Tennakoon Mudiyanselage (Migration) - [2022] AATA 1685

Tennakoon Mudiyanselage (Migration) [2022] AATA 1685 (27 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ruwan Tennakoon Mudiyanselage
Mrs Indira Sembapperuma Arachchige
Mr Diluk Tennakoon Mudiyansalage
CASE NUMBER:  2110471
HOME AFFAIRS REFERENCE(S):          BCC2019/2521731
MEMBER:Susan Trotter
DATE:27 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal does not have jurisdiction in relation to Mr Ruwan Tennakoon Mudiyanselage.
The Tribunal affirms the decision not to grant Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage Business Skills (Provisional) visas.

Statement made on 27 April 2022 at 8:19pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – primary applicant not in migration zone when visa application made – application made online and taken to have been received by department in Australia – ‘while’ or ‘physically present’ in migration zone – plain reading of requirement – no reviewable decision – secondary applicant wife established and was running business but was not invited to apply for visa – secondary applicants in migration zone at relevant times – decision under review affirmed for secondary applicants – no jurisdiction for primary applicant
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 338(2)(b), 347
Migration Regulations 1994 (Cth), r 4.02(4), Schedule 2, cls 188.221, 188.225, 188.311, 188.411
Electronic Transactions Act 1999 (Cth), s 14B(1)
CASES
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Mohammed v MIBP [2014] FCCA 139

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 Home Affairs to refuse to grant the applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 May 2019, the applicants applied for the visas with the first named applicant, Mr Ruwan Tennakoon Mudiyanselage, applying as primary visa applicant with the second and third named applicants, Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, applying for the visas as secondary visa applicants on the basis that they are each a member of the family unit of the primary visa applicant, Mr Ruwan Tennakoon Mudiyanselage.
On 11 August 2021, the delegate refused to grant visas to the applicants on the basis that:
(a)
as regards Mr Ruwan Tennakoon Mudiyanselage, one of the necessary primary criteria,

cl 188.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), was not met as required. Further, the delegate assessed whether Mr Ruwan Tennakoon Mudiyanselage could meet the secondary criteria for the visa and concluded that one of the necessary secondary criteria, cl 188.311, was not met.
(b) as regards Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, cl 188.311 of Schedule 2 to the Regulations was not met as required because they were each not a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for grant of the visa. Further, the delegate assessed whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage could meet the primary criteria for the visa and concluded that cl 188.221, one of the necessary primary criteria to be met for the visa, was not met because no evidence had been provided of either Mrs Indira Sembapperuma Arachchige or Mr Diluk Tennakoon Mudiyansalage being invited by the Minister to apply for the visa.
On 13 August 2021, the applicants lodged an application for review of the delegate’s decision with the Tribunal and provided a copy of the delegate’s decision with their application.
On 20 August 2021, the Tribunal wrote to the applicants inviting them to comment on the validity of the application for review by Mr Ruwan Tennakoon Mudiyanselage. The letter included as follows:
I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Business Skills (Provisional) visas.
I am of the view that Ruwan Prasanna Jayatilake Tennakoon Mudiyanselage’s application is not a valid application. A decision to refuse a subclass 188 Business Innovation and Investment (Provisional) visa is a reviewable decision if the visa applicant was in the migration zone at the time of the vis application.
It appears that Ruwan Prasanna Jayatilake Tennakoon Mudiyanselage was not in the migration zone when the visa application was lodged on 14 May 2019. Therefore, the decision to refuse to grant Ruwan Prasanna Jayatilake Tennakoon Mudiyanselage subclass 188 Business Innovation and Investment (Provisional) visa is not a decision which can be reviewed by the Tribunal. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 3 September 2021. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 2 September 2021, the applicants’ representative provided written submission in response to the Tribunal’s application conceding that as Ruwan Prasanna Jayatilake Tennakoon Mudiyanselage was not in the migration zone when the visa application was made such the Tribunal may not have jurisdiction in relation to him but submitting that the Tribunal does have jurisdiction in relation to Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage.
