1500055 (Migration)

[2016] AATA 3033

1500055 (Migration) [2016] AATA 3033 (14 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sambasivam Nadarajan
Ms Akila Sambasivam
Ms Dharshana Sambasivam
Ms Sahana Sambasivam

CASE NUMBER:  1500055

DIBP REFERENCE(S):  CLF2015/1512

MEMBER:Dione Dimitriadis

DATE:14 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

Statement made on 14 January 2016 at 3:52pm

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 2 January 2015 to refuse to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 November 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). 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 only satisfy the secondary criteria. 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. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia. The delegate refused to grant the visas on the basis that the applicant did not meet cl.401.211 of Schedule 2 to the Regulations because the applicant did not satisfy Schedule 3 criterion 3004.

5. The applicant appeared before the Tribunal on 7 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mahendran Ratnam.

6. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The records of the Department of Immigration and Border Protection (the Department) indicate that the applicant’s last substantive visa was a Subclass 428 (Religious Worker) visa which was granted on 11 September 2012 and ceased on 11 November 2014. 

9. The applicant purported to apply for the visa on 6 November 2014. The applicant provided to the Department a letter dated 5 November 2014 from Ratnam Mahendran of Sri Durgadevi Devasthanam Inc stating that the applicant has been a Religious Worker (Priest) with Sri Durgadevi Devasthanam Inc for the last five years and they would like to extend his visa for another two years.

10. On 7 November 2014 the Department wrote to the applicant and requested further information. The Department informed the applicant that he must respond to this request within 7 days after he was taken to have received this letter. The letter was sent by email. The Department informed the applicant that his application is invalid as he had not paid the application fee of $1,060.

11. On 13 November 2014 the Department received an email from the applicant who provided a credit card authorisation for the visa application fee.

12. In the visa application lodged on 13 November 2014, the applicant stated that he was born in India in 1975 and he is a national of India. The applicant stated that his sponsor is Sri Durga Devi Devasthana. The proposed period of stay in Australia is from 11 November 2014 to 11 November 2016. The type of employment or activity that he will be undertaken in Australia is a Priest and the occupation is Religious Worker. The duties of the position are to conduct daily “Poojas”, conduct “Homans” (sic), “Abhishekams” and birthday “Poojas”, conduct marriages according to the Hindu way and conduct Temple festivals. As a Priest, the applicant is involved in all religious activities.  The applicant stated that he studied and graduated at Dharumapuram Adeena Veda Sivagama Patasalai, Dharumapuram, Mayiladuthurai and he obtained “Agama Praveenar” after five years of an intensive residential course. He is able to conduct consecrations, spiritual lectures, temple festivals and daily “Poojas”, “Homas” (sic) and “Abhishekams”.

13. On 14 November 2014 the Department wrote to the applicant and requested that he provide statements regarding additional criteria applicable to non-citizens who do not hold a substantive visa.

14. The Department did not receive any submissions or further evidence from the applicant.

15. The delegate refused to grant the visas and was not satisfied that the applicant met Schedule 3 criterion 3004. The delegate found that the applicant did not meet cl.401.211. (Clause 401.211 is set out in an attachment to this decision.)

16. At the time of lodging the application for review with the Tribunal, the applicant provided a number of documents including copies of the delegate’s decision record, letter dated 2 January 2014 from the applicant and letter dated 3 January 2015 from Sri Durgadevi Devasthanam Inc.

17. The applicant stated in his letter that the visa application was initially lodged on 6 November 2014 before his existing visa ceased. On 7 November 2014 they received a request from the Department to provide the correct fee for the visa application within seven days. On 13 November 2014 the visa fee was paid in full. They received acknowledgement of the fees and notification of a valid application. On the same day, they overlooked the email requesting additional information. The applicant stated that he has been working as the Head Priest at Sri Durgadevi Devasthanam Inc for the last five years and is valuable to the community for the promotion of culture and religion. He has engaged the youth and the wider community into Hindu culture and promoting multiculturalism. The applicant’s work is growing and continuing and is paramount to the service he can provide. The applicant stated that he has fulfilled his role and responsibility to the sponsor and has complied with all work conditions and the sponsor has been very happy with his services. The applicant’s error in lodging a last minute application led to big consequences and this has shown him the importance and seriousness of ensuring a timely application and notification. He respects the process and does not wish to be in this position again. He intends to comply with all the conditions of the visa.

