha House to 16 May 2023;
·utility bill issued to the applicant for Dubbo address for the period 17 June 2021 to 14 September 2021;
·CPA Australian skills assessment issued to the applicant on 9 May 2018 finding that his skills are suitable for his nominated occupation of Accountant (General) (ANZSCO 221111) with no validity period specified;
·screen shots of Department email of 2 May 2021 acknowledging receipt of the applicants’ subclass 491 visa application, and request from RDA Orana Skilled Migration Team to the applicant on 18 May 2021 advising that assessment of his subclass 491 visa has commenced and requesting him to provide a signed and dated reference letter from his employer and a valid English language test; and
·CPA Australia skills assessment issued to the applicant on 13 September 2021 finding that his skills are suitable for his nominated occupation of Accountant (General) (ANZSCO 221111) with no validity period specified.
The first and second applicants appeared before the Tribunal by videoconference on 3 October 2023 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by videoconference, having determined that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicants, who reside in regional New South Wales, while the Presiding Member in this matter is based in the Tribunal’s Victorian registry. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicants told the Tribunal that they had lived in Dubbo, in regional New South Wales, for at least 12 months prior to lodging an expression of interest to be invited to apply for the subclass 491 visa. The applicant said that he had worked for Maranatha Aged Care Home during this period, and up until July 2023. He told the Tribunal that he was now working for Uniting Care in Dubbo on a full time basis, providing care to the aged and also to disabled adults.
The applicant told the Tribunal that he lodged the expression of interest, and then the visa application, without the assistance of a migration agent or lawyer. He was aware that there were expiry periods for his English test results, his professional year qualification and his NAATI accreditation for his community language, but did not turn his mind to his skills assessment from CPA Australia. At the time that he lodged his Expression of Interest on 2 May 2021, his skills assessment was still valid. He also noted that had he been invited to apply for the visa sooner than 26 May 2021, it would still have been valid as its validity did not expire until 9 May 2021. The applicant said that he understood that the Department would request him to provide another skills assessment, if it was needed, and that they would check its validity at the time that he lodged the visa application. He noted that the Department did request additional documents from him on 18 May 2021, then issued the invitation to apply on 26 May 2021. If the Department had requested a new skills assessment at this time, he could have obtained a new CPA Australia skills assessment in about 10 days, which would still have been within the invitation to apply validity period, which ran from 26 May 2021 to 26 July 2021. However, the Department only requested a new skills assessment in September 2021.
In response to the Tribunal’s query, the applicants said that they had received migration advice to pursue the application for review with the Tribunal, and to potentially apply for a new skilled visa if and when a new allocation of skilled visas was made by the New South Wales government. This had not occurred yet, and the applicant noted that since the refusal of the subclass 491 visa, he had become older, and his English test, NAATI accreditation and Professional Year qualification had expired, which would affect his ability to meet the requirements for a new skilled visa. He told the Tribunal that he had asked his current employer whether they would nominate him for a visa, but they had not indicated whether they would do so yet.
The Tribunal discussed with the applicants its view that, although the applicant had obtained 2 positive skills assessments from CPA Australia for his nominated skilled occupation, the earlier one was more than 3 years old at the time he was invited to apply for the subclass 491 visa, and the second one was obtained after that date. Neither therefore met the requirements of cl.491.214, and there was no discretion in the Migration Act or Regulations to waive its requirements. The Tribunal undertook to defer its decision for a period after the hearing in order for the applicants to consider whether they wished to request the Tribunal to refer their matter to the Minister for intervention pursuant to s.351 of the Act.
On 17 October 2023, the Tribunal received the following email advice from the applicant:
…
Dear Presiding member,
Thank you for your kind reply. Thank you for giving me an option to raise my case for Minister intervention. I really appreciate this. After discussing with my lawyer, I came to a decision that I Do Not Want to proceed with Minister intervention regarding my case at the moment.
I have already secured an employer (Uniting australia) and will initiate my 482 visa soon. However, I need to lodge the 482 visa offshore. So if you can defer the decision on my case so I can apply for a bridging B visa to lodge the 482 visa. I have attached my employer email regarding 482 visa. The announcement was made from the company on 16/5/23 and they have started my initial process of 15/9/23.
Furthermore, I am providing these two cases to use as a legal argument in my case: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; Waensila v Minister for Immigration and Border Protection (2016) FCAFC 3
Thank you madam for your kind attention.
