1419486 (Migration)

[2016] AATA 3570

1419486 (Migration) [2016] AATA 3570 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Guang Chen

CASE NUMBER:  1419486

DIBP REFERENCE(S):  BCC2014/2042777

MEMBER:Antonio Dronjic

DATE:18 March 2016

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 18 March 2016 at 3:58pm

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 7 November 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 visa applicant applied for the visa on 19 August 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. 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 visa on 7 November 2014 on the basis that cl.457.223 (4)(d) was not met because the delegate was not satisfied that the applicant’s intention to perform the occupation of a Retail Buyer is genuine. The applicant applied for review of the primary decision on 28 November 2014 and provided a copy of the department’s decision to the Tribunal.

5. On 26 November 2015, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing as to whether the applicant is the subject of an approved nomination and meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.

6. On 9 December 2015, the applicant’s representative submitted a copy of the departmental acknowledgment letter as evidence that the new business nomination was lodged with the department on 9 December 2015 by the applicant’s prospective employer. Fu Ji United Pty Ltd.

7. On 11 December 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 24 February 2016. With its hearing invitation letter, the tribunal invited the applicant to provide evidence that he is the subject of an approved business nomination.

8. The applicant appeared before the Tribunal on 24 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence Jack Wei, the applicant’s employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

9. At the commencement of the hearing the applicant’s representative submitted the following documents:

   ·Letter from Mr Jeck Wei, General Manager of Fu Ji United Pty Ltd dated 25 January 2016, outlining the nature of the sponsoring business, duties and responsibilities of a retail buyer, stating that the visa applicant has been working for the sponsoring business since September 2014 and attesting to the applicant’s ability and skills (Tribunal folios 44-45);

   ·Organisational Chart;

   ·PAYG payment summary for the visa applicant for 2015 financial year evidencing the gross payment of 29,260;

   ·Letter from PI International company dated 16 February 2016 as evidence that the visa applicant is working as a retail buyer;

   ·Letter from Aaron Chua dated 6 February 2016 as evidence that the visa applicant is working as a retail buyer;

   ·Letter from RGIT Australia dated 12 January 2016 as evidence that the applicant was enrolled into Diploma of Business on 13 July 2015 and statement of results.

10. The Tribunal welcomed the applicant and explained the purpose of the hearing and the issues to be considered. I explained to the applicant that further issue has arisen in the review in relation to whether he now satisfies criteria in cl.457.223(4)(a), which requires the applicant to be the subject of an approved nomination by a standard business sponsor.

11. This is the summary of the applicant’s evidence:

12. He first arrived in Australia in May 2011 as a holder of a Student visa subclass 573 that remained valid until 20 August 2014. In China, he studied a Diploma of Business at the Institution that has educational relationship with the Deakin University in Australia. He was required to complete additional four subjects before continuing his education at Deakin University.  As his was unable to do so, in March 2013 he transferred to Holmes Institute and enrolled into Bachelor of Business Degree. He completed 12 out of 20 subjects and ceased his studies in September 2014.

13. He confirmed that between May 2011 and March 2013 he completed 10 weeks of English language studies. From August 2012 to May 2013 he was working as a part time employee at a restaurant. He stated that he had completed a Diploma of Business as a part time student.

14. In September 2014, he commenced his full time employment as a retail buyer with the sponsoring business. His student visa ceased on 20 August 2014 and he was granted a bridging visa ‘A’ on 19 August 2014 with 8501 condition imposed on it. He further stated that in July 2014 he applied to extend his student visa but decided to withdraw this application in August 2014.

15. He stated that in China in November 2010, he had completed a Diploma in Commerce and Certificate IV in Business. He did not work in China.

16. He stated that he saw the advertisement on the Gum Three and applied for a job at Fu Ji United Pty Ltd. After one week of training, he was offered a full time position as a retail buyer, despite not having relevant work experience either from China or Australia. He gave evidence that the sponsoring business employs between 12-13 employees and that he is the only retail buyer employed at Fu Ji United Pty Ltd. There are no employees working under his supervision. His annual salary is $56,000. He is not related to the business owner. He described the tasks and duties of his job.

17. He confirmed that his bridging visa ‘A’ is subject to 8501 condition. I asked the applicant if he knows what does the condition on his bridging visa means and he stated that he does not.

18. I explained to the applicant that the condition prevents the visa holder from working in Australia before the holder’s course of study commences. According to his evidence, he did not commence any studies in Australia after the bridging visa grant. I raised the issue with the applicant whether he meets cl.457.221 which requires that, if the applicant is in Australia, the applicant must comply substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa. He gave evidence that he has been working as a full time employee for the sponsoring business since September 2014. This means that he breached condition of the bridging visa ‘A’ he currently holds. He reiterated that he was not aware that he is not allowed to work.

