Jia (Migration)

[2022] AATA 3606

Jia (Migration) [2022] AATA 3606 (17 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jinghua Jia
Mr Guoxing Feng

REPRESENTATIVE:  Ms Jia Hong Zou

CASE NUMBER:  2114314

HOME AFFAIRS REFERENCE(S):          BCC2018/5816760

MEMBER:Alison Mercer

DATE:17 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal has no jurisdiction in relation to the first named applicant.

The Tribunal affirms the decision not to grant a Class EA Business Skills - Business Talent (Permanent) subclass 132 visa to the second named applicant.

Statement made on 17 October 2022 at 5:20pm

CATCHWORDS

MIGRATION – Business Skills – Business Talent (Permanent) (Class EA) visa – Subclass 132 (Business Talent) – first applicant’s visa refused because of second applicant’s involvement in unacceptable business practices – first applicant outside migration zone when review application made – COVID-related travel restrictions – concessional arrangements for certain classes of visa holder – no discretion to waive requirement – no jurisdiction for first applicant – not open to refer for ministerial consideration because no substantive decision made – second applicant not a family of a person who holds visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347(2)(a), (3), 351, 359A

Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 132.211, 132.311, 888.242(2A)

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 Home Affairs on 7 October 2021 to refuse to grant the applicants Class EA Business Skills - Business Talent (Permanent) subclass 132 visas in the Significant Business History stream under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 25 December 2018. The delegate refused to grant the visas on the basis that cl.132.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met by the first named applicant. This clause required that neither the primary applicant nor their spouse has a history of being involved in ‘unacceptable business practices;’ however, the delegate found that there was evidence indicating that the second named applicant (the first named applicant’s spouse) had been involved in a property company in China that had been implicated in illegal property demolition, forced relocations, tax evasion, collusive auctions, and construction without the required permits. Although these allegations were denied by the applicants, the delegate preferred the evidence from Chinese court records indicating that at least some of these offences had occurred. The delegate also placed weight on the fact that although the second named applicant was invited to provide a Chinese police clearance to the Department, he did not do so. The delegate therefore found that the first named applicant did not meet cl.132.211 and could not be granted a subclass 132 visa. The delegate further found that the second named applicant could not be granted a subclass 132 visa either, as he did not meet the secondary visa criteria in his own right and there was no evidence to indicate that he met the primary visa criteria in his own right.

3. The Tribunal received a review application from the applicants on 15 October 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Jia Hong Zou, as their representative and authorised recipient for correspondence.

4. On 4 November 2021, the Tribunal wrote to the applicants via their agent to advise that it appeared that the Tribunal did not have jurisdiction to review the decision to refuse to grant the first named applicant a subclass 132 visa, as she was outside the migration zone (Australia) on the date that the review application was made, and therefore did not meet s.347(3) of the Act. The applicants were requested to respond or comment on this issue, if they wished to do so, by 18 November 2011.

5. The Tribunal did not receive a response from the applicants.

6. On 28 July 2022, the Tribunal wrote again to the second named applicant via the agent, pursuant to s.359A of the Act, to invite him to comment on or respond to information held by the Tribunal that was potentially adverse to his case. Specifically, the Tribunal advised that its check of the Department’s Integrated Client Services Environment (ICSE) records on 25 July 2022 indicated that the first named applicant did not hold a subclass 132 visa, and that this information was relevant because if the Tribunal found this, then it would have to find that the second named applicant did not meet cl.132.211, which required that he was a member of the family unit of a person who held a subclass 132 visa. The second named applicant was requested to provide any comments or response by 11 August 2022, and the Tribunal advised that if it did not receive a response or comments (or a request for an extension of time to provide them) by that date, the second named applicant would lose his entitlement to a hearing and the Tribunal might proceed to make its decision on the available evidence.

7. On 8 August 2022, the applicants requested an extension of time to respond, and the Tribunal granted this to 25 August 2022.

8. On 25 August 2022, the Tribunal received a response from the applicants’ agent, which consisted of:

   ·agent’s submissions;

   ·previous submissions to the Department; and

   ·correspondence between the first named applicant and the Department regarding prior visitor visa refusals.

9. The agent made the following submissions:

   …

   We refer to your invitation to comment dated 28 July 2022 and submit following information in support of the appeals application:

   1.The application for the subclass 132 visa was lodged on 25 December 2018 and was refused on 7 October 2021.

   2.At the time of the refusal, the primary applicant, Ms Jia was unable to enter Australia due border closure and travel restriction policies in place.

   3.Since the beginning of covid outbreak in March 2020, the Australia government began to impose extreme restrictions on all incoming temporary visa holders. Visitor visa holders need to apply for travel exemption to enter Australia, the policy at the time was very tight and visitor are only allowed into Australia in very limited situation.

   4.Therefore, because that the primary applicant Ms Jia was holding a visitor visa subclass 600 granted to her on 14 September 2018, with expiry date on 14 September 2021, she was unable to make any travel plan to Australia at the time.