18. In the letter from Sri Durgadevi Devasthanam Inc, Mr Ratnam stated that they lodged a Subclass 401 visa application on 6 November 2014. On 7 November 2014 they were notified of insufficient visa application fees. A seven day period was granted to submit all the fees and on 13 November 2014 (within seven days) they sent the authorised credit card form with full payment. On 14 November 2014 they received the acknowledgement of application and an email requesting further information. However, this email was overlooked by them because they received the acknowledgement of application email, they had submitted the complete application fee and had responded to all correspondence within the given time period. Mr Ratnam stated that this was human error and they did not become aware of this until 2 January 2014 (sic) when the nomination was approved and the visa refused. They request that the case be reviewed and believe that the applicant will be able to renew his visa if he is granted the opportunity. The applicant is a highly revered and knowledgeable Hindu Priest who is a valued member of the organisation and the wider community. Due to a clerical human error they would be extremely disappointed to see the cessation of his services which benefits members of the wider Australian community. Sri Durgadevi Devasthanam Inc is a non profitable charitable organisation and the applicant’s involvement is invaluable to the growth and success of Hindu culture, religion and the community.

19. At the Tribunal hearing, the Tribunal informed the applicant of the Regulatory requirements. The Tribunal also informed the applicant that the nomination which was approved on 2 January 2015 had ceased as its ceased 12 months after it was approved.

20. The applicant stated that he knew that his previous substantive visa ceased on 11 November 2014. The payment of the visa fee was delayed because of the management where he works. The Tribunal informed the applicant that because he did not hold a substantive visa at the time he lodged the Subclass 401 visa, he has to meet criterion 3004.

21. The Tribunal informed the applicant that it has to be satisfied that he is not the holder of a substantive visa because of factors beyond the applicant’s control. The applicant stated that he completed the papers and gave them to management on 6 November 2014 and they lodged them. Mr Ratnam, the president of the Temple, stated that he calculated the fee wrongly. The Tribunal informed the applicant that the information in the Department’s letter of 7 November 2014 indicates that no fee was paid. 

22. The applicant stated that he left the lodgement of the application to his employer. It was beyond his control because his employer did not pay the fee in time. The Tribunal informed the applicant that it may not accept that he was not the holder of a substantive visa because of factors beyond his control. The Tribunal informed the applicant that he could have made enquiries of his employer, he could have made enquiries of the Department or he could have obtained outside representation. The applicant stated that in future he will make sure he does not make this mistake.

23. The applicant stated that he has worked for the employer for five years. He is the Priest there. There is one other person helping as a priest. The applicant is authorised to marry persons in Australia. He is a celebrant. The minimum number of people who attend the Temple are between 75 and 100. The Temple is at Regents Park.

24. The applicant gave evidence about the compelling reasons for granting the visa. He has studied and is able to conduct “Poojas” and “Homams”. Very few people are eligible to this. Every day the applicant does traditional rituals to the deity. There are a number of important festivals. Every month his services are important for the Temple and for devotees.

25. Mr Ratnam stated that the rituals take about four hours. The applicant has an apprentice who is an Australian citizen. The applicant was a lecturer in Sanskrit in India.

26. The applicant stated that he conducts the services but people expect more services. He looks forward to providing them. He intends to comply with conditions attached to his visa. In future he will make sure that he is not unlawful. His wish is to stay here permanently. He would like to stay because the devotees like his service. He worked as a Priest in India. Mr Ratnam stated that the applicant is a unique priest. Citizens look to him for condolence. He reads the horoscope and is the only one in Sydney who does that. Other temples ask for him.

27. Mr Ratnam stated that Sri Durgadevi Devasthanam Inc is a registered charity. The new complex will be finished in December and the applicant will be needed to conduct the celebrations which take 40 days. This temple is a temple to three goddesses: the goddesses of prosperity, education and wealth. Mr Ratnam stated that because of work pressure he never employed a lawyer to lodge the applications and the secretary was overseas.

