Sharma (Migration)

[2023] AATA 3880

Sharma (Migration) [2023] AATA 3880 (16 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rahul Sharma
Mrs Parveen Kumari

REPRESENTATIVE:  Mr Harmeet Singh (MARN: 2117715)

CASE NUMBER:  2209344

HOME AFFAIRS REFERENCE(S):          BCC2020/2418797

MEMBER:Mary Sheargold

DATE:16 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

·cl 189.231B and cl 189.231A(a) of Schedule 2 to the Regulations.

Statement made on 16 November 2023 at 7:59am

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – New Zealand Stream – visa application made before 10 December 2022 – new amendments apply – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 189.211, 189.212, 189.231 - 189.234

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 to refuse to grant the applicants Skilled Independent (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 5 October 2020. The delegate refused to grant the visas on 10 June 2022.

2. The delegate made the decision on the basis that evidence of sufficient taxable income was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. Having considered this case carefully, the Tribunal notes that the Migration Amendment (Subclass 189 Visas—New Zealand Stream) Regulations 2022, which commenced on 10 December 2022, inserted a new clause cl 189.231A to the criteria for a subclass 189 visa.

4. Clause 189.231A states that applicants for a subclass 189 visa in the New Zealand stream satisfy either or both of the following: (a) clause 189.231B; (b) clauses 189.231, 189.232, 189.233 and 189.234.

5. The new cl 189.231B requires that the visa application was made before 10 December 2022.

6. The practical result of these amendments is that an applicant who applied for a subclass 189 visa in the New Zealand stream before 10 December 2022 and did not have a decision to grant or to refuse to grant the visa made before that day will satisfy new cl 189.231B, and therefore new cl 189.231A(a), without needing to also satisfy the additional primary criteria in cls 189.231, 189.232, 189.233 and 189.234.

7. In this matter, as the applicants applied for review on 23 May 2022, the amendments above apply.  As the visa applications in this matter were lodged on 10 November 2020, the Tribunal finds that cl 189.231B and in turn cl 189.231A is satisfied by the first named applicant and the applicant no longer needs to meet cl 189.233.  The Tribunal notes that the applicants will still need to satisfy the common criteria in cls 189.211 and 189.212 but it further notes that the Department will deal with those upon remittal of this matter to the Department for reconsideration.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicant.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 189 visa:

    ·cl 189.231B and cl 189.231A(a) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member