…
The attached documents were:
·    email dated 15 September 2023 from Uniting to the applicant about potential sponsorship and nomination of him for a subclass 482 visa, stating (in part) ‘Based on the information we have from you to date we would like to invite you to the next stage of the process. We ask that you please complete a detailed questionnaire so we can assess your circumstances and eligibility against the criteria set by the Government and Uniting. The questionnaire will take approximately 30 minutes to complete, and requests detailed information about your background, work history and qualifications, so please take some time to sit in a quiet space before you begin. All responses are confidential to the Immigration team. To start the questionnaire, click here sponsorship questionnaire We encourage you to submit your responses by 5pm, Friday 29 September 2023, so we can assess your eligibility as soon as possible;’
·    certificate of service dated 25 September 2023 issued by Uniting confirming that the applicant has worked there from 1 August 2022 on a part-time permanent basis (40 hours per fortnight) as a Home and Community Care Support Worker; and
·    announcement from Uniting to its employees dated 16 May 2023, referring to (amongst other things) a new visa initiative as part of a labour agreement for the aged care industry, which would allow age care providers who met certain requirements to offer overseas workers the opportunity to come to Australia and work in aged care. It is further stated that Uniting has entered into a Memorandum of Understanding (MOU) with the Australian government to utilise this program, including for existing employees on temporary visas.
On 27 October 2023, the Tribunal sought an update from the applicant as to whether he had been granted a bridging visa B to travel outside Australia to lodge a new subclass 482 visa application.
On 30 October 2023, the applicant responded, indicating that he was granted a bridging visa B in July, just after the Uniting announcement made on 16 May 2023, in order to get himself ready to apply for a subclass 482 visa. The applicant advised that his employer Uniting had started the process, but hadn’t finalised it yet. He stated that when he last asked for a status update on 11th October 2023, they said they were still working on it. He attached their response email for more clarification. The applicant advised that once everything was finalised, he would need to travel offshore to lodge a subclass 482 visa application, but he had to wait for Uniting to confirm that they had approval to proceed first. He indicated that he was confident this would be approved as Uniting had applied to have a Labour Agreement approved. The applicant asked the Tribunal for additional time for this to happen.
On 3 November 2023, the Tribunal advised the applicant that the Presiding Member agreed to defer her decision until 30 November 2023, at which time the matter would be reviewed. The applicant was asked to advise the Tribunal if he went offshore to make a subclass 482 visa application before then.
On 30 November 2023, the applicant updated the Tribunal as follows:
…
Following your email received on 3rd November, I am still waiting for Uniting responses. I emailed Uniting regarding my situation. Uniting is still working on the process for visa sponsorship under the new Aged Care industry Agreement. I have attached the latest email I received on 20th November from them for your reference. I have no information when they are going to start their nomination process. Uniting emailed that they will give information in coming weeks. If you can give me some additional time, Uniting may give their nomination information. My humble request if you can defer the decision for more time I can come up with 482 visa nomination news.
…
On 29 January 2024, the Tribunal followed up with the applicant as to whether a nomination had been lodged in relation to him by Uniting. On the same date, the applicant responded to advise that he was still waiting for this to occur. Later on that date, he advised the Tribunal as follows:
…
Thank you for your email. I am deeply depressed regarding my current situation. Due to my lack of knowledge I have lost a golden opportunity of my permanent migration, now I am in uncertain situation. Don’t know how/when can I get an another opportunity to gain another permanent migration pathway. My age is increasing , all of my test results are expired it’s hard to get my migration points back. I have a 2 years daughter and wife, I am very concern about my families future. Due to my limited knowledge I don’t know how when can I get back into track in my life.
Dear madam, is there any chance you can give me a positive response to my case. I have done all the right things in Australia since I came in 2014, study, worked hard, served the community in the covid period. I just want to secure my future life in Australia. If you can grant my visa, I’ll be grateful to you my entire life.
…
On 20 February 2024, the Tribunal wrote to the applicants to advise that, as discussed at the hearing, it was unable to find that the applicant met the criteria for a subclass 491 visa. It asked the applicants to clarify whether they wished to request that the Tribunal refer their matter for Ministerial intervention pursuant to s.351 of the Act.
On 26 February 2024, the Tribunal received the following response from the applicant:
…
Thank you for your email. I have discussed this matter with my lawyer earlier and I do NOT want to refer this matter to the Presiding member at the moment.
I am deep uncertainty with my future visa madam. The score is I have earned to gain my skill nomination, all of them are now expired and it is very hard to get all back. The skill assessment was expired due to my fauly [sic] so that my visa was refused and now I am facing the consequences. I am uncertain about my and family future visa. Its so frustrating that I am not meeting the criteria cl.491.214 of Schedule 2 to the Migration Regulations. I made my and family future in uncertainty. Now working for other visa will take time and there is uncertainty as well.
My previous employer, who were in the talk for 482 visa, they have no answer yet. they have no answer when they can start the process. they have no answer regarding the 482 visa. So I am uncertain about their visa as well. I have lose hope of company sponsorship. I am planning to go for other options to gain another visa . For this reason I need some time.
Madam, if you can grant me few months time before your decision, that will be good for me, if possible.
