Li (Migration)

[2020] AATA 2408

Li (Migration) [2020] AATA 2408 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Suiyin Li
Miss Lin Li

CASE NUMBER:  1930623

DHA REFERENCE(S):  BCC2017/3570742, BCC2019/6125954, BCC2019/6125955, BCC2019/6125956, BCC2019/6125957

MEMBER:Katie Malyon

DATE:1 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in respect of the first named applicant.

The Tribunal affirms the decision in respect of the second named applicant.

Statement made on 1 April 2020 at 4:40 pm

CATCHWORDS

MIGRATION – Business Skills - Business Talent (Permanent) visa – Subclass 132 (Business Talent) – physically present in the migration zone at the time of review application – applicant earlier left Australia – member of the family unit – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 5(1), 65, 338, 347, 353, 359, 363
Migration Regulations 1994, Schedule 2, cl 132.311

CASES

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 Immigration on 23 October 2019 to refuse to grant the applicants Business Skills - Business Talent (Permanent) Subclass 132 visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 29 October 2019.  It is a combined application for review.  The first named applicant is Chinese national Mr Suiyin Li.  The second named applicant is Mr Li’s claimed daughter, Chinese national Miss Lin Li. 

   Application for review by Mr Suiyin Li

3. For the following reasons, the Tribunal has no jurisdiction to review the delegate’s decision in respect of Mr Li as the application was not made in accordance with the relevant legislation. 

4. 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) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s.347(2)(a) and s.347(3) of the Act. The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means the Australian States and Territories.

5. Information before the Tribunal indicates that Mr Li was not in Australia when the application for review was made on 29 October 2019.

6. On 11 December 2019, the Tribunal wrote to the applicants by their representative, Ms He Shan Cao of Rubix Lawyers Pty Ltd, inviting them to comment on the validity of the application for review made by Mr Li.  The applicants were invited to comment on this information by 7 January 2020.  No response was received from the applicants.

7. Departmental movement records confirm Mr Li left Australia on 9 September 2019 and has not returned since.  As such, the Tribunal finds that Mr Li was not in the migration zone relevant time, namely, 29 October 2019. Accordingly, the application for review made by Mr Li is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in respect of Mr Li.

   Application for review by Miss Lin Li

8. In respect of Miss Li’s application, the Tribunal finds that it has jurisdiction as Departmental movement records confirm she was in the migration zone when the delegate’s decision was made and also when review application was lodged.

9. However, Miss Li applied for a Subclass 132 visa on the basis of being a member of the family unit of the primary visa applicant, Mr Li.  Miss Li can only be granted the visa if she is a member of the family unit of a person who holds a Subclass 132 visa or, in the alternative, if she meets the primary criteria for grant of the visa.

10. On 13 March 2020, the Tribunal wrote to the review applicants pursuant to s.359A of the Act. It invited them to provide written comments on or respond to information which it considered would be the reason, or a part of the reason, for affirming the decision under review. The information related to the Department’s movement records which confirm that Mr Suiyin Li was not in Australia at the time the review application was lodged. The Tribunal explained that the information is relevant because, if the Tribunal finds that it does not have jurisdiction in relation to Mr Li’s application for review, then it may go on to find that Miss Li does not meet cl.132.311 of Schedule 2 to the Regulations which requires her to be a member of the family unit of a person who holds a Subclass 132 visa granted on the basis of satisfying the primary criteria for the grant of the visa. The Tribunal explained that, if she did not meet cl.186.311 or did not satisfy primary criteria for grant of a Subclass 132 visa, the decision under review in relation to her would be affirmed.

11. The Tribunal’s letter was sent to the applicants’ representative at the last address provided in connection with the review. It advised that, if the applicants’ comments or response was not provided in writing by 27 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain their comments or response and Miss Li would lose any entitlement she might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

12. The applicants have not provided their comments within the prescribed period and no extension of time to respond has been requested. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Miss Li 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

13. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow Miss Li additional time in which to provide evidence to support her review application. In this regard, the Tribunal has considered: whether, in the circumstances of this case, evidence that Miss Li meets the relevant requirements of cl.132.311of Schedule 2 to the Regulations is likely to be forthcoming or that she can otherwise demonstrate that she meets the primary criteria for grant of the visa; whether she has already had a fair opportunity to provide the relevant information or documentation or, in the alternative, request an extension of time in which to do so; and, the significance of the information or documents to her.

14. In the circumstances of this case, the Tribunal considers Miss Li has had sufficient time in which to address the issue arising on review – namely, whether she meets cl.132.311of Schedule 2 to the Regulations or can otherwise demonstrate she meets the primary criteria for grant of a Subclass 132 visa - or, in the alternative, seek an extension of time in which to provide some evidence in support of this. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. In the circumstances, the Tribunal has determined to make a decision on the review without taking any further action to obtain any information, comments or response from the applicants in accordance with s.359C of the Act.

15. Based on available evidence, the second named applicant - Miss Li - is not a member of the family unit of the person who holds a Subclass 132 visa.  Further, there is no evidence to suggest that she meets the primary criteria for grant of the visa.  As such, the Tribunal finds that the second named applicant does not satisfy cl.132.311 of Schedule 2 to Regulations. 

16. Accordingly, the decision under review in respect of the second named applicant must be affirmed. 

    DECISION

17. The Tribunal does not have jurisdiction in respect of the first named applicant.

18. The Tribunal affirms the decision in respect of the second named applicant.

    Katie Malyon

    
    Member