HOSSEINIANJEDANI (Migration)

[2019] AATA 3511

HOSSEINIANJEDANI (Migration) [2019] AATA 3511 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Seyedahmadreza HOSSEINIANJEDANI
Mr Seyedmohammad HOSSEINIANJEDANI
Mrs Maryam Noroozi

CASE NUMBER:  1903252

DIBP REFERENCE(S):  BCC2018/189442 BCC2019/1556139

MEMBER:Karen McNamara

DATE:17 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the review applicant a Business Skills (Provisional) Subclass 188 visa.

The Tribunal does not have jurisdiction in this matter in relation to the second and third named applicants.

Statement made on 17 June 2019 at 12:30pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) – Subclass 188 Business Innovation and Investment (Provisional) – eligibility for review – main applicant off shore – must be within migration zone – no jurisdiction for second and third named applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), cls 186.222, 186.311

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 22 January 2019 to refuse to grant the applicants a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants being a couple and their son, applied for the visa on 12 January 2018. The delegate refused to grant the visa on the basis that cl.188.222 was not satisfied in respect of the primary applicant, Mr Seyedmohammad Hosseinianjedani.  The review applicant (the son) Mr Seyedahmadreza Hosseinianjedani’s visa was refused on the basis that he did not satisfy cl.188.311.

3. A review was sought by Mr Seyedahmadreza Hosseinianjedani, who as a member of the family unit of the primary applicant was the only visa applicant with standing to seek a review under s.347 of the Act. On the review application lodged with the Tribunal on 12 February 2019, Mr Seyedahmadreza Hosseinianjedani is named as the first applicant with Mr Seyedmohammad Hosseinianjedani named as the second applicant and Mrs Maryam Noroozi as the third applicant.         

4. Mr Seyedahmadreza Hosseinianjedani appeared before the Tribunal on 13 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing. The second and third named applicants did not attend the hearing.

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

   BACKGROUND

7. The review applicant is a 23 year old citizen of the Islamic Republic of Iran. The review applicant’s father, Mr Seyedmohammad Hosseinianjedani (the father) was the applicant in an application for a Subclass 188 visa under the Business Innovation stream.  The review applicant and his mother were secondary applicants.

8. Where appropriate below, I have referred to the review applicant as the applicant and the second and third named review applicants simply as the applicant’s father and mother so as not to be confused with the review applicant in these proceedings.

9. The applicant came to Australia as a student. The applicant is currently residing in Dundas Valley NSW.

10. The subclass 188 visa application (the primary application) proposed the father had in excess of AUD $2,250,000 financial assets in the 2 fiscal years prior to invitation.

11. The Department refused the father’s Subclass 188 visa application for reason that the delegate found the father’s net value of assets were evidenced as less than AUD $800,000 in each of the 2 fiscal years immediately before the time of invitation to apply for the visa. As a consequence the delegate found that the father’s score against Schedule 7A points test was 40 points. As this fell short of the requisite 65 points, the delegate was not satisfied that the father met cl.188.222.

12. In the circumstances, the delegate found that the secondary applicants (the applicant and the mother) did not meet cl.188.311 as the applicants are not a member of the family unit of person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant was secondary applicant as set out above in the father’s primary application made on 12 January 2018.

14. The Department refused the fathers application in that matter on 22 January 2019.

15. The delegate found that cl.188.311 was not met in respect of the applicant and the mother.

16. The applicant’s father and mother being off-shore, did not have jurisdiction to seek review of the decision. The applicant however, currently in Australia and living in Dundas Valley NSW has sought review and is eligible to do so.  The applicant however cannot take on the role as the appellant on behalf of his father and vicariously appeal the delegate’s decision, so as to have the Tribunal set aside the decision against the father. That decision remains unchallenged and thus the basis for setting aside the decision against the applicant that he can satisfy the family criterion in cl.188.311 as a member of the family of a person who holds the 188 visa, cannot succeed.

17. At the hearing the applicant was told on numerous occasions that he could not appeal his father’s application on behalf of his father and that the Tribunal had no jurisdiction in regard to his father or his mother.  The applicant was told that the issue before the Tribunal was in regard to whether the applicant met the criteria of cl.188.311.

18. The applicant told the Tribunal that he wished to put right what he believed had been ignored by the delegate. The Tribunal afforded him the opportunity to present a submission but reinforced that the matter before the Tribunal was in regard to the delegate’s refusal to grant the applicant a 188 visa on the grounds that he did not satisfy the criterion in cl.188.311, that being the applicant is a member of family unit of a person who holds a subclass 188 visa.

19. The applicant presented an extensive submission to the Tribunal. In summary the applicant told the Tribunal that the delegate had not familiarised themselves with the system of property valuation undertaken in Iran. The applicant told the Tribunal that in Iran the law provides that only 2% of the total value of the property is required to be recorded on the Title Deeds. The applicant provided a thorough submission on what he believed the correct valuation of the father’s property holdings is worth and his belief that the delegate erred in not accepting the market value information provided by the father at the time of application.

20. Whilst the Tribunal afforded the applicant an opportunity to present his submission in regard to the valuation of the property holdings, the Tribunal notes the father as the primary applicant for the Subclass 188 visa was refused the visa and that decision was not the subject of review.

21. As the applicant himself has not sought to meet the primary requirements for the 188 visa, he can only be considered on review on the basis of being a member of the family unit pursuant to cl.188.311, where the father is the holder of a Subclass 188 visa.

22. The Tribunal finds that the applicant in these proceedings does not meet cl.188.311 and is not a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

23. In those circumstances, the Tribunal must affirm the decision not to grant the visa.

    Jurisdiction in relation to the third named applicant

24. 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.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

25. Department records indicate the second named review applicant Mr Seyedmohammad Hosseinianjedani and the third named review applicant Mrs Maryam Noroozi were off shore at the time the visa application was lodged on 12 January 2018 and at the time the application for review was lodged on 12 February 2019 . In the circumstances, the Tribunal finds that Mr Seyedmohammad Hosseinianjedani and Mrs Maryam Noroozi were not in the migration zone at the relevant time. 

26. As such the applications for review made by Mr Seyedmohammad Hosseinianjedani and Mrs Maryam Noroozi do not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to them.

    DECISION

27. The Tribunal affirms the decision not to grant the review applicant a Business Skills (Provisional) Subclass 188 visa.

28. The Tribunal does not have jurisdiction in this matter in relation to the second and third named applicants.

    Karen McNamara
    Member