1419730 (Migration)

[2015] AATA 3261

1419730 (Migration) [2015] AATA 3261 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PHRA PISIT ROMPHRAINGAM

CASE NUMBER:  1419730

DIBP REFERENCE(S):  BCC2014/1877378 CLF2015/4305

MEMBER:Glen Cranwell

DATE:7 August 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

Statement made on 07 August 2015 at 2:11pm

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 18 November 2014 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) Subclass 401 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 August 2014. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. In the present case, the applicant is seeking the visa in the Religious Worker stream which provides for the temporary entry of persons who will be full-time religious workers in Australia.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.401.211 of Schedule 2 to the Regulations because he did not hold a substantive visa at the time of application and he did not satisfy criterion 3004, one of the Schedule 3 criteria.

5. The applicant appeared before the Tribunal on 7 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Chonlatish Chanhorm and Andrew Park.

6. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.401.211 which relates to his visa status at the time of application, and visa application history.

   Schedule 3 criteria

9. An applicant who is not the holder of a substantive visa at the time of application must meet two requirements in order to satisfy cl.401.211. Firstly, the last substantive temporary visa held by the applicant must not be one of the visas set out in cl.401.211(a). Secondly, they must satisfy Schedule 3 criteria 3002, 3003, 3004 and 3005.

10. It is not in dispute that the applicant in the present case did not hold a substantive visa at the time of application. Information in the delegate’s decision record, which was not disputed by the applicant indicates that the applicant’s last substantive visa, a Subclass 428 Religious Worker visa, expired on 31 July 2014, and the present application was made on 5 August 2014.

11. Based on the evidence before it, the Tribunal is satisfied that the applicant did not hold a substantive visa at the time this visa application was lodged, and the last substantive visa held by the applicant was a Subclass 428 visa and not one of those mentioned in cl.401.211(a). Accordingly, the issue in this case is whether the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005. These criteria are set out in an attachment to this decision.

    Criterion 3004

12. 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 1 September 1994 and have not subsequently been granted a substantive visa.  It requires that the Minister 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 applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa, or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and if the last visa held (if any) 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.

13. Consideration was given to the phrase “beyond the applicant’s control” in the context of Schedule 3 criterion 3004 in Su & Ors v MIAC & Anor [2007] FMCA 318 (Smith FM, 5 March 2007). In that case, Smith FM made the following comments about the phrase at [17]-[18]:

    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 …

    [I]t is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

    …

14. A copy of Su & Anor v Minister for Immigration [2005] FMCA 107 was provided to the Tribunal by the representative. This case does not contain any significant statements of principle, but involved a consideration of paragraph 6.5.27 of MSI 374. MSI 374 has been superseded by the current PAM 3, which contains a similar statement at paragraph 14.5 of “”:

    Cases arise where an applicant advises that their agent or lawyer was responsible for not making the application prior to their substantive visa ceasing.

    Under law, the actions of the applicant’s agent or lawyer are taken to be those of the applicant. Failure by an agent or lawyer to act in their client’s best interests may be grounds for the client to take legal action, but would not normally be grounds for finding that the applicant became an illegal entrant, or a person in Australia without a substantive visa, due to factors beyond their control. Again, these types of cases need to be considered on their facts. If a migration agent has been deregistered, it may be reasonable to find that negligent action by the agent that has affected the applicant was a circumstance beyond the applicant’s control.

15. Similarly, in Bedwell v Minister for Immigration, Local Government and Ethnic Affairs (1993) 33 ALD 368, the applicant’s solicitors lodged the application late. The Federal Court found that it was open to the delegate to conclude that he was not satisfied that the applicant became an illegal entrant because of factors beyond his control.

16. In relation to the application of the policy guidelines set out above, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations. His Honour considered that there is no real analogy between PAM3 and the type of policy discussed by Brennan J in Re Drake (No. 2) (1978-1980) 2 ALD 634.

17. It is not in dispute in the present case that a visa application was purported to have been made on 31 July 2014.  However, that visa application did not set out the correct visa application charge and the credit cardholder’s signature was also missing on the form.  It was not until 5 August 2014 that a signed authorisation for the correct charge was provided to the Department.  In written submissions, the applicant’s representative lays the blame at the feet of the former migration agent.

18. The applicant gave evidence at the hearing that he left it to Mr Chanhorm make arrangements for the visa application on his behalf.  The applicant stated that his involvement did not extend beyond signing the application form.  He knew that an application charge would need to be paid.  He understood that it would be paid by the temple credit card.

19. Mr Chanhorm gave evidence that he had signed the credit card authorisation.  The Tribunal showed him folio 60 of the Department’s file, in which no signature appears on the authorisation.  He stated he was quite confused.  The representative suggested that Mr Chanhorm may have signed a credit card authorisation for the nomination application, which was lodged on 31 July 2014, and mistakenly thought that covered both applications.

20. It is by no means clear that the failure to lodge the visa application with correct payment on or before 31 July 2014 was due solely to error on the part of the former migration agent.  As stated above, the applicant knew that a visa application charge needed to be paid.  However, the applicant took no steps personally to ensure that the charge was paid.  Mr Chanhorm thought he had taken steps to arrange payment, but in fact had not done so.  Even had the former migration agent correctly calculated the visa application charge, a valid application could not have been lodged on 31 July 2014 as the applicant had not made effective arrangements for payment of the charge.  The Tribunal is of the view, that in accordance with the comments made by Smith FM in Su & Ors v MIAC & Anor, that a misunderstanding about whether Mr Chanhorm had arranged for payment of the visa application charge was not beyond the applicant’s control, as it was within the applicant’s capacity “to appreciate what was needed and to perform an action which would have avoided the event occurring”.  In this case, that action would have been to question the former migration agent in order to confirm that arrangements had been made relating to payment of the visa application charge prior to the expiry of his Subclass 428 visa. 

21. As indicated above, Departmental policy, and indeed Federal Court authority, suggest that the migration agent negligence is not sufficient on its own to establish that the visa applicant did not hold a substantive visa due to factors beyond his control. What the policy and authorities illustrate is that it is a question of fact and degree whether the circumstances which led to a person not being the holder of a substantive visa in a particular case amount to factors beyond their control.  In the circumstances of this case, it is difficult to see how, by placing the matter of his immigration status in the hands of Mr Chanhorm and the former migration agent, the applicant can be said to have abdicated responsibility for his own migration status.  Even when the miscalculation of the visa application charge by the former migration agent is taken into consideration, the Tribunal is not satisfied that the review applicant did not hold a visa due to factors beyond his control. Accordingly, the Tribunal finds that the visa applicant does not meet 3004(c).

22. For the reasons above, the applicant does not satisfy criterion 3004(c) and therefore does not satisfy criterion 3004 for the purposes of cl.401.211. This is a common criterion which must be satisfied in the applicant’s circumstances.

23. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Religious Worker stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Religious Worker stream have not been met, the decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

    Glen Cranwell
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3  

    3001(1)   The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

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

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)an illegal entrant; or

    (ii)the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

    (i)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

    (ii)any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted 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.

    3004If 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.

    3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)this Schedule; or

    (b)Schedule 6 of the Migration (1993) Regulations; or

    (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.