1420923 (Migration)
[2016] AATA 4578
•20 October 2016
1420923 (Migration) [2016] AATA 4578 (20 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Faqir Chand
Ms Poonam SharmaCASE 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 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.
The applicant resisted that proposition in written submissions and at hearing. Ultimately, the tribunal does not need to answer the question in relation to Schedule 2 visa criteria.
It was suggested that subclause 3004(f) requires the tribunal to answer a question, first assuming something which did not in fact happen: that the applicant had in fact applied for a Class UC visa on 12 December 2012.
The question to be answered is whether, if the applicant had in fact applied for a Class UC visa on 12 December 2012, the applicant would have been entitled to be granted a visa of the class applied for.
As suggested, Class UC contained both the subclass 457 and subclass 456 visas on 12 December 2012.
Subclass 457
At hearing, the applicant was given a copy of the following portion of Item 1223A(3) of Schedule 1 to the regulations, as it existed on 12 December 2012:
(d) In the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa on the basis that the applicant meets the requirements of subclause 457.223(4) of Schedule 2:
(i) the application must specify the person who has nominated, or who proposes to nominate, an occupation in relation to the applicant; and
(ii) the application must be accompanied by evidence that the person who has nominated, or proposes to nominate, the occupation is:
(B) a standard business sponsor; or
(C) a person who has applied for approval under regulation 2.61 as a standard business sponsor but whose application has not yet been decided; or
(D) a person whose approval as a standard business sponsor has ceased to have effect, but whose nomination of an occupation in relation to the applicant:
(I) has been approved under section 140GB of the Act; and
(II) has not ceased to have effect under regulation 2.75; and
(iii) the person who has nominated, or proposes to nominate, the occupation is not the subject of a bar under:
(A) section 140L of the Act as in force immediately prior to 14 September 2009; or
(B) section 140M of the Act.
It was suggested that the requirements of Schedule 1 are ordinarily regarded as necessary for the making of a valid visa application.
It was suggested that the applicant sought to meet the requirements of subclause 457.223(4) in the standard business sponsorship stream of the visa, and not the labour agreement stream in cl.457.223(2).
It was acknowledged at hearing that on 12 December 2012 the applicant was already working for the sponsor and was in a position to specify the sponsor in the manner contemplated by Item 1223A(3)(d)(i).
However, it was suggested (and later confirmed in writing by the applicant at folio 81), and the tribunal finds, that on the evidence the sponsor was not, on 12 December 2012, a standard business sponsor. Nor did the sponsor have a pending application to be a standard business sponsor with the Department, and nor did the sponsor have an approval as a standard business sponsor which had since ceased.
This was clear enough on the evidence at hearing, which was that in late 2012 it was not the 457 visa that was contemplated, but rather the RSMS 187 visa, which did not require the sponsor to be a standard business sponsor.
Therefore, as suggested, if the applicant had applied for the visa on 12 December 2012, the applicant would not have been in a position to provide the accompanying evidence required by Item 1223A(3)(d)(ii).
As suggested, a 457 visa application made on 12 December 2012, would not have been a valid visa application.
Put another way, the applicant was not in a position to make a valid 457 visa application on, or indeed before, 12 December 2012.
In written submissions both before and after the hearing, the legal representative argued that the tribunal could still find that the “the applicant would have been entitled to be granted a visa of the class applied for” in respect of the 457 visa, as required by Subclause 3004(f).
Two possible ways proffered were for the tribunal to find that as the sponsor had subsequently applied for and been approved as a standard business sponsor in 2014 and as a nomination for the applicant has been approved, those necessary preconditions to the grant of the 457 visa have been met by the parties in good faith and the parties have demonstrated that the applicant is or will be entitled to a 457 visa.
The other proposition put to the tribunal was that as subclause 3004(f)(i) required the tribunal to assume that the applicant applied for the Class UC visa on 12 December 2012, that can only be so if a 457 visa was contemplated, and if that visa was contemplated it is only natural to also assume that the sponsor would have sought approval as a standard business sponsor and also sought approval of a nomination identifying the applicant. In other words, the tribunal could assume that all of the Item 1223A(3) validity requirements would have been met on 12 December 2012, as a natural extension of the base assumption required under subclause 3004(f)(i): that a Class UC visa was applied for on 12 December 2012.
