1411393 (Migration)
[2015] AATA 3074
•6 July 2015
1411393 (Migration) [2015] AATA 3074 (6 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ravinder Kumar
CASE NUMBER: 1411393
DIBP REFERENCE(S): BCC2014/899796
MEMBER:Nicole Burns
DATE:6 July 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 06 July 2015 at 4:16pm
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 Immigration on 17 June 2014 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 2 April 2014. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that in considering Schedule 3 criterion 3004, the delegate was not satisfied that the circumstances leading to him being in Australia without a substantive visa were beyond his control, which is required in PIC 3004(c).
The applicant appeared before the Tribunal on 23 April 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. He participated in the hearing via the telephone.
During the review stage the Tribunal has received written submissions from the representative and supporting documents, which it has taken into account in reaching its decision where relevant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the visa applicant satisfies the requirement of Schedule 3 criterion 3004 for the purposes of cl.457.211.
Does the applicant satisfy the relevant Schedule 3 criteria?
Relevantly to this matter, cl.457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl.457.211 so long as the last substantive visa they held was not one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
According to Departmental records, the last substantive visa the applicant held was a Skilled Graduate (Subclass 485) visa granted on 2 November 2010 which ceased on 2 May 2012. The applicant has held various bridging visas since that time. The applicant confirmed that was the case at the Tribunal hearing.
As the applicant did not hold a substantive visa at the time of decision, and did not previously hold a Subclass 771 or special purpose visa, he must satisfy additional Schedule 3 criteria, discussed below.
Is criterion 3003 met?
Criterion 3003 applies to certain applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant, or were on 31 August 1994 the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.
Is criterion 3004 met?
Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.
It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant. In addition, the Tribunal must be satisfied that: the applicant would have been able to satisfy the criteria or be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; that the applicant intends to comply with any conditions of the visa; and that, if the last visa (if any) held by the applicant was a transitional (temporary visa), that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
Would have been entitled to be granted a visa: 3004(f)
The Tribunal has first considered whether the applicant would otherwise qualify but for Schedule 3 criteria (3004(f)). Specifically, this requires that the Minister is satisfied that the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa (3004(f)(i)).
The Tribunal accepts on the evidence before it that the last substantive visa the applicant held was a Skilled Graduate (Subclass 485) visa granted on 2 November 2010 which ceased on 2 May 2012. On 18 April 2012 the applicant applied for a Skilled (Residence) (Subclass 885) visa and remained in Australia on a bridging visa associated with this application. The applicant withdrew his Subclass 885 visa application on 1 April 2014 because he was unable to reach the requisite English language scores. The applicant applied for the Subclass 457 visa on 2 April 2014, whilst his bridging visa was still in force.
When this matter was discussed at the hearing the applicant said he was entitled to be granted the visa at the relevant time because he held a substantive visa. He acknowledged that he was not the subject of an approved nomination at that time because he had applied for a Subclass 885 visa and had been focused on meeting the English language requirements. He said that the nomination was applied for at a later date in relation to the 457 visa application and the sponsor was an approved standard business sponsor at the time he last held a substantive visa, so he could have applied for nomination at that time and he would have been approved.
The representative submitted at the hearing that if there is a sponsorship in place, the visa application is viable. He said that in practice he is often contacted by case officers who request a new nomination if it has expired. He submitted that the significant document in the legislative scheme is the sponsorship one, with the nomination seen more as facilitative action not determinative. The representative also referred to Departmental policy in relation to 457 visa applicants who are former onshore students which allows them to go forward. Although the visa applicant’s situation was slightly different because he withdrew his (Subclass 885) application instead being refused, the representative stated that the policy seems to encourage those ‘stuck’ as long term graduates to find other mechanisms.
