1417209 (Migration)

[2015] AATA 3076

1417209 (Migration) [2015] AATA 3076 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Yuen Ting PUN
Miss Xiaoqing Hu

CASE NUMBER:  1417209

DIBP REFERENCE(S):  BCC2014/1590435

MEMBER:Dione Dimitriadis

DATE:10 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2015 at 3:32pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 28 June 2014.

3. At the time the visa 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). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 7 October 2014 on the basis that the first named applicant (the applicant) did not meet cl.457.211 because the applicant did not satisfy Schedule 3 criterion 3004.

5. The applicants appeared before the Tribunal on 8 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The records of the Department of Immigration and Border Protection (the Department) indicate that the applicant’s last substantive visa was a Subclass 417 (Class TZ) Working Holiday visa which was granted on 20 March 2013 and ceased on 7 April 2014. 

9. In the visa application, the applicant stated that she was born in Hong Kong SAR in 1984. The applicant is a national of Hong Kong SAR of PRC. The applicant stated that her sponsoring employer (the sponsor) is Tastier Food Pty Ltd.  

10. The applicant provided to the Department a number of documents including copies of a letter of offer from the sponsor for the position of Accounting Officer dated 30 May 2014, the applicant’s academic results and her curriculum vitae.

11. On 25 July 2014 the Department wrote to the applicant and requested that she provide information to address Schedule 3 criteria including information that she is not the holder of substantive visa because of factors beyond her control and evidence that there are compelling reasons for granting the visa.

12. On 16 September 2014 the Department received from the applicant’s representative the approval of a nomination by the Department for the position of Accountant (General) by Tastier Food Pty Ltd in relation to the applicant.

13. The delegate refused to grant the visa because the applicant did not satisfy Schedule 3 criterion 3004 and did not meet cl.457.211. The delegate stated that the applicant did not respond to the request for information about whether she met the Schedule 3 criteria. 

14. At the time of lodging the application for review with the Tribunal on 17 October 2014, the applicant provided a copy of the delegate’s decision record.

15. On 7 May 2015 the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited her to provide comments on, or a response to, information that she applied for the Subclass 457 visa on 28 June 2014 after her previous substantive visa ceased on 7 April 2014.

16. On 21 May 2015 the Tribunal received a letter from the representative who stated that the applicant made an application for a “Subclass 573 visa” (sic) on or about 6 April 2014 before the Subclass 417 visa ceased. The representative stated that the applicant cannot recall the exact date that she made the application but she is confident that it was before the Subclass 417 visa ceased. Later in May 2014 the applicant’s employer was willing to sponsor her for a working visa, so the applicant applied for a Subclass 457 visa on 28 June 2014 and withdrew her application for a Subclass 573 visa.

17. On 1 July 2015 the Tribunal received a letter from the representative who stated that the applicant lodged an application for a Subclass 573 visa on or about 6 April 2014. The representative stated that the applicant’s Working Holiday visa (Subclass 417) ceased in “May 2014” (sic). Later in May the applicant’s employer told the applicant that it was willing to sponsor her for a working visa. On 28 June 2014 the applicant applied for a Subclass 457 visa. The applicant’s former migration agent advised her that depending on whether she wants to study or work, there was no need to go ahead with the Subclass 573 visa. The applicant withdrew the Subclass 573 application. 

18. The representative stated that the applicant was not the holder of a substantive visa at time of application because her former migration agent did not advise her of this requirement. The applicant did not have knowledge of immigration law and was reliant on her former migration agent. The applicant received notification from her employer after her substantive visa expired but her former migration agent advised her that she could proceed with the Subclass 457 visa application and that there was no need to go ahead with the Subclass 573 visa application. The applicant lodged her Student visa application before her last substantive visa ceased. It was likely that her Student visa would have been granted so she could study in Australia. However, due to the advice from her former migration agent, she withdrew her Student visa application and applied for a Subclass 457 visa after her last substantive visa expired.

    The Tribunal hearing

19. The Tribunal informed the applicant of the Regulatory requirements.

20. The applicant stated that she is not working. Her last substantive visa was a Working Holiday visa which ceased on 7 April 2014. She did not apply for a Subclass 457 visa until 28 June 2014.  The Tribunal informed the applicant that she was not the holder of a substantive visa at the time she applied for a Subclass 457 visa and she has to meet Schedule 3 criterion 3004.

