Kwok (Migration)

[2022] AATA 3625

Kwok (Migration) [2022] AATA 3625 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Victor Kar Chun Kwok
Miss Trini Kar Poh Kwok

REPRESENTATIVE:  Mr Russell Tien

CASE NUMBER:  2110259

HOME AFFAIRS REFERENCE(S):          BCC2019/412238

MEMBER:R. Skaros

DATE:18 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) visas.

Statement made on 18 October 2022 at 11:13am

CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – secondary applicants as members of family unit – primary applicant’s visa refused – adversely affected by investing in fraudulent company – no application for review and departed from Australia – no discretion to consider circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 888.311

CASE
Hasran v MIAC [2010] FCAFC 40

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 21 July 2021 to refuse to grant the visa applicants Business Skills (Permanent) Subclass 888 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 10 February 2019. The delegate refused to grant the visas on the basis that the review applicants were not members of the family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria: cl 888.311.

3. Relevantly, on 13 September 2022, the Tribunal wrote to the review applicants pursuant to s 359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.

4. The invitation was sent to authorised recipient at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 27 September 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicants did not provide the comments or seek an extension of time within the prescribed period. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicants are 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

6. On 28 September 2022, after the prescribed period had ended, the Tribunal received correspondence from the applicants’ authorised representative which included brief submissions about the reason for refusal and a request for an extension of time, until 7 October 2022, to provide further information. The representative informed the Tribunal that he has not been able to reach the applicants to obtained further instructions.

7. On the same day, an officer of the Tribunal wrote to the applicants (via their authorised representative) advising that the Tribunal had not received the comments or response or the request for an extension of time within the prescribed period (27 September 2022), and it appears the applicants have lost their right to a hearing, though this had to be determined by a member. The Tribunal informed the applicants that, if the member determines that they have lost their right to a hearing, the Tribunal may proceed to make a decision on the review and will have regard to all the information before it at the time the decision is made.

8. The applicants were advised that if they wished to provide any comments or response, and any other material in support of their review, they should do so by no later than 12 October 2022, after which the Tribunal may proceed to a decision on the information before it. No further correspondence was received from the applicants or their representative.

9. In considering whether to proceed to a decision on the review, the Tribunal has had regard to the following. Firstly, the Tribunal is satisfied that the s.359A letter was properly sent to the authorised representative at the last email address provided in connection with the review. The Tribunal is also satisfied that the authorised representative received the correspondence, as they sought an extension of time until 7 October 2022. The Tribunal was unable to grant the extension of time as the prescribed period had passed, however, it agreed to delay the making of its decision until after 12 October 2022 to enable the representative to contact the applicants and provide a response. To date the Tribunal has not received any further comments or response from the applicants or their representative, and there is nothing before the Tribunal which suggests that a response is forthcoming. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicants satisfy the requirements of cl. 888.311 as secondary applicants for the visa.

12. In this case, the review applicants applied for their visas on the basis of being members of the family unit of their father, Mr Kim Tam Kwok.

13. On 10 February 2019, Mr Kim Tam Kwok, lodged an application for a Subclass 888 (Business Innovation and Investment (Permanent)) visa as the primary applicant for the visa. The review applicants were included in the visa application as secondary applicants. They did not claim to meet the primary criteria for the grant of the visa or provide evidence that they did so.

14. As secondary applicants for the visa, the review applicants are required to satisfy cl.888.311, that they are members of the family unit of a person who holds a Subclass 888 visa granted on the basis that they satisfied the primary visa criteria.

15. On 21 July 2021 a delegate of the Department found that Mr Kim Tam Kwok did not meet the primary criteria for a Subclass 888 visa and refused to grant him the visa. Mr Kim Tam Kwok did not apply for review of this decision, and nor has this decision been revoked.

16. The Tribunal sought information about the visa status of Mr Kim Tam Kwok. The information obtained from Departmental records indicated that Mr Kim Tam Kwok was not the holder of a Subclass 888 visa. Movement records also indicated that he had departed Australia in September 2019.  

17. The above information was particularised in the s.359A letter dated 13 September 2022 in which the applicants were invited to comment on or respond. The Tribunal explained to the applicants that the information was relevant to the requirement in cl. 888.311 as the Tribunal may find that they were not members of the family unit of a person who holds a Subclass 888 visa.

18. The response received from the representative, which was received after the prescribed period for a response had ended, was that the applicants’ father, Mr Kim Tam Kwok, had invested in a company which was found to be fraudulent as the agreement and documentation provided by the company were fabricated and led to the loss of more than AUD $1 million. It was stated that while Mr Kim Tam Kwok was able to obtain damages through legal action, his Subclass 888 was adversely affected as he could not satisfy the definition of ‘complying investment’.

19. The Tribunal has had regard to the comments made by the representative, however, the Tribunal has no jurisdiction in respect of the decision made in relation to Mr Kim Tam Kwok. The only decisions before the Tribunal are those which relate to the secondary review applicants (Mr Victor Kar Chun Kwok and Miss Trini Kar Poh Kwok). The Tribunal acknowledges the unfortunate circumstances surrounding their father’s business dealings in Australia, however, the Tribunal has no discretion in this case. As the applicants’ father is not the holder of a Subclass 888 visa, it follows that the review applicants are not members of the family of a person who holds a Subclass 888 visa.

20. Given the above, the Tribunal finds that the applicants do not satisfy the criteria in cl.888.311. The decision under review must therefore be affirmed.

    decision

21. The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) visas.

    R. Skaros
    Senior Member