   5.The above circumstances are the compelling reasons why Ms Jia was not in Australia at the time of lodging the appeal application to the Administrative Appeals Tribunal.

   6.The compelling circumstances was out of Ms Jia’s control, as it was the emergency government response to reduce the impact and spread of coronavirus.

   7.After two years of border closure, the travel restriction was finally lifted by the Australian government. Ms Jia applied for another visitor visa on 10 January 2022 because she has been separated from her husband Mr Feng for over two years. Ms Jia intends to travel to Australia to resolve some family issues.

   8.Unfortunately, Ms Jia’s visitor visa was refused on 28 July 2022. A copy of the refusal letter are attached for your record.

   9.Further, Mr Feng has been in Australia for the past two years and was in Australia at the time of the refusal.

   10.Therefore, due to the unforeseeable covid outbreak and policy restrictions imposed by the Australian government on incoming visitors, Mr Feng and Ms Jia has no other option than to lodge the appeal application with the Administrative Appeals Tribunal while Mr Feng was still in Australia.

   We submit the above information as response to your letter. And we also attached a copy of submission to the Department on 30 June 2021 in support of our client’s AAT appeal application.

   …

10. On 30 August 2022, the Tribunal wrote to the second named applicant via the agent to invite him to attend a hearing to be conducted by videoconference on 21 September 2022. The Tribunal advised that it did not consider that it had jurisdiction to review the decision to refuse the first named applicant a subclass 132 visa as she was outside the migration zone when the Tribunal review application was lodged on 15 October 2021 (regardless of whether this was for reasons outside her control); however, the Tribunal did have jurisdiction to review the decision to refuse the second named applicant a subclass 132 visa. The second named applicant and his agent were requested to provide any material in support of his case by 14 September 2022.

11. The second named applicant appeared before the Tribunal by videoconference on 21 September 2022. The Tribunal also received oral submissions from the applicants’ agent, who also attended by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The Tribunal discussed with the second named applicant and his agent its view that it did not have jurisdiction to review the decision to refuse to grant the first named applicant a subclass 132 visa, for the reasons set out in its earlier letter to the applicants. It noted this meant that it was effectively unable to review or set aside the reasoning used by the delegate in finding that the first named applicant did not meet cl.132.211 due to the second named applicant’s business activities in China, as that criterion was a criterion that only applied to the primary visa applicant, the first named applicant.

13. The applicant’s agent submitted that the Tribunal may in fact have jurisdiction to review the decision to review the first named applicant a subclass 132 visa due to recent legislative amendments showing that the Australian parliament had an intention to assist visa applicants whose applications had been affected by COVID19-related travel restrictions. The Tribunal noted that while some amendments had been made in certain visa categories for tis reason, it was unaware of any amendment to s.347(3) of the Act, the section that required the first applicant to have been in the migration zone (Australia) at the time that the review application was lodged in order for that review application to be valid in relation to her. However, it agreed to review any submissions made to this effect, and agreed to defer its decision until 5 October 2022 for these to be provided. The Tribunal indicated that if it found that it did have jurisdiction in respect of the first named applicant, it would schedule a new hearing, but if it did not consider that it had jurisdiction in relation to her, it would write to advise the applicants of its view before proceeding to a final decision on the second named applicant’s review application.

14. On 5 October 2022, the Tribunal received the following additional submissions from the applicants’ agent:

    …

    We wish to thank the Member for her professionalism and patience to the secondary appellant Mr. Guoxing FENG on 21 September 2022.

    We understand the Member’s concern on limitation conferred by s347(f3) of the Migration Act 1958.

    We attached a copy of Schedule 2 provisions with respect to the grant of subclasses of visas, and concessions given to certain classes of visa holders, due to the COVID ‘Concession period’.

    WE wish to ask the member to infer from the this special provision, the intention of the Parliament for business and investor visa holders and applicants alike. I wish to draw the Member’s attention to ss(2A) (a) and (b), in which it provides that ‘the applicant is taken to have been in Australia during a period, if (a) the applicant was outside Australia during a concession period.

    We wish that the Member to take into our argument that even though Ms Jia was outside Australia during a Covid Concession Period, at the lodgement time of the AAT application on 15 October 2021, the applicant Ms Jia should be taken to have been in Australia on 15 October 2021, for the purpose of s347(3) purpose.

    WE accept the fact that the Parliament did not pass new regulations for the purpose of s347(3), however we wish to argue that the Member is in a position to refer this application for the Minster Intervention, to set a caselaw, for the advancement of s347(3) the Migration Act 1958.

    …

15. The attached document is headed ‘888.24 Criteria for Significant Investor stream,’ and sets out the current criteria for the subclass 888 visa category, including cl.888.242(2A) which sets out Australian residence requirements for this visa subclass, including reference to ‘concessional periods.’

16. On 6 October 2022, the Tribunal sent the following by email to the applicants via their agent:

    …

    The Presiding Member acknowledges receipt of your post hearing submissions on 5 October 2022.