21. As to whether there are compelling reasons for granting the visa, the applicant stated that she has found a job that she loves to do and she has found a company that is willing to sponsor her. She met her partner in Australia and would like to stay. Her partner, the second named applicant, was on a Student visa and is now on a bridging visa. The applicant stated that the company applied for the Subclass 457 visa on her behalf. She had applied for a Student visa and her former agent told her that she did not have to wait for the Student visa to be granted. The applicant trusted the former agent. She asked the former agent three times before she applied for the Subclass 457 visa and she was concerned that there would be an issue because she did not hold a substantive visa. The former agent told her that there would not be an issue.

22. The applicant did not think of ringing the Department and talking to the Department about her concerns. She trusted the former agent and believed that she could help the applicant. The applicant was not sure about the law.

23. The Tribunal brought to the applicant's attention that because she was not the holder of a substantive visa at the time she applied for a Subclass 457 visa she has to satisfy Schedule 3 criterion 3004.

24. The Tribunal informed the applicant that it has to be satisfied that she is not the holder of a substantive visa because of factors beyond the applicant's control. The applicant stated that she trusted the former agent until the visa was refused.  She did not consider going to her home country and applying offshore because she had a company that was willing to sponsor her and the company wanted her to start as soon as possible. The applicant did not want to go offshore to apply.

25. The Tribunal brought to the applicant's attention that she applied for a Subclass 572 visa not a Subclass 573 visa. The applicant stated that she knows that she applied for a Student visa. The Tribunal informed the applicant that she applied for a Student visa but withdrew that application.

26. The applicant stated that she complied with the conditions of previous substantive visa and bridging visas she has held. Her partner has work rights and is supporting the applicant. The applicant does not have work rights on her Bridging C visa. The applicant has not worked for the sponsoring employer since July 2014.

27. The second named applicant gave evidence that she went to the former agent with the applicant to ask about what the requirements were for applying for a Subclass 457 visa. The applicant had applied for a Student visa. The second time, they went to the former agent and asked for detailed information. The third time they went to the former agent, the Student visa had not yet been granted and they were told not to worry and the applicant could apply for a Subclass 457 visa and that is why they lodged the application. The second named applicant stated that she lives with the applicant and supports her financially. The second named applicant works at the Chef’s Gallery restaurant.

28. The issue in the present case is whether the applicant meets the requirements of cl.457.211 and Schedule 3 criterion 3004.

    Does the applicant meet Schedule 3 criterion 3004?

29. 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 an applicant does not hold a substantive visa at time of application, the applicant must satisfy certain criteria, including Schedule 3 criterion 3004.

30. Schedule 3 criterion 3004 requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond 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 that were 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 she last held a substantive or criminal justice visa or last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and that the last visa or entry permit held (if any) 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.  (Schedule 3 criterion 3004 is extracted in the attachment to this decision.)

31. In the present case, the applicant did not hold a substantive visa at the time of making the visa application. Her last substantive visa was a Subclass 417 visa which ceased on 7 April 2014. The applicant did not apply for the Subclass 457 visa (the subject of this review) until 28 June 2014. Therefore at the time the applicant applied for a Subclass 457 visa, she did not hold a substantive visa. 

32. The Tribunal is satisfied that the applicant ceased to hold a substantive visa on or after 1 September 1994. The applicant meets Schedule 3 criterion 3004(a). The applicant therefore must meet Schedule 3 criterion 3004(c) – (h).

33. The Tribunal will firstly consider whether there are compelling reasons for granting the visa. The applicant gave evidence that she met her partner here and wants to stay in Australia. Her partner, the second named applicant, is from China and was previously on a Student visa and is currently on a bridging visa. The applicant has a sponsor that is willing to sponsor her and the sponsor wants her to start as soon as possible. The applicant also stated that she was given incorrect advice by her former migration agent.

34. The Tribunal has considered this evidence but is not satisfied that having an employer that wants to sponsor the applicant is a compelling reason for granting the visa. The applicant has not worked for the sponsor since July 2014. The Tribunal is not satisfied that the applicant’s work is so crucial to the sponsor’s business that it represents a compelling reason for the grant of the visa. 

35. The Tribunal is not satisfied that mere employment in the occupation, or the employer's support for such employment, gives rise to compelling reasons for the grant of the visa. The Tribunal considers that recruiting, training and replacing staff members is a normal aspect of the operation of almost all businesses, and this occurs on an ongoing basis, and does not constitute compelling reasons.

