NADI (Migration)

NADI (Migration) [2017] AATA 74 (9 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Felicia Clara Sandra NADI
Mr Taufik DJAJA
Mr Kenny TANADI
Mr Larry TANADI
CASE NUMBER:  1516899
DIBP REFERENCE(S):  BCC2010/8371 BCC2016/828409
MEMBER:Adrian Ho
DATE:9 January 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 09 January 2017 at 5:40pm
CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 886 – Not nominated by a State or Territory government agency – Sponsor – Husband’s niece – Husband outside of Australia at time of application – Invalid application
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl.886.222

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 December 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 January 2010. At the time the visa application was lodged, Class VB contained three subclasses: 885, 886 and 887. The completed application form indicates that the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (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.
The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.886.222 of Schedule 2 to the Regulations.
The applicants appeared before the Tribunal on 30 November 2016 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Subclass 886
The applicant was refused the 886 visa for failure to meet cl.886.222 which relevantly requires:
(1) Either:
(a)     if the applicant was nominated by a State or Territory government agency in accordance with subitem 1136(3A) of Schedule 1 at the time of making the application — the requirements of subclause (2) are met; or
(b)     if the applicant was sponsored in accordance with subitem 1136(3B) of Schedule 1 at the time of making the application — the requirements of subclause (3) are met.
(2)     The Minister has accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1136(3A) of Schedule 1.
(3)      All of the following apply:
(a)     the applicant, and all persons included in the application, are sponsored by a person who:
(i)     has turned 18; and
(ii)     is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(iii)     is usually resident in Australia; and
(iv)     is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also an applicant for a Subclass 886 visa) as:
(A)     a parent; or
(B)     a child or a step-child; or
(C)     a brother or sister, an adoptive brother or sister, or a step-brother or step-sister; or
(D)     an aunt or uncle, an adoptive aunt or uncle, or a step-aunt or step-uncle; or
(E)     a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece
The applicant conceded at hearing, and the tribunal finds, that the applicant was not and is not nominated by a State or Territory government agency.
The applicant provided a copy of the delegate’s decision to the tribunal where (f.2) the delegate records that the applicant’s husband was not in Australia on the date of visa application – 30 November 2019 – and had not made a valid visa application.
The applicant and her migrant agent had no meaningful response to the proposition that therefore the applicant’s husband was not an applicant for a Subclass 886 visa.
As noted by the delegate, the tribunal considers that to make a valid visa application the applicant’s husband had to be in Australia along with the applicant. As conceded, he was outside Australia, did not make a valid visa application, and is not an applicant for a Subclass 886 visa.
The difficulty for the applicant is that her sponsor, Yoannita, she said, is her husband’s sister’s daughter – his niece.
As suggested, the applicant’s partner’s niece is only an acceptable sponsor as laid out above if he remains an applicant for a Subclass 886 visa, which he is not.
On the evidence, Yoannita is not related to the applicant other than through her husband and she is not the applicant’s niece, adoptive niece or step-niece (the child of one’s step-sibling). Nor is she any other form of relative to the applicant as noted above.
The applicant gave evidence that she has no other relative in Australia mentioned above.
As suggested, the tribunal finds the applicant cannot, and does not, satisfy cl.886.222(3).
For the reasons above, the applicant therefore does not meet subclause (1)(a) or (1)(b) above and therefore does not meet cl.886.222.
She does not meet the criteria for an 886 visa.
Subclass 885
As suggested at hearing, on the evidence available the applicant does not have the pass mark required by cl.885.221 in what is commonly known as the ‘points test’.
The delegate’s calculation gave the applicant 105 points against the Schedule 6B points test (f.2).
The applicant herself reproduced Schedule 6B and noted that the pass mark was 120 for subclass 885 and indicated that she has achieved 115 points (f.46).
On the evidence, the tribunal is not satisfied the applicant has the pass mark of 120 and the applicant does not meet cl.885.221.
Subclass 887
As suggested at hearing, cl.887.212 requires a 2 year period of living in at least one specified regional area while being the holder of certain specified visas. The applicant did not claim to meet this mandatory requirement, and on the evidence the applicant does not meet cl.887.212.
It follows that the applicant does not satisfy the criteria for the grant of a Class VB visa.
No decision is made in relation to the three other named “applicants” above. The tribunal finds each of them was not in Australia at the time of visa application and they did not make valid visa applications, nor were they the subject of the delegate’s decision (see f.5). Therefore, there is no Part-5 reviewable decision in relation to each of them, and the tribunal has no jurisdiction with respect to each of them.
In any event, on the evidence, they do not meet the primary criteria in any subclass and would not be entitled to the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.
Adrian Ho
Member

