1414545 (Migration)

[2015] AATA 3738

1414545 (Migration) [2015] AATA 3738 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rupinder Singh Madaharh
Mrs Amandeep Kaur Gill
Mrs Angelpreet Kaur Madaharh

CASE NUMBER:  1414545

DIBP REFERENCE(S):  BCC2014/519578

MEMBER:Antonio Dronjic

DATE:24 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 24 November 2015 at 5:03pm

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 on 8 August 2014 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 28 June 2013. 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 primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that cl.457.224 was not met because the first named applicant did not meet Public Interest Criterion 4013 (PIC 4013). The delegate found that the first named applicant was affected by ‘risk factor’ as his previously held student visa subclass 572 was cancelled on 30 January 2012. The delegate further found that presented compelling and compassionate circumstances did not justify granting of the visa within the three years after the visa cancellation.

4. The applicants applied to this Tribunal on 26 August 2014 for review of the primary decision. They were represented in relation to the review by their registered migration agent. With the review application, they submitted a copy of the primary decision record.

5. On 26 August 2015, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their applications but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 24 November 2015.

6. On 23 October 2015 the applicants’ representative submitted the Nomination Approval Notice issued by the Department on 22 October 2015 as evidence that the first named applicant was nominated for the position of a Transport Company Manager (ANZSCO 149413) by Australian Worldwide Export Import Pty Ltd with the base rate of pay of $55,000.

7. The applicants appeared before the Tribunal on 24 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

8. This is the summary of the first named applicant’s oral evidence:

9. The applicant is 36 years of age male national of India. He is married and has one child. His brother and parents live in India. Prior to arriving in Australia he studied a Bachelor of Arts course in India and completed two years. He worked as a motor mechanic for a period of 12 months.

10. He came to Australia in May 2008 as a holder of a Student visa subclass 572. By late 2010 he had completed Diploma in Automotive and Diploma of Management. He was enrolled into an Advanced Diploma in Management but the enrolment was cancelled by his education provider in February 2011. On 30 January 2012 his student visa was cancelled by the department.

11. On 2 August 2012 the applicants were granted subclass 485 visa. They applied for the current visa on 28 June 2013. The applicant stated that he lodged an of shore application for permanent residency under the employer nomination scheme (ENS) and that ENS nomination was approved by the Department in August 2015. He is awaiting the outcome of his permanent residency visa application.

12. The Tribunal explained to the applicants requirements of PIC 4013. The Tribunal noted that, according to the first named applicant’s evidence, his visa was cancelled on 30 January 2012 and he is therefore affected by the risk factor mentioned in PIC 4013(2).

13. The Tribunal asked the applicants if there are any compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand that he would like the Tribunal to take into consideration.

14. The first named applicant stated that his employer will be adversely affected if he is no longer able to work for the nominating business. His employer has taken over several 7/11 stores and has no time to look after transport business. He stated that he works as a Managing Director and if he is not allowed to stay in Australia the business will close and 22 drivers will lose their jobs.

15. I noted that no documentary evidence in support of this claim was provided to the Tribunal. I noted that position of a Transport Manager is not so unique and inquired why his employer would not be able to recruit another person for this role. He stated that his employer trusts him and no other person.

16. He further stated that he has two cousins living in Australia. One of them is an Australian citizen and the other an Australian permanent resident. I asked the applicant how will they be affected is the applicant and his family are no longer entitled to stay in Australia. He stated that they will be affected as they are family. The applicant and his cousins do not live together but they are neighbours. The applicant stated that he purchased a house in South Morang. I noted that no evidence of this relationship was provided to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the first named applicant meets the requirements of PIC 4013 for the purposes of cl.457.224. The issues in this case are therefore:

    ·whether the first named applicant is affected by a risk factor mentioned in PIC4013; and if so,

    ·Whether compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen justify the granting of the visa within 3 years after that event.

19. One of the ‘risk factors’ referred to by PIC 4013 is if a visa previously held by the person was cancelled under s.137J of the Act: PIC 4013(2A).

20. The applicants provided the Tribunal with a copy of the Department’s decision record.  This indicates that the first named applicant’s Subclass 572 student visa was cancelled on 30 January 2012. This was confirmed by the first named applicant in his oral evidence given at the hearing.

21. Based on the evidence before it, the Tribunal finds that the first named applicant’s visa was cancelled under s.137J of the Act on 10 January 2012 and he is therefore affected by the risk factor mentioned in PIC 4013(2A) as he applied for subclass 457 visa on 28 June 2013 which is less than 3 years after cancellation.

