1417083 (Migration)

[2015] AATA 3288

1417083 (Migration) [2015] AATA 3288 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurinder Singh

CASE NUMBER:  1417083

DIBP REFERENCE(S):  BCC2014/1159069

MEMBER:Antonio Dronjic

DATE:20 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 20 August 2015 at 12:34pm

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 1 October 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).

2. The applicant applied for the visa on 8 May 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).

3. The applicant has made no claims in respect of the primary criteria for the grant of subclass 457 visa. The delegate found that the applicant is not the subject of an approved business nomination under s.140GB and as such does not meet cl.457.223 (4)(a). The delegate proceeded to assess the applicant against the secondary criteria for the grant of subclass 457 visa.

4. The delegate refused to grant the visa on the basis that PIC 4013 for the purposes of meeting cl.457.325 was not met because the visa applicant was affected by a ‘risk factor’ as his student visa was cancelled on 9 May 2014. The delegate considered the applicants submissions as to why the three years exclusion period should be waived but was not satisfied on the evidence that circumstances of this case warrant waiver of the exclusion period.

5. The review applicant, who was represented by a registered migration agent, sought review of the delegate’s decision on 15 October 2014. With the review application, the applicant submitted a copy of the primary decision record.

6. On 26 June 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 20 August 2015.

7. The review applicant appeared before the Tribunal on 20 August 2015 to give evidence and present arguments. He was represented in relation to the review by its registered migration agent.

8. At the commencement of the hearing the applicant’s representative submitted letter from Group Messengers Pty Ltd dated 31 July 2015 outlining the contractual relationship between the review applicant and this company. The representative invited the Tribunal to take oral evidence from Mr Liam Slattery – a person who wrote this letter. I inquired about the relevancy of the proposed evidence and the representative indicated that the witness may give evidence why the review applicant’s student visa should not have been cancelled.

9. I explained the purpose of the hearing and the issues to be considered and in particular the requirements of cl.457.325 and Public Interest Criterion (‘PIC’) PIC 4013. I decided not to take evidence from the proposed witness as I am not reviewing the visa cancellation decision. I indicated that I will consider letter provided by the proposed witness.

10. The applicant confirmed his personal details. He first arrived in Australia in August 2009 as a holder of a Student visa (his wife was the primary visa holder). He is married and has one child. His wife is sponsored by an Australian business, works as a cook and is holding a subclass 457 visa. He has no relatives in Australia who are an Australian citizens, permanent residents or eligible New Zealand citizens.

11. He conceded that he is affected by ‘risk factor’ specified in PIC 4013 as his student visa was cancelled on 9 May 2014. The remaining issue before the Tribunal is to determine whether any of the exceptions in PIC 4013(1) apply to the review applicant.

12. He confirmed that the subclass 457 visa application was lodged on 8 May 2014 and that his student visa was cancelled on 9 May 2014. The Tribunal asked the review applicant 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 invite the Tribunal to take into consideration.

13. He stated that his ‘uncle’ will be adversely affected if he is required to depart Australia. This is a person who is not related to the applicant, who does not have support from his own family and who attends the same Sikh temple. The applicant provided his ‘uncle’ with moral support.

14. He further stated that his son will be affected. I explained to the applicant that I can only take into consideration 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. He conceded that his son is not an Australian citizen or permanent resident.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant satisfies PIC 4013 for the purposes of cl.457.325.

    Relevant law

17. Broadly speaking, PIC 4013 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4013 include circumstances where a person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Act because the person was found by Immigration to have worked without authority.

18. Where an applicant is affected by a ‘risk factor’ as set out in PIC 4013(2), he or she is required to satisfy one of two alternate criteria set out in PIC 4013(1) to meet PIC 4013 as a whole. PIC 4013(1)(a) requires that the application has been made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant.

19. Alternatively, PIC 4013(1)(b) requires that the decision maker is satisfied that, in the particular case, compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the after the cancellation or determination.

    Is the applicant affected by a risk factor for the purposes of PIC 4013?

20. According to the primary decision record submitted by the applicant with his review application, his student visa was cancelled on 9 May 2014 under s.116 or 128 of the Act because the applicant breached work conditions. Based on the evidence before me, including the oral evidence from the applicant, the Tribunal finds that the applicant is affected by a relevant ‘risk factor’ as set out in PIC 4013(2).

    Was the visa application made more than 3 years after the applicant’s departure from Australia: PIC 4013(1)(a) ?

21. According to the primary decision record submitted by the applicant with his review application, the applicant applied for the visa which is the subject of this review on 8 May 2014. Based on the evidence before me, including the oral evidence of the applicant, his subclass 457 visa was cancelled on 9 May 2014. As the subclass 457 visa application was not made ‘more than 3 years after the cancellation of the visa or the determination of the Minister’, the tribunal finds that the applicant does not meet PIC 4013(1)(a).

    Are the waiver provisions in PIC 4013(1)(b) met?  

22. The term 'compelling' is not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’. ‘Compassionate’ means ‘circumstances that invoke sympathy or pity’.

23. The applicant stated that his ‘uncle’ and his son will be adversely affected if he is required to depart Australia. As noted above, his ‘uncle’ is a person who is not related to the applicant, who does not have support from his own family and who attends the same Sikh temple. The applicant provides ‘uncle’ with moral support.

24. He further stated that his son will be affected. I explained to the applicant that I can only take into consideration 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. He conceded that his son is not an Australian citizen or permanent resident.

25. The argument presented to the Department was that Mr Singh’s wife is employed as a Cook at Chawla’s restaurant and the restaurant will ‘lose money’ if the secondary applicant is not granted subclass 457 visa as the primary applicant will have to leave the country if the secondary applicant is not granted a visa.

26. I have also considered letter from Group Messengers Pty Ltd dated 31 July 2015 and not that the letter does not state if and how the applicant’s employer will be affected if he is no longer able to work for the company.

27. I have 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.

28. I consider 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 ‘risk factor, and thereby justifying the grant of the visa during the 3 year period.

29. Whilst I accept that the applicant’s wife may have necessary skills required by her employer and that her employer would be inconvenienced to a certain extent if he had to find another person or persons capable of performing the same job, the Tribunal notes 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.

30. I considered all the relevant circumstances both individually and cumulatively. I am not satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa within 3 years after the cancellation or determination. I am not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa to the applicant within 3 years after the cancellation or determination. Therefore, I am not satisfied that the applicant meets PIC 4013(1)(b) and PIC 4013.

31. It follows that the applicant does not meet cl.457.325. As the review applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Antonio Dronjic
    Member