grewal (Migration)

[2018] AATA 2064

grewal (Migration) [2018] AATA 2064 (24 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manjit Kaur Grewal
Mr Navtej Singh
Mr Mehtab Singh Mander

CASE NUMBER:  1804574

DIBP REFERENCE(S):  BCC2017/4161754

MEMBER:Katie Malyon

DATE:24 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter in relation to the first named applicant and the third named applicant.

The Tribunal affirms the decision not to grant the second named applicant a Regional Employer Nomination (Permanent) 187 visa. 

Statement made on 24 April 2018 at 12:24 pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry Nomination stream – The first and third named applicants not in Australia at the relevant time – No jurisdiction to review the decision in relation to the first and third named applicants – Not a member of the family unit of a person who holds a Subclass 187 visa – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 338,347, 359A, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233, 187.311, Schedule 1

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 1 February 2018, to refuse to grant Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The delegate refused the application because the primary visa applicant, Mrs Manjit Kaur Grewal, did not meet relevant criteria for grant of the visa. Mrs Grewal is the first named applicant in this review application. This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 21 February 2018.  

   Jurisdiction in relation to the first named applicant and the third named applicant

3. For the following reasons, the Tribunal has no jurisdiction to review the decision in relation to the first named applicant and the third named applicant as the application was not made in accordance with the relevant legislation.

4. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act (emphasis added). The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means the Australian States and Territories.

5. Departmental records indicate that Mrs Grewal and her 5 year old son, Master Mehtab Singh Mander, were not in Australia on 21 February 2018 when the application for review was made.  The Tribunal formed a preliminary view that the application for review made by Mrs Grewal and Master Mander was not a valid application since they were not in Australia when the review application was lodged.  On 28 March 2018, the Tribunal wrote to Mrs Grewal and Master Mander inviting comments on the validity of their application for review.  

6. Mrs Grewal’s representative responded to the Tribunal’s letter on 10 April 2018 but did not address the issue of the validity of her application.  Subsequently, on 19 April 2018, the representative acknowledged that ‘the application is invalid’ and requested that the case be closed.  

   Consideration of evidence

7. The Department’s movement records show Mrs Grewal left Australia on 15 January 2018 and that she was not in Australia on 21 February 2018 when the application for review was lodged with the Tribunal.  Further, Departmental records show that Master Mander left Australia over 3 years ago on 26 February 2015 after a 2½ month visit but has not returned since then. 

8. In the circumstances, the Tribunal finds that Mrs Grewal and Master Mander were not in the migration zone at the relevant time. As such, the application for review made by Mrs Grewal and Master Mander is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in this matter in relation to them.

   Jurisdiction and consideration of evidence in relation to the second named applicant

9. When the delegate refused Mrs Grewal’s Subclass 187 visa application the delegate also refused the Subclass 187 visa application by her husband, the second named applicant Mr Navtej Singh.  Mr Singh’s application was refused by the delegate because he was not a member of the family unit of a person who holds a Subclass 187 visa.  When Mrs Grewal made her application for review to the Tribunal, she included her husband Mr Singh in the review application. 

10. Although the Tribunal has found that it has no jurisdiction in relation to review the delegate’s refusal of the Subclass 187 visa applications by Mrs Grewal and her son Master Mander because they were not in Australia at the time of making their application for review, Departmental records indicate that Mr Singh was in Australia as the holder of a Skilled (Provisional) Subclass 485 (Temporary Graduate) visa.  Accordingly, the Tribunal has jurisdiction in relation to his inclusion in Mrs Grewal’s review application.