19. The applicant stated that he was advised by his migration agent that he was allowed to work on a full time basis. I inquired with his representative whether she gave such an advice to the applicant and she stated that she will have to check her notes.

20. The applicant confirmed that the sponsoring business lodged another business nomination application in December 2015 and that he was nominated to a different occupation of a Customer Service Manager. He then changed his evidence and stated that he was nominated for the same position as a Retail Buyer but that the other people at the business were nominated for the position of a Customer Service Manager.

21. I explained to the applicant the requirement that the applicant must be, at the time of my decision subject of an approved business nomination by a standard business sponsor. I noted that there is a pending nomination application before the department. I explained the consequences of not being able to meet the criteria in cl.457.223 (4)(a).

    Evidence of Mr Jack Wei

22. He stated that he is employed by the business as a Managing Director and that he draws wages from the business. The business was registered in 2006, employs approximately 12 employees and during the past financial year had a turnover of nine million dollars. He is the sole shareholder.

23. He confirmed that the business advertised for the position of a retail buyer in September 2014; that number of candidates applied; that he selected the visa applicant because of his confidence and willingness to learn; that the applicant had probationary period of one or two weeks. He further stated that he never asked the applicant about his educational achievements or previous work experience.

24. He stated that he cannot recall if the business ever signed employment agreement with the applicant but believes it did not. He further stated that the visa applicant told him that he is permitted to work in Australia and that he never made independent verification of this claim with the department. He confirmed that the business employs other overseas worker who is a holder of a subclass 457 visa. I asked the witness if he is aware of the consequences if the business employs a person who is not allowed to work. He stated that he ‘heard that a penalty may be imposed’. He stated that he cannot recall what are the applicant’s proposed wages stated in the business nomination application currently before the department.

25. He stated that the applicant is valuable employee and is paid $22.60 per hour and that in addition he receives bonuses. He stated that the business will acquire two additional shops; that his wife is pregnant and that he need someone like the visa applicant to work at the business. He further stated that the last time the business advertised for a position of a retail buyer was in 2014.

26. I granted the applicant additional time until 2 March 2016 to provide additional documentary evidence and submissions in support of the review application;

    Post Hearing Correspondence

27. On 3 March 2016, the applicant’s representative submitted the following documents:

    ·Legal submissions arguing that the applicant did not breach 8501 condition, despite working on a full time basis for the sponsoring business since September 2014. The argument was that the condition 8501(1) or (1A) is not applicable as the applicant never had a course of study; that the applicant never had intention to breach the condition 8501 and that he purchased a property in Australia;

    ·Copy VEVO extract printed on 2 March 2016 (confirming that the applicant is a holder of a Bridging visa); and

    ·Statement from the applicant dated 2 March 2016 (Tribunal folios 57-59)

28. On 10 March 2016 the applicant’s representative wrote to the tribunal informing it that the nomination application that was lodged with the department was refused and that the sponsoring business lodged another nomination application. The representative sought that the tribunal postpone making its decision until the latest business nomination application is decided by the department. She further submitted that the applicant’s parents divorced on 3 March 2015; that the applicant’s uncle passed away in Mid-2015 and that the applicant’s grandfather passed away in January 2016. With her submissions, the representative enclosed the following documents:

    ·Letter from Banyule City Council dated 9 February 2016 concerning the planning application;

    ·Copy planning permit allowing the change of use to existing video shop to include convenience store;

    ·Copy lease of real estate executed on 30 may 2012; 

    ·Legal submissions dated 2 March 2016, submitting that the applicant has genuine intention to work as a retail buyer; that he has relevant skills; and

    ·Copy of several tax invoices

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

30. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

31. On 26 November 2015, the Tribunal invited the applicant, pursuant to s.359(2) of the Act, to provide information in writing as to whether he is the subject of an approved nomination and meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Migration Regulations. On 9 December 2015, the applicant’s representative submitted a copy of the departmental acknowledgment letter as evidence that the new business nomination was lodged with the department on the same day by the applicant’s prospective employer Fu Ji United Pty Ltd.

32. On 10 March 2016 the applicant’s representative informed the tribunal that a new business nomination application that was lodged with the department was refused and that the sponsoring business lodged another nomination application. The applicant’s representative requested that the tribunal postpone making its decision until the latest business nomination application is decided by the department.

33. I considered whether to further adjourn making my decision in this matter until the decision is made by the department on the latest business nomination application lodged after the decision was made to refuse the nomination application lodged on 9 December 2015.

34. In doing so, I considered whether, in the circumstances of this case, the evidence that the applicant meets cl.457.223(4)(a) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, previous adjournments and the significance of the information or documents to the applicant.

