Keshavarz (Migration)

[2022] AATA 4245

Keshavarz (Migration) [2022] AATA 4245 (6 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Masoumeh Keshavarz

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1924182

HOME AFFAIRS REFERENCE(S):          BCC2018/2013625

MEMBER:Mary Sheargold

DATE:6 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

·cl 887.221(1) of Schedule 2 to the Regulations.

Statement made on 06 October 2022 at 11:41am

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa Subclass 887 visa – applicant resided and worked in a designated regional area for 74.94% of the time – substantially complied with condition 8539 – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, cl 887.221

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 19 August 2019 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 May 2018. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 applicant did not satisfy cl 887.221 of Schedule 2 to the Regulations because she did not substantially comply with condition 8539 while she held a Subclass 489 visa.

4. The applicant was represented in relation to the review.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can demonstrate that she meets the requirements of cl.887.221(1).

8. This clause requires applicants to demonstrate that they have substantially complied with the conditions attaching to their provisional skilled visas, including a Regional Skilled (Provisional) (Class SP) visa, the type of visa held by the applicant prior to making this application.

9. The applicant’s Subclass 489 Regional Skilled (Provisional) (Class SP) visa had only one condition attached to it, condition 8539, and the applicant was obliged to comply with that condition.  Condition 8539 states:

   While the holder is in Australia, the holder must live, study and work only in an area specified by the Minister in an instrument in writing for item 6A1001 of Schedule 6A or item 6D101 of Schedule 6D, as in force:

   (a)  when the visa was granted; or

   (b)  if the holder has held more than 1 visa that is subject to this condition – when the first of those visas was granted.

10. The wording of condition 8539 is broad.  There is no legislative instrument prescribed for the purposes of Schedule 6A of the Regulations, as that schedule was repealed in 2012.  Schedule 6D relates to points test requirements, which are not relevant to applicants for a Subclass 887 visa.  The instrument in writing for Item 6D101 of Schedule 6D to the Regulations that applied at the time Ms Keshavarz was granted a Subclass 489 visa, IMMI 12/015, relates to the locations of campuses for study in regional areas.  However, the manner in which the wording in condition 8539 has been drafted is such that it is arguable that the Minister needs to rely on the postcodes stipulated in IMMI 12/015 to determine whether or not a Subclass 489 visa holder is living, working, and/or studying in a specified area.

11. Ms Keshavarz was granted her Subclass 489 visa on 26 February 2015, and she arrived in Melbourne on 23 May 2015.  Her Subclass 489 visa was sponsored by the State of New South Wales.  Every suburb in the Melbourne metropolitan area is specifically excluded from the list of postcodes in IMMI 12/015.

12. Ms Keshavarz’s Subclass 489 visa was valid from 26 February 2015 to 26 February 2019.  She did not arrive in Australia until 23 May 2015.  From 23 May 2015 to July 2015, she lived in Dallas, a suburb of Melbourne, then until 2 May 2016, she lived in Altona North, another Melbourne suburb.  She relocated to Geelong West on 3 May 2016 and remained living in the Geelong area until the natural cessation of her Subclass 489 visa.  Indeed, evidence on the Tribunal’s file indicates that she has remained in Herne Hill, which shares the postcode for Geelong West, until at least the middle of 2021.  

13. The question for the Tribunal to determine at review is whether or not Ms Keshavarz substantially complied with condition 8539 that attached to her Subclass 489 visa.  The Tribunal notes that the wording of cl.887.221(1) does not impose a strict mandate to comply with the condition.  The qualifier ‘substantially’ gives the decision maker discretion to weigh up the factors relevant to Ms Keshavarz’s application to determine whether or not she has met the requirement for the grant of a Subclass 887 visa.

14. Relevantly, the manner in which cl.887.212 is worded, where applicants are required to live in the designated regional area for only 2 years while holding a Subclass 489 visa and still qualify to be granted a Subclass 887 visa, invites the Tribunal at review to look at all the circumstances as to why a visa holder may have spent time outside their designated regional area when they held a Subclass 489 visa.

15. The Department’s policy regarding compliance with condition 8539, set out in its PAM3 Guidelines, makes plain that the intent of the Subclass 489 visa scheme is to ensure holders actually live in a regional area while they hold the visa, and do not relocate to a major city.  The policy states that holders may travel to major cities for brief periods such as weekends away, but that establishing a residence in a major city would not be consistent with the intent of the visa program and would lead the applicant to fall foul of the requirements.

16. The Tribunal is not bound by Departmental policy.  While the Tribunal recognises and understands the obvious motivations behind that draft wording, the Tribunal is also cognisant of Ms Keshavarz’s unique circumstances as a Subclass 489 visa holder.  Ms Keshavarz has provided evidence to the Tribunal that she intended to live in inland northern New South Wales, but elected to fly into Melbourne on arrival to stay with two distant friends.  As a single woman who had not left Iran before, the Tribunal sympathises with Ms Keshavarz’s decision, and accepts she settled in Melbourne at first in good faith, believing she was entitled to do so while she worked out how to relocate to regional Australia.

17. The Tribunal accepts Ms Keshavarz’s statements that she was not actually able to determine a path to settle in regional NSW as intended, and notes she did take steps such as enrolling in an English language course to increase her employability in Victoria.  She has provided evidence of attempts to find work of any kind whatsoever in regional Victorian towns including Ballarat and Bendigo.  The Tribunal accepts her statements that upon realising that Geelong would be an acceptable regional centre, she travelled daily from her home in Altona North seeking work in Geelong, and once she secured employment, she settled there immediately.  She has remained in the greater Geelong area since.  The Tribunal accepts Ms Kashavarz’s evidence that her Iranian migration agent had led her to believe that as long as she lived and worked in regional Australia for 2 years while holding her Subclass 489 visa she would become eligible for permanent residency, and takes her contrition for this error as genuine.

18. The Tribunal is persuaded that Ms Kashavarz did substantially, albeit not fully, comply with condition 8539 while she held her Subclass 489 visa.  As her representative has submitted, she resided and worked in a designated regional area for 74.94% of the time she held her Subclass 489 visa.

19. Taking into account Ms Kashavarz’s unique circumstances as a whole, the Tribunal is satisfied that she has consistently demonstrated her bona fide intentions to comply with her visa conditions and accepts she believed she had substantially complied with condition 8539 at the time she applied for this visa.  The Tribunal is satisfied that by living in Geelong, a designated regional area, for almost 75% of the time she lived in Australia as the holder of a Subclass 489 visa, Ms Kashavarz substantially complied with condition 8539.  The Tribunal makes this finding reflecting the unique circumstances surrounding Mr Kashavarz’s difficulty in obtaining suitable employment in regional New South Wales despite repeated, consistent efforts to do so, and her demonstrated willingness to reside in any regional centre where she may work in her skilled occupation as a chemist.

20. The Tribunal appreciates that its findings here are a departure from the Department’s policy.  However, Ms Kashavarz has made true and genuine efforts to abide by her visa condition and the evidence before the Tribunal supports this finding.  The Tribunal is also cognisant that if Ms Kashavarz is granted a Subclass 887 visa but no longer resides in a designated regional area, it will open up avenues by which that visa may be cancelled.

21. Therefore, based on the evidence available to it at review, the Tribunal finds that the applicant satisfies cl 887.221.

22. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    decision

23. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

    ·cl 887.221(1) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member