11. As noted above, on 28 March 2018 the Tribunal wrote to the applicants pursuant to s.359A of the Act and invited comments or response to certain information which the Tribunal considers would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. In relation to Mr Singh, the Tribunal noted that he did not apply for a Subclass 187 visa on the basis of meeting primary criteria for the visa and, further, he was not identified in the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations at the time of lodging the visa application. In its letter, the Tribunal stated that this information is relevant because, if the Tribunal finds that Mr Singh is not a family member of a person who holds a Subclass 187 visa, the Tribunal would find that he does not meet cl.187.311 of Schedule 2 of the Regulations. The Tribunal also stated that the information is relevant because, if the Tribunal finds that Mr Singh was not identified in the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations, the Tribunal will find that he does not meet cl.187.233 of Schedule 2 of the Regulations. Finally, the Tribunal noted that, if it finds that Mr Singh does not meet the requirements for grant of a Subclass 187 visa, it will affirm the decision of the Department to refuse his application for the visa.

12. The invitation was sent to the applicants by letter dispatched to the email address provided in the application for review lodged with the Tribunal. The Tribunal advised that, if the information was not provided in writing by 11 April 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The applicants’ representative responded on 10 April 2018.  He advised that Mr Singh is a family member of Mrs Grewal and provided a copy of the couple’s Marriage Certificate.  The representative also opines that, as Mr Singh was included in the original Subclass 187 visa application, he meets the requirements for grant of a visa.  As noted above at para [6], the representative made no comments in relation to the validity of review application made by Mrs Grewal and Maser Mander, or how this might impact Mr Singh.

14. On 12 April 2018, the Tribunal wrote to the applicants advising it had considered all the material before it relating to the application for review but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 7 May 2018.  In this invitation, the applicants were asked to provide, by 30 April 2018, ‘any additional documents or information that you may

    wish to rely on during the hearing’.  Further, the applicants were relevantly advised:

    If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

15. As noted above, on 19 April 2018 the applicants’ representative contacted the Tribunal to advise that ‘we will not be attending the hearing on the 7^th May as the application is invalid’.  The representative also requested that the Tribunal to ‘please close this case’. 

16. In the circumstances, the Tribunal has proceeded to make a decision on the papers pursuant to s.360(2)(b) of the Act.

    Consideration of evidence

17. Based on documentation in the Department’s file, Mr Singh was included as secondary applicant on the basis of being a family member in respect of Mrs Grewal’s Subclass 187 visa application. Clause 187.311 of Schedule 2 to the Regulations requires that, as a secondary applicant, to be granted the visa Mr Singh must be a member of the family unit of a person who holds a Subclass 187 visa. As noted above, the Tribunal has no jurisdiction to consider the Department’s refusal of the Subclass 187 visa application made by Mrs Grewal and her young son since they were not in Australia at the time of lodgement of the review application with the Tribunal. Accordingly, the Tribunal finds that Mr Singh is not a member of the family unit of a person who holds a Subclass 187 visa. Therefore, the Tribunal finds that Mr Singh does not meet cl.187.311 of Schedule 2 of the Regulations.

18. Having reviewed documentation in the Department’s file, it is evident that Mr Singh did not make the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 to the Regulations at the time of lodging his Subclass 187 visa application as a secondary applicant: rather, it was his wife Mrs Grewal who made the declaration that the position to which the visa application relates is a position nominated in an application made under r.5.19 of the Regulations. Accordingly, the Tribunal finds that Mr Singh does not meet cl.187.233 of Schedule 2 to the Regulations.

19. No material has been submitted, or which is otherwise available to the Tribunal, that would support a conclusion that Mr Singh meets the requirements of cl.187.233 or cl.187.311 of Schedule 2 to the Regulations. In the circumstances, the Tribunal finds that Mr Singh does not meet the requirements for grant of a Subclass 187 visa. As the requirements that must be met by a person seeking the visa have not been met, the decision under review must be affirmed.

    DECISION

20. The Tribunal does not have jurisdiction in this matter in relation to first named applicant and the third named applicant.

21. The Tribunal affirms the decision not to grant the second named applicant a Regional Employer Nomination (Permanent) Subclass 187 visa.

    Katie Malyon

    
    Member