On 7 September 2021, the applicants’ representative provided further submissions in relation to the issue of jurisdiction as follows:
We wish to amend our standing in relation to the Tribunal’s jurisdiction respecting the first named Applicant. Our standing in relation to Applicant’s 2 and 3 is unchanged.
We wish to indicate that, as the Application for the Business Visa was lodged online it is deemed to be made ‘in Australia’. When visa applications are lodged online, they may be made ‘in Australia’ irrespective of the physical location of the visa applicants. This is because s.14B(1) of the Electronic Transactions Act 1999 (ETA) provides that for the purposes of a law of the Commonwealth, unless otherwise agreed an electronic communication is taken to have been received at the place where the addressee has its place of business. It is not until a visa application is received by the Department, in the sense of it taking physical possession of it, that it can be said to have been ‘made’: Mohammed v MIBP [2014] FCCA 139 (Judge Driver, 31 January 2014) at [29]. As an application is not made until it is received by the Department, then by operation of s.14B, unless otherwise agreed by the parties, an internet application is made when it is taken to have been received at the relevant office of Immigration in Australia. Therefore, for visa applications lodged online, the physical location of the visa applicants will not generally be determinative of where the applications were made. As referred to in our previous submissions, there is no schedule 1 requirement precluding the Application from being made within or outside Australia.
This would clarify the reason as to why in the primary decision notification the Applicant’s review rights were set out as being eligible.
Accordingly, we submit that the Tribunal has jurisdiction in relation to all applicants.
On 9 March 2022, the Tribunal wrote to the applicants stating that it had considered the material before it but was unable to make a favourable decision on that information alone and invited the applicants to appear before the Tribunal on 25 March 2022 to give evidence and present arguments relating to the issues arising in their case.
On 21 March 2022, the applicants sought an adjournment of the hearing on the basis that the main visa applicant’s wife was offshore attempting to obtain documents in support of cl 188.225 and that she was unable to do so prior to late February 2022, given Australia’s border closures and uncertainty in obtaining a bridging visa. An adjournment was sought in order to source the documents and in order for the representative to provide advice and prepare submissions.
On 22 March 2022, the Tribunal responded to the request for adjournment advising that the request had been refused however that the Tribunal would consider any request for further time post-hearing for the applicants to provide submissions or evidence.
On 24 March 2022, a further written request for adjournment was made because of the applicants’ representative resigning at short notice and because of the ill health of Mrs Indira Sembapperuma Arachchige. On the same date, a hearing response was provided to the Tribunal indicating that Mr Ruwan Tennakoon Mudiyanselage would be participating in the hearing and that Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage would not be participating in the hearing.
Mr Ruwan Tennakoon Mudiyanselage appeared before the Tribunal on 25 March 2022 by video conference to give evidence and present arguments. At hearing, Mr Ruwan Tennakoon Mudiyanselage advised that his wife, Mrs Indira Sembapperuma Arachchige, was not appearing at the hearing because she had only returned to Australia the previous night and was not well and that he would be appearing on her behalf. He further advised that he was not continuing to pursue an adjournment of the hearing.
The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments, given an opportunity to respond to the matters in issue and to fully participate in the hearing.
For the following reasons, the Tribunal has concluded that it has no jurisdiction to consider the application by Mr Ruwan Tennakoon Mudiyanselage, and, as regards Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Mr Ruwan Tennakoon Mudiyanselage confirmed that he was not in Australia at the time of the visa application on 14 May 2019. The Tribunal noted that the applicants’ previous representative had made written submissions in relation to whether the Tribunal had jurisdiction to consider the review in relation to him which would be taken into account by the Tribunal and asked if Mr Ruwan Tennakoon Mudiyanselage had any further submissions to make in that regard.
As regards Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage, Mr Ruwan Tennakoon Mudiyanselage said that his wife is the one who established the business in Australia and she was the one who was running the show, even though he applied as primary visa applicant and she applied as secondary visa applicant.