35. The Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617. In Huo’s case, the Tribunal adjourned its decision pending the outcome of fresh business sponsorship and nomination applications being lodged with the Department. Subsequently, the Department made the decision to refuse the sponsorship application. In their response to the s.359A letter, the applicants informed the Tribunal that the prospective employer lodged an application for review of the Department’s decision to refuse the sponsorship application. Despite the pending review application related to the refusal of the sponsorship application, the Tribunal proceeded to the decision affirming the delegate's decision to refuse the visa on the basis that the visa applicant's proposed employer had not been approved as a business sponsor and there was no approved business nomination as required by 457.233(4).

36. In the decision record the Tribunal specifically stated that it had decided to proceed to make a decision on the visa application without awaiting the outcome of the sponsorship review lodged with the Tribunal. The decision record stated that:

    "Having regard to the obligation of the Tribunal to conduct a mechanism of review that is fair, just, economical, informal and quick; the absence of any express statutory obligation of the Tribunal to grant adjournments for the purposes of obtaining approvals under regulation 1.20D (as it than was) and the policy expressed in PAM 3 the Tribunal is not satisfied that there are exceptional circumstances in this case in which to grant an adjournment to the visa applicant to await the outcome of the sponsorship review application."

37. The Court found that the Tribunal was not required to make a decision on the review of the sponsorship application before, or simultaneously with, making a decision on the visa application refusal. The Court rejected the applicant's argument that the Tribunal, by not delaying the decision on the visa application refusal, had not 'reviewed' the decision as required by s348 of the Act. It was sufficient that the Tribunal review the decision concerning the refusal of sponsorship at an appropriate time in the future.

38. In coming to this conclusion the Court noted that the Business (Long Stay) visa subclass only requires that the business sponsorship and nomination be in place at the time of decision, but not necessarily earlier. If the Tribunal were obliged to await the decision on all sponsorship and nomination applications relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek sponsorship from different businesses, even though such applications may be continuously refused. The Court concluded there was no error of law apparent or manifest in the conduct of the Tribunal. The Tribunal was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.

39. This approach was endorsed in Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Indeed, in Ghori v Minister for Immigration and Citizenship [2011] FCA 759 the Court held that it was reasonable for the Tribunal, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process” [at 22].

40. The Tribunal notes that it is uncertain if and when the applicant will become the subject of an approved business nomination. The Tribunal is not disposed to delay making a decision indefinitely. As a result, and against this backdrop, the Tribunal considers that the applicant and his sponsoring business had ample time to obtain nomination approval from the Department in order for the applicant to meet the cl.457.223(4)(a). Accordingly, in the circumstances of this particular case, the Tribunal does not consider it appropriate to postpone its decision making any further.

41. Based on the evidence before it, the Tribunal is not satisfied that the applicant is, at the time of decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant that has not ceased.  The Tribunal finds that the applicant does not satisfy cl.457.223(4)(a).

    Has the applicant complied substantially with the conditions of the last relevant visa(s)?

42. If the applicant is in Australia, cl.457.221 requires that he or she must have complied substantially with the conditions that applied to the last of any substantive visas held and to any subsequent bridging visa. Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. For example, the circumstances considered by Sackville J to be relevant in Kim v Witton included:

    ·the nature of the breach of condition;

    ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

    ·whether or not the applicant deliberately flouted the condition; and

    ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

1. However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 496. In addition, there are visa conditions to which the concept of substantial compliance has no logical application. In these cases, either the condition is satisfied or it is not: Jayasekara v MIMA (2006) 156 FCR 199.

2. In the present case, the applicant’s last substantive visa was a Subclass 573. On 19 August 2014, the applicant was granted bridging visa “A” that was subject to Condition 8501.

3. This condition prescribes in 8501(1A) that the holder must not engage in any work in Australia before the holder’s course of study commences.

4. Based on the evidence before me, including the oral evidence received at the hearing from the applicant and Mr Wei, I am satisfied that the applicant commenced employment with the sponsoring business in September 2014. It was submitted that the full time employment commenced in November 2014.

5. In her submissions of 3 March 2016, the applicant’s representative argued that that the applicant did not breach 8501 condition, despite working for the sponsoring business since September 2014 because he ‘never had a course of study’. My understanding of these submissions is that the representative submitted that the applicant was not enrolled into any course of study. I do not accept this proposition. According to the applicant’s oral evidence, he did lodge an application for a student visa in July 2014 but in August 2014 decided to discontinue his studies. He was granted a BVA with 8105 condition and in my view; he breached this condition by working for the sponsoring business on a full time basis before commencing a course of study.

6. However, as I made finding that the applicant does not meet cl.457.223 (4)(a) and because this finding is determinative of the review, it is unnecessary to make findings in relation to requirements of cl. 457.221. In the circumstance of this case, a monitoring of the sponsoring business may be warranted by the department.

7. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

8. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

   DECISION

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

   Antonio Dronjic
   Member