22. The second circumstance in which PIC4013 can be satisfied where an applicant is affected by a risk factor is provided for in PIC4013(1)(b).  It requires that in the applicant’s particular case there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen so as to justify the granting of the visa within 3 years of the cancellation.

23. The first named applicant submitted that his employer will be adversely affected if he is not allowed to stay in Australia and continue his employment. He claimed that the business will close and 22 drivers employed by the business will lose their job. Firstly, I do accept the first named applicant’s claim advanced at the hearing that he works as a Managing Director of the sponsoring business. The applicant’s representative submitted a copy of the Nomination Approval Notice issued by the Department on 22 October 2015 as evidence that the first named applicant was nominated for the position of a Transport Company Manager by Australian Worldwide Export Import Pty Ltd.

24. Secondly, I am not satisfied that a position of a Transport Manager is a highly skilled position and that the alternative person cannot be recruited from the labour market. The first named applicant has failed to provide documentary evidence in support of his claim that the sponsoring business unsuccessfully advertised for this position in the past. The Tribunal did not receive evidence from the first named applicant’s employer supporting the applicant’s claim that the business will close if he no longer works for it. He presented no evidence as to why it is difficult to find an employee with the same or similar set of skills in Australia.

25. Whilst I accept that the first named visa applicant has necessary skills required by his employer and that his employer would be inconvenienced to a certain extent if he had to find another person or persons capable of performing the same job, I have considered that the cost to the business of recruiting, training and replacing a staff member was an ordinary aspect of the operation of almost all business which occurred on an ongoing basis.

26. I accept that the sponsoring business may face short term difficulty in replacing a valued employee such as the first named applicant, but the evidence does not suggest that the business will thereby become untenable, or any other consequence that the Tribunal considers would amount to a compelling circumstance affecting the interests of Australia, or a compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen.

27. The first named applicant further claimed that he has two cousins living in Australia, one of them an Australian citizen and the other an Australian permanent resident. The applicant has failed to explain how will they be adversely affected if he is no longer allowed to stay in Australia save for stating that they are his family. He gave evidence that he does not live with his cousins but they are neighbours. No documentary evidence confirming the existence of this relationship or residential status of his cousins was submitted to the Tribunal.

28. Even if I accept the existence of these relationships and that his cousins may be inconvenienced if the applicant and his family are required to depart Australia, I am not satisfied that these circumstances reach an appropriate threshold as to amount to compassionate or compelling circumstances affecting the interests of Australian citizens, Australian permanent residents or eligible New Zealand citizens that would justify granting of the visa within 3 years after the cancellation. I note that the applicant has lodged an of shore application for permanent residency visa based on nomination made by the same business and that ENS nomination was approved by the department in August 2015.

29. The Tribunal has had regard to Departmental policy pertaining to the discretion to grant a visa during the ‘exclusion period.’[1] The Tribunal is not bound by the policy, and recognises that the examples offered in the policy are neither determinative nor exhaustive of the circumstances in which the discretion may be exercised. 

    [1] Procedures Advice Manual – Migration Act – Compliance and Case resolution – Cancellation – PAM – Exclusion Periods – Items 26-30.

30. The Tribunal has considered the applicant’s circumstances and the circumstances of his employer to the extent that they are known to it. The Tribunal considers that the language adopted in the Regulations of ‘compelling’ and ‘compassionate’ require a degree of gravity that is not demonstrated in the evidence before me in order to disregard the operation of the effective ‘exclusion period’ that is intended to apply in the ordinary case where a person is the subject of a visa cancellation, and thereby justifying the grant of the visa during the 3 year period.

31. The Tribunal has considered all the relevant circumstances both individually and cumulatively. The Tribunal is not satisfied that compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen justify the granting of the visa within 3 years after the cancellation. The Tribunal finds that the second circumstance in which PIC 4013 can be met where an applicant is affected by a risk factor is not met, and that PIC4013 is therefore not satisfied.

32. As PIC 4013 is not satisfied, the first named applicant does not meet cl.457.224 of Schedule 2 to the Regulations. This is an essential criterion for the grant of the visa, and the Tribunal therefore affirms the decision to refuse to grant the first named applicant the subclass 457 visa.

33. The second and the third named visa applicants are dependent for the grant of their visa, on the first named applicant satisfying the primary criteria and being the holder of a Subclass 457 visa. There is no evidence before the Tribunal that the second and the third named visa applicants meet the primary visa criteria in their own right.  Consequently, the second and the third named visa applicants do not satisfy the relevant criteria for this visa.

    DECISION

34. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Antonio Dronjic
    Member