The Tribunal discussed with Mr Ruwan Tennakoon Mudiyanselage that the delegate had found that there was no evidence a Subclass 188 visa had been granted to him or any other member of the family unit of Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage such that cl 188.311 was not met as required. Mr Ruwan Tennakoon Mudiyanselage confirmed that that position had not changed since the decision of the delegate.
Mr Ruwan Tennakoon Mudiyanselage requested that the Tribunal consider whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage meet the primary visa criteria. The Tribunal indicated its concern about its ability to consider all of the primary criteria in relation to the secondary visa applications. Notably, however, as already canvassed earlier in these Reasons, as can be seen from the delegate’s decision, a copy of which was provided to the Tribunal by the applicants, the delegate also assessed whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage could meet the primary criteria for the visa and concluded that cl 188.221, one of the necessary primary criteria to be met for the visa as a primary visa applicant, was not met because no evidence had been provided of either Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage being invited by the Minister to apply for the visa. Whilst evidence has been provided to the Tribunal responsive to other of the primary criteria, no further evidence has been provided in this regard.
CONSIDERATION
Ruwan Mudiyanselage
In addition to earlier submissions received in relation to the jurisdiction issues raised by the Tribunal, the Tribunal also received post-hearing written submissions on 28 March 2022 as follows (unedited):
1.We refer to the above matter and advise that our representation is only limited to the submissions advanced below.
2.We write this submission to clarify the Applicant’s position in relation to whether the Tribunal has jurisdiction to hear his matter.
3.S 338(2) states that:
A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b) the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i)          was in immigration clearance; or
(ii)         had been refused immigration clearance and had not subsequently been immigration cleared;
4.Below we go through each of the provisions required to be met in order to be deemed a Part 5 reviewable decision and apply the facts and the law as they stand.
(a) the visa could be granted while the non-citizen is in the migration zone
5.Under Schedule 2 of the Migration Regulations 1994 (‘The Regulations’), particularly at clause 188.411, the applicant may be in or outside Australia when the visa is granted. Therefore, the Applicant is not precluded from the visa being granted while the non-citizen is in the migration zone.
(b) the non-citizen made the application for the visa while in the migration zone
6.S 5 of the Migration Act defines ‘migration zone’ as the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: a)land that is part of a State or Territory at mean low water; and b)sea within the limits of both a State or a Territory and a port; and c)piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port.
7.As the Application for the Business Visa was lodged online it is deemed to be made ‘in Australia’.
8.When visa applications are lodged online, they may be made ‘in Australia’ irrespective of the physical location of the visa applicants. This is because s.14B(1) of the Electronic Transactions Act 1999 (ETA) provides that for the purposes of a law of the Commonwealth, unless otherwise agreed an electronic communication is taken to have been received at the place where the addressee has its place of business.
9.It is not until a visa application is received by the Department, in the sense of it taking physical possession of it, that it can be said to have been ‘made’: Mohammed v MIBP [2014] FCCA 139 (Judge Driver, 31 January 2014) at [29]. As an application is not made until it is received by the Department, then by operation of s.14B, unless otherwise agreed by the parties, an internet application is made when it is taken to have been received at the relevant office of Immigration in Australia.
10.Therefore, for visa applications lodged online, the physical location of the visa applicants will not generally be determinative of where the applications were made. As referred to in our previous submissions, there is no schedule 1 requirement precluding the Application from being made within or outside Australia.
11.In line with the explanation above it is our position, that the correct and preferable conclusion to be drawn by the Tribunal, is that given that the application was ‘made’ in Australia, the application was ‘made’ in the migration zone.
12.The text of the definitional constraint contained in s 5 of ‘migration zone’ does not preclude this interpretation. The physical possession of the application by the Department in Australia, would be enough from a factual perspective to satisfy the requirements of both the application being ‘made’ in Australia, and ‘Australia’ being included in the definition of ‘migration zone’.
