KARAPPILLY RAVI (Migration)

[2019] AATA 3295

KARAPPILLY RAVI (Migration) [2019] AATA 3295 (19 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arun KARAPPILLY RAVI
Mrs ANJUMOL KIZHAKKEYIL JAYAPRAKASH

CASE NUMBER:  1713321

DIBP REFERENCE(S):  BCC2016/3685263

MEMBER:Kate Millar

DATE:19 July 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the second named applicant’s application for a Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 457 visa:

·PIC 4021 for the purposes of cl.457.325.

STATEMENT MADE ON 19 JULY 2019 AT 1:31PM

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) – jurisdiction – error in review application – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 457.223(4)(a), 457.325, Public Interest Criterion (PIC) 4021

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 8 June 2017 to refuse to grant the second named applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Jayaprakash is a secondary applicant for a subclass 457 visa. A decision was made in regard to Mr Arun Karappilly Ravi on 2 July 2019. After this decision was made, it was brought to the Tribunal’s attention that Mr Karappilly Ravi intended to apply for a review of the decision in respect of his wife, Mrs Jayaprakash.

3. For the reasons given below, the Tribunal has concluded it has jurisdiction in relation to the decision made in respect of Mrs Jayaprakash, and a decision has not been made on this application, this is the decision as it relates to Mrs Jayaprakash.  It should be read in conjunction with the decision that was made on Mr Arun Karappilly Ravi’s visa application. 

4. Mrs Jayaprakash applied for the visa on 4 October 2016. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 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.

5. The delegate refused to grant the visa on the basis that the Mr Karappilly Ravi did not meet cl.457.223(4)(a) because the nomination in respect of his position has not been approved. On 2 July 2019, the Tribunal set aside this decision and remitted the matter for reconsideration on the basis that the he met cl.457.223(4)(a) of the Schedule 2 of the Regulations.

6. For the following reasons, the Tribunal has concluded that the decision in relation to Mrs Jayaprakash should be also remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the Tribunal has jurisdiction in relation to Mrs Jayaprakash, and if so the decision in relation to her visa application.

8. Mrs Jayaprakash was not named on the application to review the decision. The migration agent submitted, and the Tribunal accepts, this was an error, and that it was intended that he application for review includes Mrs Jayaprakash.  Mrs Jayaprakash and Mr Karappilly Ravi also have a newborn child.

9. Mrs Jayaprakash may make a combined application for review with Mr Karappilly Ravi (r.4.12).In issue is whether Mrs Jayaprakash in fact made a combined application for review with Mr Karappilly Ravi. 

10. Mrs Jayaprakash was not named on the application for review, however the decision record that accompanied the application for review names both Mr Karappilly Ravi and Mrs Jayaprakash.  The migration agent confirmed in writing that it was her error that led to Mrs Jayaprakash not being named on the application for review.  The Tribunal accepts that it was intended for Mrs Jayaprakash to be included as an applicant, and this is supported by the decision record provided which names her in the decision. 

11. In the particular circumstances of this case, the Tribunal finds that a valid application for review was made by Mrs Jayaprakash, and the Tribunal has not yet discharged its obligation to review the decision in respect of her.

12. As Mr Karappilly Ravi’s visa application was remitted for reconsideration, and Mrs Jayaprakash is the secondary visa applicant, she may also meet the secondary criteria. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa

13. A permissible decision in relation to Mrs Jayaprakash is required for the purposes of remitting this matter for reconsideration.  A decision that can be made is a decision that she meets a specified criterion for the grant of the visa.  For the purpose of remitting this matter for reconsideration, I note a copy of her passport has been provided and find that for the purposes of meeting cl.457.325, she meets the requirement in PIC 4021 to hold a valid passport.

    DECISION

14. The Tribunal remits the second named visa applicant’s application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that she meets the following criteria for a Subclass 457 visa:

    ·PIC 4021 for the purposes of cl.457.315 of Schedule 2 to the Regulations.

    Kate Millar
    Senior Member