Olusina (Migration)

[2019] AATA 2296

Olusina (Migration) [2019] AATA 2296 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taiwo Titus Olusina
Mrs Abosede Grace Olusina
Miss Deborah Olufunmilayo Temilayo Olusina
Miss Temitayo Elizabeth Esther Roseline Olusina
Mr Olufemi Ezekiel Olusina
Mr Emmanuel Temidayo Ayodele Ayokunle Olusina

CASE NUMBER:  1823288

HOME AFFAIRS REFERENCE(S):           BCC2017/4388065

MEMBER:Antonio Dronjic

DATE:7 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

·cl.189.232(1) of Schedule 2 to the Regulations and

·The Tribunal does not have jurisdiction in respect of the secondary applicants.

Statement made on 07 May 2019 at 12:06pm

CATCHWORDS
MIGRATION – Independent (Permanent) (Class SI) visa – Subclass 189 – Tax Assessment notices provided – secondary applicants not in migration zone at relevant time – no jurisdiction in respect of secondary applicants – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 338, 347
Migration Regulations 1994 (Cth), Schedule 2, cls 189.232, 189.323

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 26 July 2018 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s.65 of the Migration Act 1958 (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 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 who are applicants for the visa need satisfy only the secondary criteria.

3. In the present case, the delegate refused to grant the visas because the first named applicant has failed to provide tax assessment notices in relation to the four most recently completed income years before the date of application. Accordingly the delegate found that the applicant does not meet the requirements of cl.189.323 (1) to Migration Regulations 1994 (the Regulations).

4. On 13 August 2018, the Tribunal received copies of the Tax Assessment notices in relation to the four most recently completed income years before the date of application (from 2012 to 2017 financial years). In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

5. The Department’s movement records show that none of the secondary applicants were in Australia at the time of the visa application (21 November 2017) or at the time of the review application.

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

7. The Tribunal finds that the secondary applicants were not in the migration zone at the relevant time. As such, the applications for review by secondary applicants are not applications properly made under s.347 and it follows that the Tribunal does not have jurisdiction in respect of secondary applicants in this matter.

   DECISION

8. The Tribunal remits the applications for Skilled - Independent (Permanent) (Class SI) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

   ·cl.189.232(1) of Schedule 2 to the Regulations, and

   ·The Tribunal does not have jurisdiction in respect of the secondary applicants.

   Antonio Dronjic
   Member