13.Moreover, the insertion of ‘while’ under s 338(2)(b), cannot be interpreted strictly as physical location of the applicant. If it was the parliament’s intention for the applicant to be ‘physically present’ whilst in the migration zone, the text would have expressly set this out. Take for example, the textual provisions under s 347(3) of the Migration Act 1958:
(3)       If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
14.The provision in that subsection clearly sets out that that the applicant is required to be physically present in the migration zone in order to make an application for review. S 338(2)(b) does not expressly set out physical presence as a requirement.
15.Our next exercise is to determine the meaning of ‘while’ in its use in s 338(2)(b). The plurality in Project Blue Sky stated:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative 20 provision to be read in a way that does not correspond with the literal or grammatical meaning.[1]
16.In its ordinary meaning of the word ‘while’ in its conjunctive sense (as it is used in s 338(2)(b)) connotes a period of time that is: ’during which’ or ‘during the time’. Given the above case authority, an application is taken to be made, when physical possession is taken of it. Therefore, when the internet application was made and received by the Department in Australia, it has been taken to be made in Australia (the migration zone).
17.Furthermore, in its grammatical sense, we indicate that the provision concerns itself with the location of where the visa application was ‘made’. The provision does not concern itself with the applicant’s physical location. As previously decided case authority indicates, an application may be ‘made’ in Australia, despite the applicant not present in Australia.
18.This interpretation would not be inconsistent with our position that when the Department received physical possession of the application in Australia, the Applicant ‘made’ that application in Australia (the migration zone).
(c) the decision was not made when the non-citizen: was in immigration clearance; or had been refused immigration clearance and had not subsequently been immigration cleared;
19.This provision would not be applicable given the facts.
[1] [1998] HCA 28; (1998) 194 CLR 355 at 384 [78].
Conclusion
20.On the basis of the above explanations, we submit that the Tribunal does have jurisdiction to review the application before it, as it was ‘made’ in Australia, and the review applicant was present in Australia when the review application was made.
The Tribunal has jurisdiction to review a decision under the Act if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Regulations set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. Of particular relevance in relation this matter, s 338 of the Act provides as follows:
(1)A decision is a Part 5-reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is a Part 7-reviewable decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or
(d) the decision is a fast track decision.
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b) the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i)was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii)a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii)a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations—the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
(3)A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a Part 5-reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non-citizen was in immigration clearance; or
(c) was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or
(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).
(3A)A decision under section 137L not to revoke the cancellation of a non-citizen's visa is a Part 5-reviewable decision if the non-citizen was in the migration zone when the decision was made.
(4) The following decisions are Part 5-reviewable decisions:
(a) a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal;
(b) a decision of a delegate of the Minister to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation.
(5)A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b) the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i)an Australian citizen; or
(ii)a company that operates in the migration zone; or
(iii)a partnership that operates in the migration zone; or
(iv)the holder of a permanent visa; or
(v)a New Zealand citizen who holds a special category visa.
(6)A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and
(c) a parent, spouse, de facto partner, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7) A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and
(c) particulars of the relative concerned are included in the application.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7A)A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
(8)A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5-reviewable decision if:
(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i)an Australian citizen; or
(ii)the holder of a permanent visa; or
(iii)a New Zealand citizen who holds a special category visa; and
(c) the Minister has not refused to grant the visa.
(9)A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.

As the applicants’ representative correctly points out in their various submissions, s 338(2) is the relevant subsection to consider in determining whether the Tribunal has jurisdiction to consider the application for review in relation to each of the applicants.
