Mukandi (Migration)

[2023] AATA 2054

Mukandi (Migration) [2023] AATA 2054 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pellagia Rumbidzai Mukandi
Mr Clapton Mehlomakulu
Master Mcclymont Douglas Mehlomakulu
Master Ashwell Emmanuel Mehlomakulu

CASE NUMBER:  2013325

HOME AFFAIRS REFERENCE(S):          BCC2017/2550190

MEMBER:Warren Stooke AM

DATE:1 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 1 May 2023 at 11:20am

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – worked ‘full-time’ in a ‘specified regional area’ – for a total of at least 1 year – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 887.213

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 10 August 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 July 2017. 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 visas on the basis that the first named applicant (the applicant) did not satisfy cl 887.213 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had worked for 35 hours per week over a 1 year period between 15 April 2015 and 18 July 2017.

4. The applicants appeared before the Tribunal on 1 May 2023 to give evidence and present arguments.

5. The applicant stated that she had received a copy of the decision from the Department and had read the decision. The applicant stated that her lawyer provided a copy of the decision to the Tribunal with her application for review.

6. The applicant stated that she understood that the visa application was refused because she did not meet the requirement in terms of the hours of work.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue is whether 887.213 is satisfied, which is the criteria for the grant of a Skilled (Residence) (class VB) Skilled - Regional (subclass 887) including compliance with condition 8539.

9. The applicant was granted a Bridging Visa A on 18 July 2017 with no conditions and no travel.

10. The Tribunal asked the applicant if there was any period between 15 April 2015 and 18 July 2017 when the applicant worked for 35 hours within a 1 year period.

11. The applicant responded: “No Member, it was a mix of full-time; part-time and casual and that is why I did not qualify”.

12. The applicant stated that it was a lack of knowledge and lack of guidance and that she had 4 years to apply.

13. The Tribunal advised the applicant that the Tribunal has to determine whether the applicant has complied with the criteria.

14. The applicant asked the Tribunal if the work needed to be continuous and the Tribunal responded that the requirement is to work 35 hours period week over a 1 year period.

15. The applicant responded that it was the ‘continuous part’ that was at issue.

16. Prior to hearing the secondary applicant corresponded with the Tribunal and claimed that he had worked full-time for the whole qualifying period.

    Work in a regional area

17. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

18. The Tribunal is satisfied on the evidence that the primary applicant had not worked full time in the specified regional area for a total of at least 1 year during the qualifying period from 15 April 2015 and 18 July 2017.

19. The Tribunal finds that the applicant does not satisfy cl 887.213.

20. On the basis that the primary applicant has not met the criteria for the grant of a 887 visa, it follows that the secondary applicants are not members of a family unit that has met the requirements for the grant of 887 visas.

21. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 887 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    Ministerial referral

22. The Tribunal notes that the applicant has the right to refer the case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Whilst the applicant has not applied to the Tribunal for a Ministerial Reference, the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and notes that the applicant can still make a request directly to the Minister.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

    Warren Stooke AM
    Member