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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 that 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 scheduled for 8 February 2016.

8. The applicants appeared before the tribunal on 8 February 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing via telephone conferencing.

9. The tribunal welcomed the parties and explained the purpose of the hearing and the issues to be considered. The tribunal commenced by outlining the Schedule 3 criteria relevant to a consideration.

   The first named applicant’s oral evidence

10. In his evidence, the first named applicant confirmed his name and current residential address. He stated that he first arrived in Australia ion 3 January 2006 as a holder of a subclass 457 visa that remained valid until 4 November 2009. On 30 March 2010 he was granted a further subclass 457 visa that remained valid until 30 March 2014.

11. He stated that all paperwork for visa application was done by his employer, G & K O’Connor Pty Ltd and that he was not aware that the 457 visa application was not lodged with the department until 2 May 2014. As with the previous 457 visa applications, he provided all necessary documentation to his employer three months before his visa ceased.

12. He gave evidence that he is still working as a full time employee for G & K O’Connor Pty Ltd and that he only become aware that the visa application was refused by the department in January 2016. He stated that he did not receive a copy of the primary decision record as it was forwarded to an agent who was acting both on his behalf and on behalf of the sponsoring employer. He stated that he did not receive a letter from the department dated 15 August 2014, giving the applicants an opportunity to address the Schedule 3 criteria.

13. He confirmed that the response provided to the department dated 3 September 2014 contains his signature but explained that he neither wrote the response nor understood what was written in the letter. He stated that he trusted his employer.

14. I read the part of the response provided to the department on 3 September 2014, where the first named applicant stated that he delayed his application because his employer was waiting for a Labour Agreement to be approved.

15. He confirmed that he currently holds a bridging visa “C” (BVC) but that he never received the bridging visa grant letter. According to his understanding he was allowed to work for his sponsor as a holder of a BVC.

16. I asked the applicant why he did not apply for a subclass 457 visa on or before 30 March 2014, while he was still holding a substantive visa. He stated that this was out of his control as his sponsor was handling visa applications.

17. I asked the applicant whether there are any compelling reasons for the visa grant and he stated that, together with his wife, he has been living in Australia for ten years; that they are part of the Australian community; that they attend church and do voluntary work. He further stated that he and his wife have no children or relatives in Australia who are Australian citizens or permanent residents.

    The tribunal’s Oral Invitation to Comment on or Respond to Information:  

18. In accordance with s.359AA of the Act, the tribunal informed the review applicants that there was information before the tribunal that would be the reason or part of a reason for affirming the decision that is under review. In summary, the information was:

    ·The tribunal accessed information contained on the Department's Integrated Client Service Environment (ICSE) database. This confirmed that the first named applicant’s original sponsoring employer held the status of a business sponsor from 6 August 2014. Departmental records also indicated that a nomination in relation to the first named applicant had been approved on 3 September 2014. This indicates that, on 30 March 2014, when the first named applicant last held a substantive visa, he was not subject of an approved nomination as his employer was not an approved sponsor.

    ·According to ICSE database, the first named applicant was granted a BVC on 6 May 2014. This bridging visa was the subject to no work condition (8108).

19. I explained why the above information is relevant to the current review applications and consequences if the tribunal relies on the above information. The applicants confirmed that they understood the information, its relevance to the tribunal’s decision and consequences of the tribunal relying on the information.  The tribunal then invited the applicants to comment on or respond to the information and informed them that they could request additional time to do so. Upon their request, the hearing was adjourned for 10 minutes in order to allow the applicant to consult with their representative.

20. The hearing resumed and in her response the applicant provided the following comments and or response:

21. The first named applicant stated that no work condition was lifted by the department on 4 December 2014. He confirmed that he worked for the sponsoring employer between 6 May 2014 and 4 December 2014 but stated that he was not aware that he was not allowed to do so by the condition imposed on his BVC. He added that other people from Brazil continued to work for the company.

22. The first named applicant stated that he had no knowledge that on 30 March 2014, his employer was not approved as sponsor or that he was not subject of an approved nomination.

23. The second named applicant stated that, if they knew that the first named applicant was not allowed to work between 6 May 2014 and 4 December 2014 he would not have done so. She stated that she and her husband have been living in Australia for 10 years; that they have plans for their future and that they made mistake by trusting the sponsoring company.