    Having reviewed them, she remains of the view that the Tribunal has no jurisdiction in respect of Ms Jia, as the amendments referred to do not affect s.347(3) of the Act. The Presiding Member therefore does not intend to hold a hearing to consider the substantive issues in Ms Jia's case but will now proceed to make its decision on Mr Feng's subclass 132 visa application.

    The Presiding Member will also consider your request that she refer this matter for Ministerial intervention.

    …

17. For the following reasons, the Tribunal has concluded that it has no jurisdiction in relation to the first named applicant and that the decision under review in relation to the second named applicant should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

18. The issue in the present case is whether the Tribunal has jurisdiction to review the decision to refuse the first named applicant a subclass 132 visa, and whether the second named applicant meets the substantive criteria for a subclass 132 visa.

    Jurisdiction in relation to the first named applicant

19. 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), which includes the decision to refuse a subclass 132 visa application made onshore, an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and, generally speaking, means the Australian States and Territories.

20. As noted above, the Department’s records indicate that on the date that the review application was made on 15 October 2021, the first named applicant was not in Australia. The applicants have not disputed this. They have also set out the reasons for this, and have argued that the fact that the first named applicant was not in the migration zone on 15 October 2021 is due to the fact that her previous visitor visa for Australia had expired, and she had been refused a subsequent visa to return due to the travel restrictions imposed by Australian on non-citizens and non-permanent residents arising from the COVID19 pandemic.

21. The Tribunal acknowledges these difficult circumstances but notes that there is no discretion in s.347(2)(a) to take into account such factors (even those that might be beyond an applicant’s control and/or that involve compassionate circumstances) to waive the requirement in that subclause for the review applicant to be in the migration zone on the date that the review application is lodged. As noted above, the Tribunal has considered the applicants’ agent’s submissions on this issue, in particular her reference to the fact that the Australian government had made some concessional arrangements for visa applicants affected by COVID19-related travel restrictions. However, the concessional arrangements cited by the agent apply to subclass 888 visa applicants, not to subclass 132 visa applicants, as in this case. Nor did the Australian government see fit to amend s.347(3) of the Act to relax or amend its requirements that an applicant for review in the circumstances of the applicant must have been in the migration zone at the time of lodgement of their review application. The Tribunal is unable to imply such a reading where there has been no legislative amendment to either the subclass 132 criteria or s.347(3) of the Act.

22. The Tribunal must therefore find that it does not have jurisdiction to review the Department’s decision to refuse to grant the second named applicant a Class EA Business Skills - Business Talent (Permanent) subclass 132 visa as she was not in the migration zone on 15 October 2021 and therefore does not satisfy s.347(2)(a) to have made a valid application for review.

    Whether the second named applicant meets the substantive criteria for a subclass 132 visa

23. Clause 132.311 provides the following must be met at the time of decision:

    132.311 

    The applicant:

    (a)  is a member of the family unit of a person who holds a Subclass 132 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)  made a combined application with that person. 

24. The Tribunal is satisfied that the second named applicant is the spouse of the first named applicant, as evidence of their legal marriage was provided to the Department, and was not disputed. Nor is it disputed that a spouse is a member of a primary applicant’s family unit, as defined in r.1.12 of the Regulations.

25. However, as noted above, there is no evidence that the first named applicant holds a subclass 132 visa, and therefore, the Tribunal finds that the second named applicant does not meet cl.132.311 and cannot be granted a subclass 132 visa.

    Ministerial intervention

26. The Tribunal acknowledges the applicants’ agent’s request that this matter be referred for Ministerial intervention. The Tribunal notes that s.351 of the Act confers on the Minister for Immigration a personal and non-compellable power to intervene to grant an applicant a visa in the event of an unsuccessful outcome at the Tribunal. The guidelines for doing so are set out on the Department’s website: Ministerial intervention (homeaffairs.gov.au).

27. However, the Minister may only use his or her powers to substitute a decision that is more favourable to an applicant where the Tribunal has first made a substantive decision on the merits of the review. A finding by the Tribunal that it lacks jurisdiction to conduct a review is not a substantive decision on the merits and therefore does not engage the Minister’s powers under ss 351, 417 and 501J of the Migration Act.[1]

    [1] In relation to the Minister’s powers under ss 351 and 417, the Minister may substitute a decision of the Tribunal made under ss 349 and 415. A finding that the Tribunal lacks jurisdiction is not a decision under ss 349 or 415.

28. Accordingly, it is not open to the Tribunal to refer the issue of the first named applicant’s inability to meet s.347(3) of the Act, resulting in its finding that her review application was invalidly made, to the Minister pursuant to s.351 of the Act for consideration of Ministerial intervention.

29. It is open to the second named applicant to make a request pursuant to s.351 of the Act if he believes there are unique or exceptional cases in his case which would warrant Ministerial intervention.

    decision

30. The Tribunal has no jurisdiction in relation to the first named applicant.

31. The Tribunal affirms the decision not to grant a Class EA Business Skills - Business Talent (Permanent) subclass 132 visa to the second named applicant.

    Alison Mercer
    Member