Ulibas (Migration) - [2019] AATA 5326

Ulibas (Migration) [2019] AATA 5326 (13 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lamberto Ulibas
CASE NUMBER:  1806767
HOME AFFAIRS REFERENCE(S):          BCC2017/2727537
MEMBER:Kira Raif
DATE:13 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 13 August 2019 at 7:27am
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) – Subclass 189 Skilled Independent – resident for 5 years – did not appear at hearing – application made 39 days short of 5 years – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 189.231
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 on 13 March 2018 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa 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.
The applicant is a national of New Zealand, born in April 1962. He applied for the visa on 1 August 2017. The delegate refused the application as the delegate found that the applicant did not meet cl. 189.231 because the applicant had not been resident in Australia for a period of 5 years before the date of the application. The applicant seeks review of the delegate’s decision.
On 19 July 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 12 August 2019. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance withs.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
The criteria for the grant of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ulibas (Migration)

Details

AGLC: Ulibas (Migration) [2019] AATA 5326
Case: [2019] AATA 5326
Decision Date: 13 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ulibas for a Skilled Independent (Permanent) (Class SI) visa, Subclass 189. The applicant sought review of a decision not to grant this visa.

The central legal issue before the Tribunal was whether the applicant satisfied the residency requirement for the Subclass 189 visa, specifically whether they had been a resident in Australia for the requisite five-year period at the time of their application.

The Tribunal noted that the applicant's application was made 39 days short of the five-year residency requirement. As this criterion was not met, the Tribunal found that the applicant did not satisfy the criteria for the grant of the visa. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.