Kalalo (Migration)

[2020] AATA 5917

Kalalo (Migration) [2020] AATA 5917 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maggie May Kalalo
Mr Brian Kalalo

CASE NUMBER:  1837036

HOME AFFAIRS REFERENCE(S):          BCC2018/3664902

MEMBER:Jennifer Cripps Watts

DATE:13 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 13 November 2020 at 3:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant had previously been granted a Subclass 476 visa –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.211

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 (the delegate) on 10 December 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 September 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the primary applicant (the applicant) did not satisfy cl.485.211 of Schedule 2 to the Regulations because the applicant had previously been granted a Subclass 476 visa which meant she did not meet the cl.485.211(b) requirement. The second-named visa applicant had his visa refused because, as the applicant did not meet the primary criteria, he did not meet the secondary criteria.

4. On 18 December 2018, the applicants applied for review and provided the Tribunal with a copy of the delegate’s decision.

5. The applicants’ case was considered by the Tribunal to be appropriate for a phone hearing, in circumstances where courts and tribunals in Australia are mindful of limiting the spread of the COVID-19 virus.  The applicants appeared by phone before the Tribunal on 13 November 2020 to give evidence and present arguments.  The applicants did not request an interpreter and the Tribunal is satisfied that one was not required; they both spoke exceptionally good English.  The Tribunal is satisfied that all participants could be heard and understood clearly during the scheduled hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case, in summary, is whether the applicant has previously been the primary visa holder of a Subclass 485 or 476 visa.

   485.211

   The applicant:

   (a) has not previously held a Subclass 476 (Skilled - Recognised Graduate) visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa; and
   (b) has not previously held a Subclass 485 visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.

8. Departmental  records indicate that the applicant previously lodged a Post-Study Work Stream (VC 485) visa application on 23 September 2014 and that this visa was granted on 10 November 2014, for two years, on the basis that you satisfied the primary criteria for the grant of the visa.  At the Tribunal hearing, the applicants were reminded of this and confirmed that they are not disputing that the applicant was previously the primary visa holder of a Subclass 485 visa. 

9. For this reason, the applicant does not meet cl.485.211(b).

10. Therefore the applicant does not satisfy cl.485.211 of Schedule 2 to the Regulations.

11. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    Secondary Applicant

12. The Tribunal has affirmed the decision to refuse the applicant’s visa.  The secondary criteria cannot be met by the secondary applicant, as there is no evidence before the Tribunal that he is a member of the family unit of a person who has met the primary criteria and holds a Subclass 485 visa.  For this reason, the decision to refuse the secondary applicant’s visa is also affirmed.

    Other matters

13. The Subclass 485 visas that are the subject of this review were refused in December 2018.  The applicants gave oral evidence, and the Tribunal confirmed the information by referring to Department records during the hearing, that on 24 July 2019 Mr Brian Kalalo, on the basis of an invitation from the state of South Australia, lodged an offshore application for a Subclass 489 visa; the applicant, Maggie May Kalalo, is included in the application as a secondary applicant.  Department records indicate that, on 28 July 2019, Mr Kalalo passed the points assessment for the Subclass 489 visa, but that the application appears not to have progressed since then. 

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Jennifer Cripps Watts
    Member