Furthermore, I am providing these two cases to use as a legal argument in my case: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; Waensila v Minister for Immigration and Border Protection (2016) FCAFC 3
…

On 2 April 2024, the Tribunal wrote to the applicants to acknowledge the applicant’s response and to advised that it was unable to defer making its decision for a significant length of time without any clear basis, and that it anticipated making its decision in the first half of April 2024.
The Tribunal has considered whether to defer its decision for a further period, but – in view of the fact that doing so would not change the situation for the applicants’ subclass 491 visa application, which is the visa application under review – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For the following reasons, the Tribunal has concluded that the decisions under review must be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.491.214, which provides as follows:
491.214
(1) At the time of invitation to apply for the visa:
(a) the relevant assessing authority for the applicant's nominated skilled occupation had assessed the applicant's skills as suitable for that occupation; and
(b) the assessment was not for a Subclass 485 (Temporary Graduate) visa; and
(c) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment—the period had not ended; and
(d) if paragraph (c) did not apply—not more than 3 years had passed since the date of the assessment.
(2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
…
It is not disputed that the date that the applicant was invited to apply for the visa was 26 May 2021. With the online visa application, the applicant provided a positive skills assessment for his nominated skilled occupation of Accountant (General) issued by CPA Australia on 9 May 2018. The Tribunal is satisfied that the skills assessment did not have a specified expiry date; it therefore comes within cl.491.214(1)(d), which requires that not more than 3 years had passed since the date of the skills assessment. The Tribunal finds that more than 3 years had passed between 9 May 2018 and 26 May 2021, and therefore the CPA Australia skills assessment of 9 May 2018 does not satisfy cl.491.214(1)(d) and therefore does not satisfy cl.491.214 as a whole. The Tribunal further finds that the applicant’s second positive skills assessment from CPA Australia was dated 13 September 2021, after the date he was invited to apply for the subclass 491 visa, and therefore it cannot satisfy the requirements of cl.491.214 either.
The Tribunal has considered the recent case of Thapa v MICMSMA [2021] FCCA 686, in which the Court considered the interpretation of cl.189.222, which, like cl.491.214, requires that the applicant had a relevant skills assessment ‘at the time of the invitation to apply for the visa.’ The Court held that the relevant point in time at which the requirement in cl.189.222 must be met is not the date of the invitation but rather, the period within which the invitation was valid or open (being the period between the date of the invitation and the expiry of the invitation). This interpretation appears equally applicable to the requirements of cl.491.214. However, in this case, that period ran between 26 May 2021 and 26 July 2021; during this period, the first skills assessment was more than 3 years old, and the second skills assessment had not been issued. Therefore, Thapa’s case does not assist the applicant.
The Tribunal has also considered the 2 cases referred to it by the applicant, being Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 and Waensila v Minister for Immigration and Border Protection (2016) FCAFC 3.
In Berenguel, the plaintiff sought judicial review of a decision of a delegate of the Department to refuse to grant him a Skilled (Residence) (Class VB) subclass 885 visa. The plaintiff applied for the visa on 21 April 2008. On his application form he indicated that he had booked an International English Language Testing System (IELTS) test for 10 May 2008. The plaintiff subsequently sat the test and achieved a score of 6 for each of the 4 test components (competent English standard).
In December 2008, a delegate refused to grant the visa on the basis that the plaintiff did not meet cl.885.213 which came under the heading ‘Criteria to be satisfied at time of application’ and required a visa applicant to have ‘competent English’ as defined in r.1.15C, or in limited circumstances, the lesser standard of ‘vocational English’ as defined in r.1.15B. Those definitions were satisfied if the person had achieved a specified score, in a test conducted not more than 2 years before the day on which the application was lodged. The delegate found that as the applicant had not provided the result of an IELTS test conducted not more than 2 years before the day on which the application was lodged, he did not meet the requirement of having vocational English at time of application.
The plaintiff commenced proceedings in the High Court’s original jurisdiction seeking writs against the Minister. It was common ground that the definitions in r.1.15B and 1.15C could be satisfied by a test taken after the time of application was lodged; at issue was whether criteria specified as time of application criteria could only be satisfied at that time. The matter was subsequently referred to a Full Court for determination of the following substantive questions:
·Did the delegate misconstrue r.1.15B(5) in finding the plaintiff had not achieved the requisite test score in a test conducted 2 years before the date of application?
·In the circumstances of the present case, could the plaintiff satisfy cl.885.213 by lodging an IELTS test report with the respondent after the date of visa application?
The Court held in a joint judgment that:
(i)In contrast to cl.885.214 and 885.215 which require the application to be accompanied by specified evidence, cl.885.213 can be satisfied by evidence provided to the Minister after application has been made.
