1411393 (Migration) - [2015] AATA 3074

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…

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 1411393 (Migration)

Details

AGLC: 1411393 (Migration) [2015] AATA 3074
Case: [2015] AATA 3074
Decision Date: 6 July 2015

CaseChat Overview and Summary

The matter before the Tribunal involves a visa applicant contesting the refusal of a Temporary Business Entry (Class UC) visa. The applicant had previously held a Skilled Graduate (Subclass 485) visa, which expired, and has since been on various bridging visas. The Tribunal was tasked with determining whether the applicant met the requirements outlined in Schedule 3 criterion 3004 for the purposes of clause 457.211. Criterion 3004 necessitates that the Tribunal be satisfied the applicant is not holding a substantive visa due to factors beyond their control, there are compelling reasons for granting the visa, and the applicant has substantially complied with the conditions of their last entry permits, substantive visas, and bridging visas. Additionally, the Tribunal must be satisfied that the applicant would have been eligible for the visa on their last lawful entry or last held a substantive or criminal justice visa, intends to comply with the visa conditions, and if the last visa was a transitional visa, it did not contain a condition barring further entry permits while the applicant remained in Australia.

The Tribunal examined the applicant's visa history and the conditions outlined in criterion 3004. The Tribunal concluded that the applicant did not meet the necessary criteria for the grant of a Subclass 457 visa, specifically under Schedule 3 criterion 3004. The Tribunal found that the applicant had not demonstrated that they were unable to maintain a substantive visa due to factors beyond their control or that there were compelling reasons to grant the visa. Furthermore, the Tribunal determined that the applicant had not substantially complied with the conditions of their last entry permits and substantive visas. Consequently, the Tribunal affirmed the decision to refuse the visa application.

The Tribunal's decision affirmed the refusal to grant the applicant a Temporary Business Entry (Class UC) visa, citing the applicant's failure to meet the Schedule 3 criterion 3004. The Tribunal, comprising Nicole Burns, found that the applicant did not satisfy the necessary conditions for the grant of the visa, thus upholding the original decision.

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

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)

Decision

Reasons for decision

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 BurnsMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.