24. I raised additional issue with the applicants, namely whether the first named applicant is subject of an approved nomination at the time of the tribunal decision and meets cl.457.223 (4)(a). The first named applicant stated that there is a new company, Teys Australia, willing to sponsor and nominate him for a position within their business.

25. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. 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?

28. 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?

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. The question for the tribunal is whether the first named applicant would have been entitled to the grant of a subclass 457 visa on 30 March 2014 when his last substantive visa expired.

35. The application of cl.3004(f)(i) was the subject of judicial consideration in Quan v MIMAC [2013] FCCA 1254 (‘Quan’). In that case, the tribunal (differently constituted) had found that the visa applicant would not have been entitled to a Subclass 457 visa when she last held a substantive visa, as she could not meet the requirements for making a valid application in Item 1223A of Schedule 1, which required that the visa applicant specify the employer by whom they proposed to be employed, and that the application be accompanied by evidence the proposed employer was an approved sponsor or had applied for sponsorship approval. As the visa applicant would have been unable to specify a proposed employer at the relevant time, the tribunal found that she would have been unable to satisfy these requirements. 

36. Relevantly to the present matter, the tribunal went on to find that the visa applicant would also not have been entitled to the grant of a Subclass 457 visa at the relevant time, as she also would not have been in a position to meet various applicable time of decision criteria in Part 457 of Schedule 2, which referred back to the ‘activity specified in the application’ (at [31]). The court found that that for the purposes of cl.457.211(b)(ii), the tribunal was correct in finding that the visa applicant did not meet cl.3004(f)(i) as she would not have been entitled to the grant of a Subclass 457 visa on the day on which she last held a substantive visa, as she did not have the sponsorship required for the grant of a Subclass 457 visa. As such, it was not necessary for the tribunal to consider whether there were compelling reasons for granting the visa pursuant to cl.3004(d).

37. In the present case, the evidence before the tribunal is that at the time when the first named applicant’s last substantive visa expired, no sponsorship or nomination relating to the applicant has been approved, allowing him to satisfy the mandatory nomination criteria in cl. 457.223(4)(a). The department ISCE records indicate that the sponsoring employer held the status of a business sponsor from 6 August 2014 and that the nomination in relation to the first named applicant had been approved on 3 September 2014.

38. The tribunal informed the applicants of this information at the hearing pursuant to s.359AA of the Act. In his response, the first named applicant stated that he had no knowledge that on 30 March 2014, his employer was not approved as sponsor or that he was not subject of an approved nomination.

39. In these circumstances, it follows from the reasoning in Quan that the first named applicant was not entitled to be granted a visa of the class applied for had he applied for the visa on the day when he last held a substantive visa on 30 March 2014. The first named applicant therefore does not meet cl.3004(f)(i). As there is no evidence that the first named applicant entered Australia unlawfully, cl.3004(i)(f)(ii) does not apply.

40. In his evidence, the first named applicant stated that no work condition, which was imposed on his BVC that was granted on 6 May 2014, was lifted by the department on 4 December 2014. He confirmed that he worked as a full time employee for the sponsoring employer between 6 May 2014 and 4 December 2014 but stated that he was not aware that he was not allowed to do so. He added that other people from Brazil continued to work for the company. Based on this evidence, I find that the first named applicant breached a condition of his BVC by working for the sponsoring employer between 6 May 2014 and 4 December 2014. Therefore, he has failed to substantially comply with the 8101 condition imposed on his BVC. The first named applicant’s awareness or lack thereof of his current visa status is not beyond his control as it is, ultimately, his responsibility to inform himself of his own visa status and visa conditions. Accordingly I find that the first named applicant does not meet cl.3004(e)(ii)(B).

41. As the first named applicant does not meet cl.3004(f) and cl.3004(e)(ii)(B) it follows that the first named visa applicant does not meet Criterion 3004 as a whole and, therefore, does not satisfy cl.457.211 of the Regulations. Given these findings, it has not been necessary for the tribunal to consider the applicants claims and evidence in relation to the remaining criteria under cl.3004.

42. 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

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

    Antonio Dronjic
    Member