An involved discussion took place at hearing where the tribunal suggested that the only ‘assumption’ subclause 3004(f)(i) required of the tribunal was to answer the question of whether “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”.
Other than assuming, only for the purposes of answering the question, that the applicant applied for the visa on 12 December 2012, the criterion does not suggest that the tribunal is permitted to assume anything else about what existed on 12 December 2012.
The tribunal considers that Criterion 3004 itself only applies to applicants, through cl.3004(a), who apply for the visa after their substantive visa ceases. Clause 3004(c) requires that “the applicant is not the holder of a substantive visa because of factors beyond the applicant's control”. If the applicant had in fact applied for the visa by 12 December 2012, Crtierion 3004 would not have applied in this case. “Factors beyond the applicant’s control”, whatever they may be, must have created a state of affairs where the applicant did not apply for the visa by 12 December 2012.
In this context, the logic of subclause 3004(f)(i) is that if the “factors beyond the applicant's control” that had prevented the applicant from applying while still holding a substantive visa did not operate or did not exist, then the applicant would have been able to make a visa application, at the latest, on 12 December 2012.
The tribunal considers that subclause 3004(f)(i) requires the tribunal to assume that a visa application was made on 12 December 2012 so as to answer the question of whether, even if factors beyond the applicant’s control are put to one side, the visa application (assumed to be made at the last opportunity on 12 December 2012) would have resulted in entitlement to a visa in the class applied for.
Regrettably, the answer of the tribunal is ‘no’.
For the 457 visa, an application by the applicant on 12 December 2012 would not have been a valid visa application as it would not have met the requirements of Item 1223A(3), for the reasons discussed above. The Department would have been obliged to return the application to the applicant with advice that it was not a valid visa application and would not be processed.
Subclass 456
The Subclass 456 visa was also discussed, although on the evidence the applicant has never sought a 456 visa.
The tribunal gave the applicant a copy of cl.456.211, which states:
456.211
The applicant:
(a) seeks to enter Australia temporarily for business purposes; and
(aa) has personal attributes and business background that are relevant to, and consistent with, the nature of the applicant's proposed business in Australia; and
(ab) demonstrates that there is need for the applicant to be in Australia for business purposes; and
(b) proposes in the application to remain in Australia for not more than 3 months on any single occasion; and
(c) has adequate funds for personal support during the period of his or her stay in Australia on each such occasion.
As suggested, on the evidence, the applicant has not proposed a business in Australia and would not have met at any time up to the present this mandatory criterion for the 456 visa.
Furthermore, the applicant was advised that Item 1223A(3)(a) as it was on 12 December 2012, required that a valid 456 application must be made outside Australia by an applicant who is outside Australia.
On the evidence, as suggested, the applicant was inside Australia on 12 December 2012, and for reasons above stated the tribunal does not have the flexibility of assuming that the applicant was elsewhere on that day. An application by the applicant on that day would therefore not be a valid application for the 456 visa, and would not have entitled the applicant to the grant of that subclass of visa.
Conclusion
For the above reasons, the applicant does not satisfy the requirements of subclause 3004(f)(i).
The case of Quan clearly indicates that if a constitute element of Criterion 3004 is not satisfied, there is no need to go on to consider other elements of Criterion 3004.
Further, the logic of cl.3004(f)(i), when read with cl.3004(a), is that if a visa application made on the last day a substantive visa was held would not have entitled the applicant to the grant of a visa in the class sought in any event, then it matters not whether factors beyond the applicant’s control operated to render the applicant not the holder of a substantive visa when the application was made. This reinforces the proposition taken from Quan; that each relevant element of Criterion 3004 must be met or else the entire criterion is not met.
For these reasons the applicant does not meet Criterion 3004 as a whole and does not meet cl.457.211.
Secondary applicant
The secondary applicant does not claim to meet the primary criteria for the visa. On the evidence, she would not meet Criterion 3004 for the same reasons above and she is not the subject of a relevant approved nomination which has not ceased and does not meet cl.457.223(4)(a), as well as other mandatory primary criteria.
She also fails against relevant secondary criteria.
It follows that as the applicants do not satisfy the applicable criteria for the grant of Subclass 457 visas, the decision under review must be affirmed.
Note on credibility
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 Ho
MemberATTACHMENT - 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.
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