The Tribunal has carefully considered the applicants’ representative’s submissions in relation to the interpretation of s 338(2)(b), including in relation to the meaning of ‘while’ in that subsection and the distinction between the wording of that subsection and other provisions such as that found in s 347(3) which refers to a non-citizen having to be ‘physically present in the migration zone’. The Tribunal agrees that s 338(2)(b) is not worded as specifically as s 347(3) by way of analogy. However, nonetheless the plain wording of s 338(2)(b) that ‘the non-citizen made the application for the visa while in the migration zone’ provides for a requirement that the application is made while the non-citizen is in the migration zone. The requirement is clearly in relation to the grammatical subject of the sentence, the non-citizen visa applicant, and not the application itself. In the Tribunal’s view on a plain reading of the requirement there is no ambiguity. The non-applicant non-citizen for the visa is required to be in the migration zone, Australia, when the visa application is made. There is a Part-5 reviewable decision pursuant to
s 338(2)(b) if the non-citizen made the application for the visa while in the migration zone. The plain wording of the subsection simply does not support the applicants’ representative’s interpretation. As to the submission that ‘previously decided case authority indicates, an application may be ‘made’ in Australia, despite the applicant not present in Australia’ no details are provided as to those previously decided case authorities. In any event, s 338(2), unlike other provisions to which this submission may refer, is not concerned with where the application was made but rather whether the non-citizen made the application while in the migration zone.
Mr Ruwan Tennakoon Mudiyanselage’s evidence to the Tribunal was that he was not present in Australia, the migration zone, at the time of the visa application on 14 May 2019. It follows that the decision to refuse to grant the visa to Mr Ruwan Tennakoon Mudiyanselage is not a Part-5 reviewable decision pursuant to s 338(2). There are no other applicable subsections of s 338 such that the decision is a Part-5 reviewable decision. It follows that the Tribunal does not have jurisdiction in respect of Mr Ruwan Tennakoon Mudiyanselage.
The Tribunal notes that the delegate in their decision indicates that Mr Ruwan Tennakoon Mudiyanselage is entitled to apply to the Tribunal for a review of this decision. However the Tribunal has found that it has no jurisdiction in relation to Mr Ruwan Tennakoon Mudiyanselage. The Department’s statement to the contrary in its decision letter does not affect the Tribunal’s lack of jurisdiction at law.
Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage
The evidence before the Tribunal is that Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage were both physically present in the migration zone on the date of the visa application, 14 May 2021 and on the date of application to the Tribunal, 13 August 2021, such that the application to the Tribunal in respect of each them is an application properly made and the Tribunal does have jurisdiction in relation to each of them. Subsection 338(2)(b) and s 347(2) and (3) of the Act.
As noted by the delegate in their decision and as discussed at hearing one of the secondary visa criteria for the visa that must be met by each of Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage is that they each must be a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (cl 188.311). As Mr Ruwan Tennakoon Mudiyanselage is not the holder of a Subclass 188 visa, Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage do not meet cl 188.311 for the grant of the visa as secondary applicants.
Mr Ruwan Tennakoon Mudiyanselage requested that the Tribunal consider whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage meet the primary visa criteria. The Tribunal indicated its concern about its ability to consider all of the primary criteria in relation to the secondary visa applications. Notably, however, as already canvassed earlier in these Reasons, as can be seen from the delegate’s decision, a copy of which was provided to the Tribunal by the applicants, the delegate also assessed whether Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage could meet the primary criteria for the visa and concluded that cl 188.221, one of the necessary primary criteria to be met for the visa as a primary visa applicant, was not met because no evidence had been provided of either Mrs Indira Sembapperuma Arachchige or Mr Diluk Tennakoon Mudiyansalage being invited by the Minister to apply for the visa. Whilst evidence has been provided to the Tribunal responsive to other of the primary criteria, no further evidence has been provided in this regard such the Tribunal, like the delegate, is unable to be satisfied that one of the necessary primary visa criteria, cl 188.221 is met in relation to Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage.
For the reasons above, Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage do not satisfy either the primary or the secondary visa criteria for the grant of the visa. It follows that the decision to refuse to grant visas to Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage must be affirmed.
DECISION
The Tribunal does not have jurisdiction in relation to Mr Ruwan Tennakoon Mudiyanselage.
The Tribunal affirms the decision not to grant Mrs Indira Sembapperuma Arachchige and Mr Diluk Tennakoon Mudiyansalage Business Skills (Provisional) visas.
Susan Trotter
Member