Verma (Migration)

[2019] AATA 5208

Verma (Migration) [2019] AATA 5208 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Anjali Verma
Kamran Hussain
Shanvi Verma
Shristi Verma

CASE NUMBER:  1700011

HOME AFFAIRS REFERENCE:                BCC2015/1011428

MEMBER:Lilly Mojsin

DATE:26 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 26 September 2019 at 3.45pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – applicants are Australian citizens – secondary applicant not member of family unit of person who holds Subclass 187 visa – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.213, Public Interest Criterion 4020

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 April 2015.

3. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.187.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion 4020 (PIC 4020) as required by cl.187.213 for the grant of the visa.

5. The applicant appealed that decision to this Tribunal, attaching a copy of the delegate’s decision to the application for review.

6. The applicants appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal received oral evidence from the applicant and Kamran Hussain, the secondary visa applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the Tribunal hearing the applicant provided copies of her Certificate of Grant of Australian Citizenship and confirmed that she and her two daughters, the third named applicant and fourth named applicant are all now Australian citizens, having been granted citizenship on 9 August 2019.

8. The history of the applicant’s visa applications:

   ·29.6.10 - Anjali Verma applied for a Subclass 886 (Skilled Sponsored) visa with her then husband Shiv Kumar, Shanvi Verma, Shristi Verma

   ·1.4.15 - Anjali Verma applied for a Subclass 187 (Regional Sponsored Migration Scheme) visa, secondary applicants being Kamran Hussain, Shanvi Verma, Shristi Verma, Salaar Hussain and Ayaan Hussain.

   ·12.8.16  - Anjali Verma now Kamran and her daughters granted Subclass 886 (Skilled Sponsored) visa

   ·15.12.16 - Subclass 187 (Regional Sponsored Migration Scheme) visa refused 2 January 2017

   ·9.8.19 - Citizenship acquired

9. The applicant advised that she is pregnant and is shortly awaiting the birth of their child. She has provided information to the Tribunal about the purchase of property and a mortgage, in joint names, by the applicant and her spouse. 

10. The second named applicant sought that the Tribunal exercise its discretion to decide in their favour as there were compassionate and compelling circumstances that affect the interests of Australian citizens. 

11. The Tribunal discussed the effect of the grant of Australian citizenship with the applicants.

    REASONS AND FINDINGS

12. The criteria for a Subclass 187 visa are set out in Part 187 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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

13. The delegate of the Department found that the applicant did not meet cl.187.213(1) as the applicant did not satisfy public interest criteria 4020.

14. The Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations) regulate the “entry into, and presence in, Australia of aliens and the departure and deportation from Australia of aliens and certain other persons”. ... Therefore, it manages the temporary and permanent entry of people into Australia. It is implicit in the object of the Act, being the regulation of the entry and presence in Australia of non-citizens (see s.4), that the Act and Migration Regulations 1994, in terms of requirements for grant of a visa, cannot apply to a citizen and prevents the grant of visa within s.65(1)(iii) of the Act. To grant a visa to a citizen would be acting in excess of the powers granted under the Act.

15. The Tribunal is satisfied that the applicant and her children, the third named and fourth named applicants are Australian citizens and therefore cannot be granted a 187 visa.  

16. Therefore the second named applicant, is the only person who can satisfy the criteria for grant of the 187 visa. There is no evidence before the Tribunal to suggest that the second named applicant met the primary criteria.

17. In regard to the secondary criteria cl.187.311(a) states:

    The applicant:

    (a)  is a member of the family unit of a person (the primary applicant ) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa

18. In the absence of a person who can satisfy the primary criteria, Kamran Hussain, the second named applicant, would not be able to meet cl.187.311 as a ‘member of the family unit of a person who … holds a 187 visa’.

19. The decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Lilly Mojsin
    Member