Kaja (Migration)

[2023] AATA 1531

Kaja (Migration) [2023] AATA 1531 (14 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harish Chowdary Kaja
Mrs Sree Kavya Kantamani

CASE NUMBER:  1923900

HOME AFFAIRS REFERENCE(S):          BCC2018/989665

MEMBER:Alison Mercer

DATE:14 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first named applicant a Class RN Regional Employer Nomination subclass 187  visa.

The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

Statement made on 14 April 2023 at 10:33am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – member of the family – primary visa applicant – subject of an approved nomination – jurisdictional issue – outside the migration zone at time of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of decisions of a delegate of the Minister for Home Affairs, dated 9 August 2019, to refuse to grant the applicants Class RN Regional Employer Nomination (Permanent) subclass 187 visas under s 65 of the Migration Act 1958 (Cth) (the Act). These decisions are potentially reviewable under s 338(2) of the Act.

2. The applicants made their applications for Class RN subclass 187 visas in the Direct Entry stream on 1 March 2018. The second named applicant was the primary visa applicant, and was nominated for the visa by her Australian employer, Sales Connect Pty Ltd. The first named applicant was included in the application as a member of the family unit of the second named applicant (her spouse).

3. The Department officer (the delegate) who assessed the visa applications found that the second named applicant did not meet the primary visa criterion in cl.187.233 as she was not the subject of an approved nomination by Sales Connect Pty Ltd. The delegate found that the second named applicant did not meet the primary visa criteria for a subclass 187 visa in the Direct Entry stream and had not made claims against any other stream. The delegate also refused to grant the first named applicant a subclass 187 visa as he did not meet the secondary visa criteria in cl.187.311 to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that he met the primary visa criteria in his own right.

4. The review application was lodged with the Tribunal on 27 August 2019. For the following reasons, the Tribunal has no jurisdiction to review the decision in relation to the second named applicant as her review application was not made in accordance with the relevant legislation.

5. 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), 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 (3). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

6. The Department’s movement records show that the second named applicant was outside the migration zone (Australia) at the time that the visa application was made, at the time that the delegate’s decision was made, and at the time that the review application was lodged with the Tribunal.

7. On 14 March 2022, the Tribunal wrote to the first named applicant to invite him to attend a telephone hearing on 13 April 2023.

8. On 22 March 2022, the Tribunal wrote again to the first named applicant, as follows:

   …

   Jurisdictional issue affecting Ms Kantamani

   The Presiding Member has formed a view that the Tribunal does not have jurisdiction to review the Department of Home Affairs’ decision to refuse to grant Ms Kantamani a Class RN subclass 187 (Regional Employer Nomination) visa in the Direct Entry stream.

   This is because the Department’s records indicate that Ms Kantamani was outside the migration zone (Australia) at the time that the subclass 187 visa application was made on 1 March 2018, at the time that the Department refusal decision was made on 9 August 2019, and at the time that the review application was made to the Tribunal on 22 August 2019. As noted in the Department notification letter of 22 August 2019, she could only apply for review of the refusal decision if she was in the migration zone (Australia) on the date of the Department’s refusal decision and on the date that the review application was lodged with the Tribunal, for the reasons set out below.

   Section 347(2) of the Migration Act 1958 (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 an onshore application for a subclass 187 visa), 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 (3). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories. Ms Kantamani does not meet this requirement.

   Alternatively, given Ms Kantamani lodged her subclass 187 visa while she was outside the migration zone (Australia), it appears that the decision to refuse her the visa may be reviewable under s.338(7A) of the Act. In this case, for a review application to be validly made, the applicant must be physically present in the migration zone at the time when the decision was made, and be physically present in the migration zone when the application for review is made: s.347(3A). Ms Kantamani does not meet this requirement.

   Accordingly, it is the view of the Presiding Member that the Tribunal does not have jurisdiction to review the decision by the Department to refuse to grant Ms Kantamani a subclass 187 visa as her review application was not validly made.

   The Tribunal acknowledges that an initial acknowledgement letter was sent at the time that the review application was lodged, but notes that this letter states that this is subject to the Tribunal’s more detailed assessment of whether it was validly lodged.

   If you wish to provide comments or a response to this information, you are requested to do so by 5 April 2023.

   Adverse information relating to Mr Kaja

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   It appears that the Tribunal does have jurisdiction to review the decision to refuse to grant a subclass 187 visa to Mr Kaja, as he was in the migration zone on the date that the visa application was lodged, the date of the Department refusal decision, and the date that the review application was lodged with the Tribunal.

   However, for the reasons set out above, the Tribunal considers that it has no jurisdiction to review the refusal to grant Ms Kantamani a subclass 187 visa. As Ms Kantamani is the primary visa applicant, this has implications for Mr Kaja’s ability to meet the visa criteria for a subclass 187 visa.

   If Ms Kantamani cannot be granted a subclass 187 visa, as the Tribunal cannot review or alter the Department’s decision to refuse to grant her a subclass 187 visa, then it will have to find that Mr Kaja cannot meet the secondary visa criteria in cl.187.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) requiring him to be a family unit member of a person who holds a subclass 187 visa. Nor is there any evidence to suggest that he can meet the primary criteria for a subclass 187 visa.

   If the Tribunal takes this view, then this would be the reason (or part of the reason) to affirm the decision to refuse to grant him a subclass 187 visa.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 5 April 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 5 April 2023, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 5 April 2023 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   Consequences of not responding

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

   Please note, the hearing scheduled for 13 April 2023 will be cancelled if we do not receive a response or a request for an extension of time, by the due date.

   …

9. The Tribunal did not receive a response or comments from the first named applicant by 5 April 2023. Nor did it receive a request for an extension of time to do so.

10. The Tribunal is satisfied that its letter of 22 March 2023 was sent to the email address nominated for correspondence by the first named applicant in the review application. There is no indication from the Tribunal’s electronic records that it was undelivered or undeliverable.

11. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the first named applicant provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the first named applicant has lost his entitlement to have a hearing: s.360(3).

12. On 5 April 2023, the Tribunal wrote to the first named applicant to advise him that he had lost his entitlement to a hearing but inviting him to provide any further information he wished to have considered by 13 April 2023.

13. The Tribunal did not receive any further information by 13 April 2023 and has received no further communication from the first named applicant to date.

14. The Tribunal has considered whether to make any further request for comments or a response from the first named applicant, but – in view of the lack of response by the due date, the confined nature of the criterion in dispute, and the fact that the applicant was given until 13 April 2023 to provide any additional information - the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers that it is reasonable to do so in the circumstances of the case, and having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

15. The Tribunal finds that the second named applicant was not in the migration zone at the relevant time. As such, the application for review in relation to her is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.

16. The Tribunal finds that the first named applicant does not meet the secondary visa criteria in cl.187.311 requiring him to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that he meets the primary visa criteria in his own right.

17. The Tribunal therefore affirms the decision to refuse to grant him a Class RN Regional Employer Nomination subclass 187 visa.

    DECISION

18. The Tribunal affirms the decision to refuse to grant the first named applicant a Class RN Regional Employer Nomination subclass 187 visa.

19. The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

    Alison Mercer
    Member