1420923 (Migration) - [2016] AATA 4578

1420923 (Migration) [2016] AATA 4578 (20 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Faqir Chand
Ms Poonam Sharma
CASE NUMBER:  1420923
DIBP REFERENCE(S):  BCC2014/1882812
MEMBER:Adrian Ho
DATE:20 October 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 20 October 2016 at 2:11pm

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 11 December 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 1 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). 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 refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.211.
The applicants appeared before the Tribunal on 6 October 2016 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
Mr Chand is referred to as the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave evidence at hearing that his student visa expired on 12 December 2012 and at that time had the impression that his employer, Covina Farms Pty Ltd (the sponsor), had lodged a nomination application with the Department identifying him and an associated Subclass 187 (RSMS) visa application on his behalf. His evidence was that, as it turned out, the sponsor’s attempts to seek an approved nomination, and make a valid visa application, were not executed according to migration regulations, and no valid visa application had been made for the 187 visa, or any other visa.
The applicant agreed in evidence that on and from 13 December 2012, he did not hold a substantive visa. He gave evidence, accepted by the tribunal, that the Department contacted him in around March 2013, advising him that he had no visa, and he then approached the Department and was granted a bridging visa.
The applicant stated, and the tribunal finds, that the last day on which the applicants held a substantive visa was 12 December 2012.
The applicant’s evidence was that in 2013 the sponsor unsuccessfully sought to sponsor his wife, the second applicant, using the RSMS nomination and visa and it was not until 2014 that the 457 visa process was actioned by the parties. He gave evidence that the sponsor was approved as a standard business sponsor…

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 1420923 (Migration)

Details

AGLC: 1420923 (Migration) [2016] AATA 4578
Case: [2016] AATA 4578
Decision Date: 20 October 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Temporary Business Entry (Class UC) visa, who had previously held a student visa that expired on 12 December 2012. The applicant alleged that their sponsor, Covina Farms Pty Ltd, had failed to lodge the necessary nomination and visa applications correctly, resulting in the applicant not holding a substantive visa from 13 December 2012. The applicant was subsequently granted a bridging visa in March 2013. The applicants applied for the 457 visa on 1 August 2014, at which time they did not hold substantive visas, triggering the application of Schedule 3 criteria.

The primary legal issue before the Tribunal was whether the applicants met the requirements of Schedule 3, specifically Criterion 3004, which applies when an applicant ceases to hold a substantive visa and does not hold a substantive visa at the time of application. The Tribunal was required to determine if the applicants satisfied subclause 3004(f)(i), which mandates that the applicant would have been entitled to be granted the visa if they had applied on the day they last held a substantive visa, namely 12 December 2012. This required the Tribunal to consider whether the applicants could have met all Schedule 1 and Schedule 2 criteria for the 457 visa on that date, as suggested by the case of *Quan v Minister for Immigration, Multicultural Affairs & Citizenship & Anor* [2013] FCCA 1254.

The Tribunal found that the applicants' substantive student visas expired on 12 December 2012, and they had not entered Australia unlawfully. Therefore, Criterion 3004(a) applied, and Criterion 3004(b) did not. The Tribunal further determined that Criterion 3004(f)(i) applied, but not 3004(f)(ii). The Tribunal's reasoning focused on the applicants' ability to meet the visa requirements on 12 December 2012. Despite finding the applicants to be sincere witnesses and noting the sponsor's continued intention to sponsor them, the Tribunal concluded that the applicants had not demonstrated they would have been entitled to the visa on the specified date.

Consequently, the Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

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 The applicant gave evidence at hearing that his student visa expired on 12 December 2012 and at that time had the impression that his employer, Covina Farms Pty Ltd (the sponsor), had lodged a nomination application with the Department identifying him and an associated Subclass 187 (RSMS) visa application on his behalf. His evidence was that, as it turned out, the sponsor’s attempts to seek an approved nomination, and make a valid visa application, were not executed according to migration regulations, and no valid visa application had been made for the 187 visa, or any other visa. The applicant agreed in evidence that on and from 13 December 2012, he did not hold a substantive visa. He gave evidence, accepted by the tribunal, that the Department contacted him in around March 2013, advising him that he had no visa, and he then approached the Department and was granted a bridging visa. The applicant stated, and the tribunal finds, that the last day on which the applicants held a substantive visa was 12 December 2012. The applicant’s evidence was that in 2013 the sponsor unsuccessfully sought to sponsor his wife, the second applicant, using the RSMS nomination and visa and it was not until 2014 that the 457 visa process was actioned by the parties. He gave evidence that the sponsor was approved as a standard business sponsor in October 2014 and the third attempt to nominate him for a position for the 457 visa was approved in April 2016. As is noted in the copy of the delegate’s decision the applicant gave to the tribunal, the applicants applied for the 457 visas on 1 August 2014 and, as agreed by the applicants at hearing, they did not hold substantive visas on that day. As discussed, cl.457.211(b) therefore requires the applicant to meet Schedule 3 criterion 3004 (Criterion 3004).Subclause 3004(f) As suggested at hearing, the applicants’ substantive student visas expired on 12 December 2012, and there being no evidence the applicant has ever entered Australia unlawfully, cl.3004(a) applies to the applicant, and cl.3004(b) does not. In turn, as suggested and agreed in written submissions, cl.3004(f)(i) applies, and cl.3004(f)(ii) does not. Clause 3004(f)(i) requires the tribunal to 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 or criminal justice visa”. Before the hearing, the tribunal had invited the applicant to provide information pursuant to s.359(2) demonstrating that the constitutent elements of Criterion 3004 were met. The tribunal’s letter posited that the case of Quan v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 1254 (Quan), might stand for the proposition that cl.3004(f)(i) requires that the applicant was in a position to meet all of the Schedule 1 requirements and all of the Schedule 2 visa criteria on the day when the applicant last held a substantive or criminal justice visa; in this case, 12 December 2012.

Decision

Reasons for decision

The tribunal found the applicants to be earnest and sincere witnesses at hearing and notes that material submitted indicates that the sponsor continues to wish to sponsor them for the 457 visa, and that a nomination for the applicant has been approved by the Department.DECISION The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.Adrian HoMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994 Schedule 3Additional criteria applicable to unlawful non-citizens and certain bridging visa holders…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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.Adrian HoMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994 Schedule 3Additional criteria applicable to unlawful non-citizens and certain bridging visa holders…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.