36. The Tribunal has also considered the applicant’s evidence about her partner and that she does not want to leave her in Australia. Both the applicant and the second named applicant were in Australia on temporary visas and now hold bridging visas. The Tribunal is of the view that neither could have had an expectation that they would be able to remain in Australia on a permanent basis. The Tribunal does not accept that having met one’s partner in Australia is a compelling reason for the grant of the visa.

37. The Tribunal has considered the claim about the former migration agent. Whilst the applicant may have been given incorrect advice by her former agent, the Tribunal is not satisfied that this is a compelling reason for the grant of the visa.

38. The Tribunal has considered the applicant’s claims individually and cumulatively. The Tribunal does not accept, on the evidence before it, that there are compelling reasons for granting the visa. The applicant therefore does not meet Schedule 3 criterion 3004(d).

39. The Tribunal has also considered whether the applicant was not the holder of a substantive visa at time of application for the Subclass 457 visa because of factors beyond the applicant's control.

40. Submissions were made by the applicant that she applied for a Student visa before the Subclass 417 visa ceased. Her employer was willing to sponsor her for a Subclass 457 visa and the applicant spoke with her former migration agent who indicated to her that there would be no issue and that she could apply for a Subclass 457 visa and not wait for the Student visa to be decided. The applicant withdrew her Student visa application.  

41. The Tribunal has had regard to the judgment in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 of Smith FM who referred to a judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162 and stated at paragraph 17:

    The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring.  The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person.  A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.  A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision. 

42. The Tribunal has considered whether the applicant might have been able to do something to prevent the relevant event occurring. Was the applicant able to do something so that she applied for the Subclass 457 visa before her previous substantive visa ceased? The Tribunal is of the view that the applicant could have contacted the Department to inquire about lodging a visa application when she did not hold a substantive visa. She could have enquired of the Department as to whether withdrawing her Student visa application would impact on further applications in Australia. She had been in Australia since April 2013 and she could have, during that time, looked for a sponsor and applied for a Subclass 457 visa before her previous substantive visa ceased. The Tribunal considers that applying for a Subclass 457 visa before her previous substantive visa ceased was something that was within the applicant’s control in that she could have found a sponsor and indeed she was already working for the sponsor as an accounting officer.

43. The Tribunal does not accept that failure to lodge the Subclass 457 visa application, before her previous substantive visa ceased, was a factor beyond the applicant’s control. The Tribunal is satisfied that lodging the visa application before the previous substantive visa ceased was within the control of the applicant. The Tribunal has considered the evidence and is not satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control. The Tribunal is therefore not satisfied that the applicant meets the requirements of Schedule 3 criterion 3004(c).   

44. As the applicant does not meet Schedule 3 criterion 3004(c) and (d) she does not meet Schedule 3 criterion 3004. It is therefore unnecessary to decide whether she meets the other criteria in Schedule 3 criterion 3004. The Tribunal finds that the applicant does not meet cl.457.211(b)(ii). The Tribunal therefore finds that the applicant does not meet cl.457.211 at the time of application.

45. For the reasons given above, the Tribunal is not satisfied that the applicant satisfies cl.457.211 of Schedule 2 to the Regulations.

46. There is no evidence before the Tribunal that the second named applicant meets the primary criteria for the grant of the visa. The second named applicant does not meet cl.457.321 which has to be satisfied at time of decision. The second named applicant is not a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

47. The Tribunal must affirm the decision under review.

    DECISION

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

    Dione Dimitriadis

    
    

    Member

    ATTACHMENT  -  CLAUSE 457.211 AND SCHEDULE 3 CRITERION 3004

    457.211

    If the applicant is in Australia at the time of application:

    (a)      the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

    (b)      if the applicant does not hold a substantive visa at the time of application:

    (i)      the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

    (ii)      the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

    Note Special purpose visa is defined in subsection 5(1) of the Act.

    3004

    If the applicant:

    (a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d) there are compelling reasons for granting the visa; and

    (e) the applicant has complied substantially with:

    (i) the conditions that apply or applied to:

    (A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B) any subsequent bridging visa; or

    (ii) the conditions that apply or applied to:

    (A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B) any subsequent bridging visa; and

    (f) either:

    (i) in the case of an applicant referred to in paragraph (a) — 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 or criminal justice visa; or
    (ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g) the applicant intends to comply with any conditions subject to which the visa is granted; and
    (h) 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 a further entry permit, while the holder remained in Australia.