The representative expands upon his oral submission about this issue in a written submission the Tribunal received on 22 May 2015, relevantly contending that:
·The applicant would have been entitled (in the sense “eligible for”) a subclass 457 visa at the time he held his last substantive visa, because he had been working as a chef in Melbourne and could easily have been sponsored by an approved standard business sponsor (SBS). The applicant’s current sponsor - Rococo Hawthorn - was an active sponsor and had sponsored five cooks in 2012;
·The language of the provision is ambiguous, in particular the use of the conditional ‘would have been entitled’ creates a hypothetical situation which invites the interpolation of certain unreal factors and leaves open the question of whether a relevant nomination had been applied for or not;
·It is noted that the role that nomination plays in 457 visa procedures is not adequately addressed in many parts of the legislation and the MRT’s own current interpretation of the Act in Minister for Immigration v Lee [2014] FCCA 2881 (Lee’s case) clearly indicates a critical issue for the Act is whether the sponsor is an approved sponsor;
·A purposive approach should be taken in interpreting criterion 3004(f)(i) (referring to section 15AA of the Interpretation Act 1901.[1]) The purpose of the regulation could be therefore be determined by the words, the context, the subject matter, the effects and consequence, or the spirit and purpose of the law; and
·Departmental policy states that the purpose of Schedule 3 criteria is also to “encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa ceases”. As indicated in Departmental policy, 3004(c) – (h) include subjective elements as follows:
A decision on whether an applicant satisfies these criteria will not necessarily be clear cut or beyond dispute and a decision maker will need to exercise judgement, assess all the circumstances of the applicant against the meaning and intention of the criteria, and form an opinion as to whether the criteria are satisfied.
[1] In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The Tribunal has considered the submissions of the representative in respect of the operation of PIC 3004(f)(i). On its face it appears to set a difficult task, because it requires a decision maker to consider retrospectively – by reference to the last day on which an applicant held a substantive visa – whether the applicant would have satisfied all the criteria for the grant of a visa. However, the Tribunal does not agree with the representative’s submission that a person can satisfy criterion 3004(f)(i) by demonstrating simply that he would have been able to lodge an application on the relevant day even if the application may ultimately be refused or found to be invalid.
The Tribunal has considered the representative’s specific submission that on the last day the applicant held a substantive visa his current employer was approved as a standard business sponsor and had sponsored five cooks in 2012, and the applicant, having worked as a chef in Melbourne, could have easily been sponsored by an approved SBS. The Tribunal accepts that had the applicant found his current employer prior to the expiry of his last substantive visa in May 2012, it is possible that they would have agreed to sponsor him. The Tribunal acknowledges in this regard a letter of support provided by the employer’s accountant who attests that the applicant has become an asset, that they have invested significantly in training him, and that it would be an unfortunate situation if they were to lose him. However, as discussed at the hearing, the applicant did not commence working for Rococo Hawthorn until 31 March 2014, some 22 months after his substantive visa ceased. The fact that Rococo Hawthorn was already an approved sponsor and the applicant worked as a chef/cook (for other restaurants) does not alter this fact.
The Tribunal has also had regard to the representative’s submission to take a purposive approach to interpreting criterion 3004(f)(i) and reference to Departmental policy, which he argues, appears to encourage 457 applicants, who are former onshore students to find other mechanisms. Whilst that may be the case to a certain extent, the Tribunal also notes that the policy rationale behind criterion 3004 is to make sure that an applicant, who has remained in Australia without a substantive visa, does not gain an unfair advantage over persons who have been in Australia on a substantive visa or visas. For example, a person could be considered to have gained an unfair advantage over other applicants if they complete an educational qualification or they gain work experience in Australia, while they hold a bridging visa, and they use the education or work experience to claim points for a skilled visa. In the present case, it was only because the applicant remained in Australia for almost 2 years after the expiry of his last substantive visa that he was able to secure a job at Rococo Hawthorn.
In considering criterion 3004(f)(i), the Tribunal has also had regard to the matter of Quan v MIMAC [2013] FCCA 1254 (Judge Emmett, 2 September 2013) (Quan’s case), which held that the Tribunal was correct in finding the applicant did not meet criterion 3004(f)(i) because she did not have an Australian business proposing to employ and sponsor her on the day on which she last held a substantive visa. As such, it was not necessary for the Tribunal to consider whether there were compelling reasons for granting the visa pursuant to cl.3004(d) given the applicant was unable to satisfy all the mandatory criteria necessary for the grant of the 457 visa.
