Keo (Migration)

[2023] AATA 244

Keo (Migration) [2023] AATA 244 (8 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Techhuy Keo
Mr Somet Keo
Mrs Sok Huoy Lim
Mr Techheng Keo

CASE NUMBER:  1928122

HOME AFFAIRS REFERENCE(S):          BCC2018/4043846

MEMBER:Alison Mercer

DATE:8 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in relation to the second, third and fourth applicants.

The Tribunal affirms the decision not to grant the first named applicant a Class EB (Business Skills – Provisional) subclass 188 Business Innovation and Investment Provisional visa.

Statement made on 8 February 2023 at 3:40pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – net business and personal assets – applicants outside migration zone at time of visa application – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347, 359, 363
Migration Regulations 1994, Schedule 2, cls 188.245, 188.311; r 1.12

CASES

Hasran v MIAC [2010] FCAFC 40
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 a decision of a delegate of the Minister for Home Affairs, dated 18 September 2019, to refuse to grant Business Skills (Provisional) visas to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 4 October 2019. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. 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.

4. On 24 January 2023, the Tribunal wrote to the first named applicant pursuant to s.359A of the Act, in the following terms:

   …

   In conducting its review, the Tribunal is required by the Migration Act 1958 to formally invite you to comment or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason (or part of the reason) for affirming the decisions under review.

   Please note, however, that the Tribunal has not made up its mind about the information.

   Background

   In the Department’s decision of 18 September 2019 to refuse you the visa, the delegate found that you did not meet cl.188.311 because you were not a member of the family unit of a person who held a subclass 188 visa or met the primary visa criteria for the grant of a subclass 188 visa. This was because the Department had refused to grant subclass 188 visas to your parents, Mr Somet Keo (the primary visa applicant) and Ms Sok Huoy Lim, and your younger brother, Master Techheng Keo, on 18 September 2019. The Department found that your father Mr Somet Keo did not meet cl.188.245 in relation to his net business and personal assets in the 2 fiscal years before he made the visa application. You, Ms Lim and Master Keo were refused visas because you and they did not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who held a subclass 188 visa, and there was no evidence that you or they met the primary visa criteria in their own right.

   The Department notification letter correctly identified that only you had the right to seek review with the Tribunal of the Department decision to refuse you a subclass 188 visa.

   The Tribunal’s records indicate that, subsequently, you and your family applied to the Tribunal for review of the decision to refuse to grant you subclass 188 visas on 4 October 2019.

   Your other family members do not have the right to seek review of the Department decisions to refuse them subclass 188 visas because they were outside migration zone at time of visa application and review application and therefore do not meet the requirements of ss.338(2) and 347(3) of the Migration Act 1958 (the Act). The Tribunal is of the view that, even though they were included in the review application to the Tribunal, the Tribunal does not have jurisdiction to review the Department decisions to refuse them subclass 188 visas.

   The Tribunal is writing to seek your comment about new, potentially adverse information that affects your case, as follows.

   Information

   The particulars of the information are that:

   ·    on 24 January 2023, the Tribunal accessed the Department’s electronic records, which indicate that Mr Keo, Ms Lim and Master Keo do not hold subclass 188 visas; and

   ·    accordingly, there is currently no member of your family unit who holds a subclass 188 visa, and the decision to refuse to grant subclass 188 visas to Mr Keo, Ms Lim and Master Keo cannot be reviewed by the Tribunal as it does not have jurisdiction in relation to their review applications.

   Relevance of the information

   This information is relevant to the review because, subject to your comments or response, it indicates that:

   ·you would not meet the requirement in cl.188.311 to be a member of the family unit of a person who holds a subclass 188 visa, and there is no evidence to indicate that you meet the primary visa criteria in your own right. This would be the reason (or part of the reason) for the Tribunal to affirm the decision under review in relation to you.

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

   Your comments or response should be received by 7 February 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 7 February 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 7 February 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.

   If you wish to withdraw your review application

   If your circumstances have changed and you no longer wish to continue with this review, please complete the enclosed withdrawal form and return it to us as soon as possible.

   ….

5. The Tribunal did not receive any comments or response from the first named applicant by 7 February 2023. Nor did it receive a request for an extension of time to so by him by that date.

6. The Tribunal is satisfied that its s.359A letter was sent to the correct email address nominated by the first named applicant for correspondence, and there is no indication from the Tribunal’s electronic records that its emails was not delivered or was undeliverable.

7. The first named applicant has not provided comments or a response within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C applies and pursuant to s.360(3) of the Act, the first named applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has considered whether to defer its decision for a further period, but – in view of the fact that the Tribunal sent the applicant a s.359A letter about the central issue of the case and the confined nature of that issue  – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

9. For the following reasons, the Tribunal has concluded that decision under review should be affirmed in relation to the first named applicant, and that it has no jurisdiction to review the decisions to refuse the second, third and fourth named applicants subclass 188 visas.

   Jurisdiction

10. As noted above, the Department’s movement records show that the second, third and fourth named applicants were outside the migration zone (Australia) at the time of the visa application and review application and therefore do not meet the requirements of ss.338(2) and 347(3) of the Migration Act 1958 (the Act). Accordingly, the Tribunal finds that the second, third and fourth named applicants were not in the migration zone at the relevant time. As such, their applications for review are not applications properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter in relation to them.

    Member of the Family Unit

11. The remaining issue is whether the first named applicant meets the requirements to cl.188.311, requiring him to be a member of the family unit of a person who held a subclass 188 visa on the basis that they satisfied the primary visa criteria.

12. As noted above, it is not disputed that:

    ·the primary visa applicant for the subclass 188 visa application was Mr Somet Keo;

    ·he was refused a visa by the Department on 18 September 2019 and does not have standing to have that decision reviewed as he was outside the migration zone at the relevant time(s) – see s.347(2)); and

    ·the same applies to the second and third named applicants.

13. Therefore, although the first named applicant (Mr Keo’s son) is a member of Mr Keo’s family unit (as that term is defined in r.1.12 of the Regulations), he is not a member of the family unit of a person who holds a subclass 188 visa granted on the basis that they met the primary visa criteria. He therefore does not meet cl.188.311 and there is no evidence that he meets the primary visa criteria in his own right.

    decision

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

15. The Tribunal affirms the decision not to grant the first named applicant a Class EB (Business Skills – Provisional) subclass 188 Business Innovation and Investment Provisional visa.

    Alison Mercer
    Member