·     Item 1136. Skilled (Residence) (Class VB)
o    (1) Forms:
1276 and 1276 (Internet).
o    (2) Visa application charge:
§(a) First instalment (payable at the time application is made):
§(i) In the case of an applicant who is the holder of:
(A) a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(B) a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa; or
(C) a Subclass 475 (Skilled — Regional Sponsored) visa; or
(D) a Subclass 487 (Skilled — Regional Sponsored) visa; or
(E) a Bridging A (Class WA) or Bridging B (Class WB) visa granted on the basis of a valid application for:
(I) a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(II) a Skilled (Provisional) (Class VC) visa (other than a Subclass 485 visa): $230
§(ii) In any other case: $2 525.
§(b) Second instalment (payable before grant of visa):
§(i) In the case of an applicant who:
(A) had turned 18 at the time of application; and
(B) is assessed as not having functional English; and
(C) has not paid a second instalment of visa application charge in relation to the application for the visa, mentioned in paragraph (a), that the applicant holds: $3 510
§(ii) In any other case: Nil.
o    (3) Other:
§(a) Application must be made:
§(i) as an Internet application; or
§(ii) by posting the application (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or
§(iii) by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph.
§Note An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.
§(b) Applicant must be in Australia but not in immigration clearance.
§(c) Application by a person claiming to be a member of the family unit of a person who seeks to satisfy the primary criteria may be made at the same time and place as, and combined with, an application by that person.
§(d) The requirements of subitem (4), (5), (6) or (7) must be satisfied.
o    (4) The following requirements must be met:
§(a) one of the following subparagraphs must be satisfied by the applicant:
§(i) the applicant must be the holder of an eligible student visa;
§(ii) the applicant must be the holder of a Bridging A (Class WA) visa or Bridging B (Class WB) visa that was granted on the basis of a valid application for a visa other than 1 of the following visas:
(A) a Subclass 570 (Independent ELICOS Sector) visa;
(B) a Subclass 571 (Schools Sector) visa;
(C) a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 573 (Higher Education Sector) visa, or a Subclass 574 (Postgraduate Research Sector) visa, that was applied for on the basis that the applicant seeking to satisfy the primary criteria for the grant of that visa intends to undertake a course of study paid for, wholly or in part, by:
(I) the Commonwealth or the government of a State or Territory; or
(II) the government of a foreign country; or
(III) a multilateral agency;
and for which a condition of payment by that body for the course is that the student will leave Australia on the completion of the course;
(D) a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 573 (Higher Education Sector) visa, or a Subclass 574 (Postgraduate Research Sector) visa that was applied for on the basis that the applicant seeking to satisfy the primary criteria for the grant of that visa intends to undertake a course of study or training under a scholarship scheme or training program approved by:
(I) the AusAID Minister; or
(II) the Defence Minister;
and for which a condition of that scheme or program is that the student will leave Australia on completion of the course;
(E) a Subclass 575 (Non-Award Sector) visa;
(F) a Subclass 576 (AusAID or Defence Sector) visa;
and must also have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application is made;
§(iii) the applicant must:
(A) be the holder of a substantive visa other than a visa mentioned in sub-subparagraphs (ii)(A) to (F); and
(B) have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application for the Skilled (Residence) (Class VB) visa is made;
§(iv) the applicant must have been taken, under sections 368C, 368D and 379C of the Act to have been notified that the Migration Review Tribunal has set aside and substituted the Minister’s decision not to revoke the cancellation of the applicant’s eligible student visa not more than 28 days before the day on which the application is made;
§(b) the applicant seeking to satisfy the primary criteria for the grant of the visa:
§(i) must be less than 45; and
§(ii) must nominate a skilled occupation in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
o    (5) The following requirements must be met:
§(a) the applicant must be:
§(i) the holder of a Subclass 476 (Skilled — Recognised Graduate) visa; or
§(ii) the holder of a Subclass 485 (Skilled — Graduate) visa;
§(b) the applicant seeking to satisfy the primary criteria for the grant of the visa must:
§(i) have been granted the visa mentioned in paragraph (a) on the basis of satisfying the primary criteria for the grant of that visa; and
§(ii) nominate a skilled occupation in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
o    (6) The following requirements must be met:
§(a) each applicant must be the holder of a Subclass 471 (Trade Skills Training) visa;
§(b) the applicant seeking to satisfy the primary criteria for the grant of the visa:
§(i) must have been the holder, for a total of at least 2 years before the day on which the application was made, of the Subclass 471 (Trade Skills Training) visa mentioned in paragraph (a) that was granted on the basis of satisfying the primary criteria for the grant of that visa; and
§(ii) must be less than 45; and
§(iii) must nominate a skilled occupation in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
o    (7) The following requirements must be met:
§(a) the applicant must be the holder of:
§(i) a Skilled — Independent Regional (Provisional) (Class UX) visa; or
§(ii) a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa; or
§(iii) a Subclass 475 (Skilled — Regional Sponsored) visa; or
§(iv) a Subclass 487 (Skilled — Regional Sponsored) visa; or
§(v) a Bridging A (Class WA) visa or Bridging B (Class WB) visa that was granted on the basis of a valid application for:
(A) a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(B) a Skilled (Provisional) (Class VC) visa;
§(b) the applicant seeking to satisfy the primary criteria for the grant of the visa must have been, for a total of at least 2 years before the day on which the application was made, the holder of 1 of the following visas:
§(i) a Skilled — Independent Regional (Provisional) (Class UX) visa;
§(ii) a Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa;
§(iii) a Subclass 475 (Skilled — Regional Sponsored) visa;
§(iv) a Subclass 487 (Skilled — Regional Sponsored) visa;
that was granted on the basis of satisfying the primary criteria for the grant of that visa, or of being the spouse or de facto partner of the applicant who satisfied the primary criteria for the grant of the visa.
o    (8) Subclasses:
§885 (Skilled — Independent)
§886 (Skilled — Sponsored)
§887 (Skilled — Regional)

[2017] AATA 74

9 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction