1418961 (Migration) - [2016] AATA 3222

1418961 (Migration) [2016] AATA 3222 (9 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ivon Oliveira Silva
Ms Raquel Pinto Vieira
CASE NUMBER:  1418961
DIBP REFERENCE(S):  BCC2014/1111396
MEMBER:Antonio Dronjic
DATE:9 February 2016
PLACE OF DECISION:  Melbourne
DECISION:The tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 09 February 2016 at 11:12am

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 29 October 2014 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 2 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). 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.
The delegate decided to refuse to grant the visas on 29 October 2014 on the basis that the first named applicant did not satisfy cl.457.211(b)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations) In particular the delegate found that the first named applicant was not the holder of a substantive visa at the time of application and was unable to meet relevant schedule 3 criteria.
The applicants applied to the tribunal on 19 November 2014 for review of the delegate’s decisions. With the application, the applicants enclosed a copy of the primary decision record according to which:
·The first named applicant held a 457 visa that ceased on 30 March 2014. He did not hold a substantive visa at the time of visa application on 2 May 2014.
·On 15 August 2014 a request letter was sent to the applicants giving them an opportunity to address the Schedule 3 criteria.
·On 3 September 2014, the first named applicant responded to the department’s invitation by stating that he delayed his application because his employer was waiting for a Labour Agreement to be approved.
·The delegate was not satisfied that the first named applicant is not a holder of a substantive visa because of factors beyond his control.
On 30 October 2015 the tribunal wrote to the review applicants pursuant to s.359(2) of the act seeking information in writing that the first named visa applicant meets Schedule 3004 for the purposes of cl.457.211 to the Regulations.
On 27 November 2015, after the applicants were granted an extension of time to provide information, the applicants’ representative responded by stating that the applicants seek to rely on information provided to the department.
On 1 December 2015, the tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but…

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 1418961 (Migration)

Details

AGLC: 1418961 (Migration) [2016] AATA 3222
Case: [2016] AATA 3222
Decision Date: 9 February 2016

CaseChat Overview and Summary

In the matter of 1418961 (Migration), the applicant sought a review of a decision by the delegate of the Minister for Immigration and Border Protection not to grant them Temporary Business Entry (Class UC) visas. The dispute arose as the applicants were not holding a substantive visa at the time of application and needed to meet specific criteria under the Migration Regulations to be eligible for the visa. The tribunal was tasked with determining whether the applicants satisfied the criteria outlined in Schedule 3 of the Migration Regulations, specifically under Schedule 3 criteria 3003, 3004, and 3005, to be eligible for the visa.

The tribunal needed to decide whether the first named applicant met the requirements of Schedule 3 criteria 3004(f). This criterion required the applicant to demonstrate that they would have been entitled to the grant of the subclass 457 visa if they had applied for the visa on the day when they last held a substantive visa. The tribunal also needed to assess if the applicants met the criteria for the grant of a Temporary Business Entry (Class UC) visa under cl.457.321 of the Migration Regulations, which required the first named applicant to be the holder of a Subclass 457 visa.

The tribunal concluded that the first named applicant did not meet Schedule 3 criteria 3004(f), as they failed to demonstrate that they would have been entitled to the grant of the subclass 457 visa if they had applied on the day when they last held a substantive visa. The tribunal was satisfied that the first named applicant was not the holder of a substantive visa because of factors beyond their control. However, the tribunal determined that the first named applicant did not meet the primary criteria for the grant of a Subclass 457 visa. Consequently, the second named applicant, who was dependent on the first named applicant for the grant of her visa, did not satisfy the relevant criteria for the grant of a Temporary Business Entry (Class UC) visa.

The tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas, finding that the applicants did not meet the necessary criteria under the Migration Regulations. The tribunal's decision was based on the applicants' inability to satisfy the primary criteria for the grant of a Subclass 457 visa, which was a prerequisite for the grant of the Temporary Business Entry (Class UC) visa. The tribunal's decision was final and not subject to further appeal.

Orders

Orders of the court

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Background

Background to the litigation

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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 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. In the present case, the applicant did not hold a substantive visa at the time of making the visa application, and did not previously hold a Subclass 771 or special purpose visa.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 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 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. The applicants lodged the present application 2 May 2014. The applicants last held a substantive visa on 30 March 2014, when a subclass 457 visa expired. The applicants have since held a bridging visa C in connection with the present subclass 457 visa application. The delegate refused the applications under review on the basis that the first named applicant failed to demonstrate that he came to be a person without a substantive visa because of factors beyond her control. The tribunal considered whether the first named applicant meets criteria contained within cl.3004(f). This criterion requires the applicant to demonstrate that he would have been entitled to the grant of the subclass 457 visa if he had applied for the visa on the day on which the last held a substantive visa on 30 March 2014.

Decision

Reasons for decision

The second named applicant is dependent for the grant of her visa, on the first named applicant satisfying the primary criteria and being the holder of a Subclass 457 visa. Accordingly, the second named applicant does not meet cl.457.321. There is no evidence before the tribunal that the second named applicant meet the primary visa criteria in her own right. Consequently, the second named applicant does not satisfy the relevant criteria for this visa.DECISION The tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.Antonio DronjicMember

Ratio Decidendi

Legal Principle Established

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