In his written submission to the Tribunal the representative contends that Quan’s case is distinguishable from the present case, advancing the following key arguments:
·As the Court in Quan’s case gave little consideration to the issue of whether the applicant satisfies criterion 3004(f)(i), it does not provide clear authority on the present case and should only be considered as obiter. Specifically, in Quan’s case the Court conceded that it was open for the Tribunal to make its findings that the applicant would not have been entitled to the grant of the 457 visa on the day they last held a substantive visa because they did not have the sponsorship required for the grant of the 457 visa, but the Court does not clearly indicate whether it is referring to the compelling circumstances argued in that case or to the issue of whether the applicant was entitled to be granted a 457 visa at the time the applicant last held a substantive visa;
·The present case is distinguishable from Quan’s case because the sponsor was an approved SBS sponsor at the relevant time (and therefore had a nomination been required, it would have been possible for such a nomination to be lodged on the applicant’s behalf);
·It does not appear than an alternative view of clause 3004(f) that it is to be interpreted in an ambulatory fashion, mutatis mutandis, was ever considered in Quan’s case, although it may be assumed the drafters of Schedule 3 were more concerned about whether applicants were in fact entitled to have access to a visa scheme rather than having a specific nomination at a relevant time; and
·The more recent Federal Circuit court decision in Lee’s Case clearly indicates the difference between a sponsorship and a nomination. Therefore, Quan’s case should be interpreted in that light, or is in fact of questionable authority if the distinction has not been applied.
The Tribunal has had regard to these submissions that Quan’s case is distinguishable from the present case, and that it does not provide clear authority on the present case. Nonetheless, in the present case, the evidence before the Tribunal is that even though at the time when the visa applicant’s last substantive visa expired his business sponsor was an approved SBS, the applicant was not yet employed by his business sponsor and the relevant nomination application had not yet been lodged (or approved). The Tribunal notes further that whether or not the employer was an approved standard business sponsor at the relevant time was not material to the finding that there was no ‘sponsorship’ in respect of the visa applicant at the relevant time, which is the same in the present matter.
With respect to the representative’s submission that the recent Court decision in Lee’s case indicates the difference between a sponsorship and a nomination, the Tribunal agrees and notes that Lee’s case, which dealt with the issue of 457 jurisdiction for the Tribunal, actually makes clear that the nomination is relevant, finding that the Tribunal has jurisdiction to consider a review of 457 visa application only if the related nomination is approved (under s.140GB of the Act) and current.
The Tribunal notes that in his submission the representative also referred to an approach taken by the Tribunal (differently constituted) in a decision dated 8 April 2015, where the Tribunal resorted to basic statutory interpretation principles in interpreting schedule 3 and found that the relevant provisions had no practical application on the facts before him. The Tribunal notes in this regard that whilst consistency in decision making is desirable, it is not bound by other Member’s decisions. Even so, the facts of that case can be distinguished from this one, given that in the present case the applicant was not even employed by the sponsor until 22 months after the last day he held a substantive visa, as discussed. Therefore it could not be found that the applicant had at the relevant time the requisite level of support and sponsorship from the business sponsor as found in the differently constituted case.
It follows from the reasoning in Quan’s case that, given these particular circumstances of this case – i.e. that the applicant was not yet employed by his business sponsor and the relevant nomination application had not yet been lodged (or approved) at the time he last held a substantive visa – the applicant would not have satisfied cl.457.223 (which includes the requirement for there to be an approved nomination) if he had applied for the visa on the day when he last held a substantive visa. He therefore does not meet cl.3004(f)(i). As there is no evidence that the visa applicant entered Australia unlawfully, cl.3004(f)(ii) does not apply. It follows that the applicant does not meet cl.3004(f) and therefore does not meet cl.3004 in its entirety. As such, it also follows that the applicant does not meet cl.457.211(b).
Given these findings, it is not necessary to consider the applicant’s claims and evidence in relation to the remaining criteria under cl.3004.
CONCLUSION
As the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Nicole Burns
MemberATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii) each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii) the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea)if:
(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
0
2
0