Magdamit (Migration)

[2017] AATA 111

Magdamit (Migration) [2017] AATA 111 (13 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Liza Marie Magdamit
Ms Leigh Bianca Magdamit
Mr Liam Eugene Magdamit

CASE NUMBER:  1619920

DIBP REFERENCE(S):  BCC2013/1924206

MEMBER:Karen Synon

DATE:13 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 457 visa:

·cl.457.323 of Schedule 2 to the Regulations.

Statement made on 13 January 2017 at 11:52am

CATCHWORDS

Temporary Business Entry (Class UC) visa – Subclass 457 – Federal Circuit Court remittal – Administrative and legislative issue – Secondary applicants omitted – Nomination expired – New tribunal case initiated for secondary applicants – Hearing not required

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a),

Migration Regulations 1994, Schedule 2, cl 457.223(4)(a), cl 457.323

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The review applicants are secondary applicants of Mr Eugenio Jr. Magdamit.  They made a combined application for a Temporary Business Entry (Class UC) visa with Mr Eugenio Jr. Magdamit on 22 November 2013.

3. At the time the application was lodged, Class UC contained Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   Background to this decision

4. The delegate refused to grant the visas to Mr Eugenio Jr. Magdamit and all members of his family unit on 12 June 2014 on the basis that cl.457.223(4)(a) was not met.

5. The applicant applied for review of the primary decision on 1 July 2014 and provided a copy of the department’s decision to the Tribunal.

6. On 12 August 2015 the Tribunal found it had no jurisdiction to review the decision.

7. On 17 June 2016 the Federal Circuit Court, by consent, quashed the decision and remitted it to the Tribunal to be determined according to law.

8. On 30 August 2016 the Tribunal made a decision to remit Mr Eugenio Jr. Magdamit’s application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that he met cl.457.223(4)(a). It did this on the basis that a nomination had been approved on 28 September 2015 and was still current at the time of the Tribunal decision.

9. No decision was made in respect of any of the members of the family unit of Mr Eugenio Jr. Magdamit who had applied for the visa because administratively they were not included as applicants on this case.  On subsequent review the Tribunal notes that the language of the Order of the Federal Circuit Court appeared to be ambiguous in that it only named Eugenio Magdamit as the applicant.  Therefore when officers were creating the new case they omitted all the secondary applicants from the case file details.

10. On 28 October 2016 the Department contacted the Tribunal thus:

    I have recently reviewed file BCC2013/1924206…It is my understanding that on 17 June 2016, the Federal Circuit Court ordered that the “combined application” be remitted to the Tribunal for reconsideration according to law.

    This event was recorded in ICSE for all four (4) applicants on 20/06/2016…

    However, the subsequent ISCE event “Review Commenced – Migration” which was recorded on 30/06/2016 with an effect date of 24/06/2016 only listed the primary applicant.  This seems to be inconsistent with the Federal Court order for the combined application to be remitted to the Tribunal.

    The attached AAT correspondence further indicates that “Any correspondence given … to the primary review applicant… will… apply to all members of the family who combined their applications.”

    Could DIBP Tribunal Liaison please urgently review this matter and record the necessary “Review Commenced” and “Review Set Aside” events in ICSE for the three (3) family members who also lodged valid visa applications, as secondary applicants, together with the primary applicant on 22/11/2013. Once the three (3) secondary applicants have been “updated” in ICSE, I will be able to request further outstanding information, in relation to them. (health insurance, medical exams, etc).

11. The Tribunal remitted Eugenio Magdamit’s case (1609711) ‘on the papers’ as the only issue in contention was cl.457.223(4)(a) and, at the time of the Tribunal’s decision, an approved nomination was valid. However subsequently that nomination expired by operation of law on 28 September 2016. The Tribunal considered, but was not able to vacate this decision as there was no jurisdictional error in 1609711.

12. On 24 November 2016 the Tribunal wrote to the department in the following terms:

    The member has indicated in this instance that she intends to have a new tribunal case initiated for the secondary applicants in order for her to process their reviews. This appears to be the best solution both administratively and legislatively. The tribunal will notify you in the next few days as to the new review application number.

13. As the secondary applicants are not able to meet cl.457.223(4)(a) as no new nomination appears to have been approved in respect of the primary visa applicant Mr Eugenio Jr. Magdamit, the Tribunal has decided to remit, on an alternative basis, the decisions in respect of the secondary applicants. This ensures that the members of the family unit of Mr Eugenio Jr. Magdamit are able to be considered by the department in respect of the remaining 457 criteria.

14. The applicants were represented in relation to the review by their registered migration agent.

15. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Tribunal is considering whether the applicants meet the requirements of cl.457.323.

18. This requires that:

    457.323

    If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

19. There is no information before the Tribunal to suggest that any of the applicants have not complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

20. Therefore the Tribunal finds that the applicants meet cl.457.323.

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

22. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 457 visa:

    ·cl.457.323 of Schedule 2 to the Regulations.

    Karen Synon
    Member