(ii)The evident purpose of cl.885.213 is to ensure that when the visa application is decided the applicant will have demonstrated recent competency in the English language. The construction contented for by the plaintiff did not compromise such purpose. The Minister’s construction led to such plain unfairness and absurdity that it was not to be preferred.
(iii)The heading ‘Criteria to be satisfied at time of application’ may inform the construction of the criteria thereunder, but those criteria do not speak exclusively to satisfaction at the time of application.
This was a significant judgment that had implications for skilled visa cases where the issue under consideration is whether the applicant meets criteria, specified as ‘Criteria to be satisfied at time of application’, relating to English language proficiency. Essentially it meant that a criterion that “The applicant has competent English” or similar, even if specified in the Schedule 2 heading as a time of application criterion, could be met if the applicant sat a test after the date of application and provides evidence to the Minister or the Tribunal of a satisfactory test score.
However, the wording discussed in Berenguel’s case is different from the wording of cl.491.214, which specifically states in the body of that clause (not just in the heading) that ‘at the time of the invitation to apply for the visa… the relevant assessing body… had assessed the applicant’s skills as suitable for that occupation…’ This is far more specific than the wording considered in Berenguel, and the Tribunal finds that the reasoning in Berenguel is not applicable to this case.
In Waensila, the appellant did not hold a substantive visa at the time of his application. Therefore, he was required to satisfy criteria 3001, 3003 and 3004 in Schedule 3 to the Migration Regulations 1994 (the Regulations), unless the Minister was satisfied that there were compelling reasons for not applying those criteria: cl.820.211(2)(d)(ii). The appellant claimed a number of ‘compelling reasons’ for waiving the Schedule 3 requirements, several of which were circumstances not present at the time of the application. The Tribunal, having regard to Boakye-Danquah v MIMIA (2002) 116 FCR 557, found that the question of whether there are ‘compelling reasons’ for not applying the Schedule 3 criteria must be considered in relation to circumstances existing at the time of application. It concluded that there were no ‘compelling reasons’ for not applying the criteria.
The primary judge rejected the appellant’s contention that the Tribunal had incorrectly construed cl.820.211(2)(d)(ii) by failing to take into account matters which post-dated the lodgement of his application. The issue before the Full Court was whether the Tribunal made a jurisdictional error in excluding from its consideration of ‘compelling reasons’ events or circumstances which occurred after the visa application was made. The Minister contended, among other things, that the heading to cl.820.21 [‘criteria to be satisfied at time of application’] was an important indication of legislative intention.
The Court held that in deciding under cl.820.211 whether or not there were compelling reasons to not apply Schedule 3 criteria 3001, 3003 and 3004, the decision-maker was not confined to considering only ‘compelling reasons’ which existed at the time of application. Clause 820.211, read with the heading to cl.820.21, requires that the criteria must be satisfied at the time of the application. That does not determine that the power to dispense with the application of the Schedule 3 criteria is also limited to events which existed at that time. The purpose of that discretion is to give the Minister greater flexibility to respond to compelling circumstances such as hardship to the visa applicant.
The judgment confirmed that the Tribunal was able to consider circumstances that have arisen after the time of application when exercising the discretion to waive the Schedule 3 criteria. However, this again involves different wording and requirements to the wording and requirements set out in cl.491.214, and the cases are not analogous. The Tribunal finds that the reasoning in Waensila is not applicable to this case.
The Tribunal acknowledges that the applicant’s first skills assessment was only just over 3 years old at the date of the invitation to apply for the visa, and that had the applicant appreciated the significance of cl.491.214 earlier, he could have almost certainly obtained another skills assessment before the expiry of the invitation period on 26 July 2021 (as he was able to do on 13 September 2021 approximately 1 week after having applied for it). The Tribunal further acknowledges that the fact that the applicant was able to obtain 2 skills assessments at different points for his nominated occupation indicates that he was clearly qualified to carry out that occupation throughout the entire invitation period and beyond. However, the legislation does not confer on the Tribunal any discretion to waive or otherwise overlook the requirements of cl.491.214, even where there are arguably compelling or compassionate circumstances in a particular case.
The Tribunal therefore finds that the applicant does not satisfy cl.491.214 and it must affirm the decision under review to refuse to grant him a subclass 491 visa. The Tribunal must also affirm the decisions to refuse to grant subclass 491 visas to the second and third named applicants (the applicant’s wife and daughter) as it finds that they are unable to satisfy the secondary visa criteria in cl.491.311 requiring them to be members of the family unit of a person who holds a subclass 491 visa, and there is no evidence that they meet the primary visa criteria in their own right.
The Tribunal acknowledges that the applicants have elected not to request the Tribunal to refer their case for Ministerial intervention pursuant to s.351 of the Act, but notes that it remains open to them to make such a request directly if they wish to do so in future.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.
Alison Mercer
Member