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

1. 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.

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. 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 delegate refused to grant the visa because the applicant did not satisfy cl.189.231. Essentially, that clause requires that the applicant must be usually resident in Australia for a continuous period, starting on or before 19 February 2016, for at least 5 years immediately before the date of the application.

7. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

   Does the applicant meet the residence requirements?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application on 1 August 2017 and the relevant five year period is between 1 August 2012 and 31 July 2017. The primary decision record indicates that the applicant entered Australia on 8 September 2012. He has not been physically present in Australia for the requisite five years. There is also no evidence to satisfy the Tribunal that prior to his entry to Australia, the applicant was resident in Australia or that he had established his ‘usual abode’ in Australia. There is no evidence that would satisfy the Tribunal that the applicant was usually resident in Australia prior to his entry to Australia on 8 September 2012.

9. The Tribunal is not satisfied that the applicant had been usually resident in Australia for a continuous period of at least 5 years immediately before the date of the application. The Tribunal is not satisfied the applicant meets cl. 189.231.

10. In his submission to the Tribunal of 19 March 2018 the applicant concedes that he entered Australia on 8 September 2012 and made his application on 1 August 2017, which was 39 days short of the required 5 year period of continuous residence. The applicant refers to his settlement in Australia and his employment. The Tribunal acknowledges that evidence but has no discretion to waive the residence requirement. The Tribunal has formed the view that the applicant has not been usually resident in Australia for five years before the application was made. The applicant cannot meet the statutory criteria for visa grant and the Tribunal must thus affirm the decision under review.

    Conclusion

11. 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

12. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

    Kira Raif
    Senior Member