28. The Tribunal informed the applicant that its main concern is whether he was not the holder of a substantive visa because of factors beyond his control. The Tribunal informed the applicant that it would consider whether there was anything that he could have done to apply for the visa before his previous substantive visa ceased.

29. Mr Ratnam stated that he takes full responsibility. He applied two or three times before this for the applicant’s visas. He also applied for a visa for a junior Priest. Mr Ratnam stated that he is a full-time employee with the government and has been employed with the government for the last 27 years. He also works with the Temple as a volunteer. The applicant is not paid. Mr Ratnam stated that he is responsible for immigration applications and facilities for the Priest. They have bought land for $2 million and are constructing a Temple for $3 million. As well as working full-time as a civil engineer and working as a volunteer for the Temple, he also is in charge of the construction of the Temple. He overlooked applying for the visa in time. They applied for the visa before the previous substantive visa ceased but he cannot remember whether he paid any fee. For all applications he gives his credit card. They received a letter from the Department to pay.

30. The Tribunal informed the applicant that the visa application is not valid unless the fee is paid. The Tribunal informed the applicant that the Department allowed seven days for a response to the letter of 7 November 2014.

31. Mr Ratnam stated that a bridging visa was granted to the applicant. The Tribunal informed the applicant that a substantive visa is defined in the Act (s.5(1)) and does not include a bridging visa.

32. The issue in the present case is whether the applicant satisfies Schedule 3 criterion 3004 and meets cl.401.211.

    Schedule 3 criteria

33. 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.

34. It is not in dispute that the applicant in the present case did not hold a substantive visa at the time of application. Based on the evidence before it, the Tribunal is satisfied that the last substantive visa held by the applicant was 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

35. 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.

36. 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.

37. In the present case, the applicant last held a substantive visa on 11 November 2014. His Subclass 428 visa was granted on 11 November 2012 and ceased on 11 November 2014. The applicant was not the holder of a substantive visa at the time he applied for the Subclass 401 visa the subject of this review.  ‘Substantive visa’ is defined in the s.5(1) of the Act and provides that substantive visa means a visa other than a bridging visa or a criminal justice visa or an enforcement visa.

38. The applicant purported to lodge the visa application on 6 November 2014 but no fee was paid. Until the fee was paid it was not a valid application. The Department wrote to the applicant on 7 November 2014 and informed him that no fee had been paid and his application was not valid. However, he did not pay the fee until 13 November 2013. The Tribunal is satisfied that the visa application was lodged on 13 November 2014.   

39. The Tribunal is satisfied that the applicant’s previous substantive visa was a Subclass 428 visa and it ceased on 11 November 2014. The Tribunal is satisfied that the applicant did not hold a substantive visa on the day he validly lodged the Subclass 401 visa on 13 November 2014. 

40. The Tribunal is satisfied that the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994. He therefore meets criterion 3004(a). The applicant has to meet Schedule 3 criterion 3004(c) to (h).

41. In order to meet criterion 3004(c) the Tribunal has to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his control. The Tribunal has considered whether the applicant was not the holder of a substantive visa at time of application for the Subclass 401 visa because of factors beyond his control.

42. Submissions were made by the applicant that he provided all the paperwork to the employer on 6 November 2014 and he knew that his visa was going to cease on 11 November 2014. Although the application was lodged it was not valid because the fee was not paid until 13 November 2014. The applicant submitted that the Department wrote to him on 7 November 2014 and gave him seven days to pay the visa application fee.

43. The Tribunal has considered this evidence and finds that the Department gave the applicant seven days to pay the fee. However, the Tribunal finds that the seven days allowed for the payment of the fee was to make the visa application valid. The applicant still had to meet the criteria for the grant of the visa.

44. Because he was not the holder of a substantive visa on 13 November 2014, he has to meet cl.401.211. 

45. The Tribunal has considered the evidence but is not satisfied that handing the responsibility of applying for the visa to his employer, or to a representative of the employer, was beyond the applicant’s control. He allowed the employer to lodge the visa application but unfortunately the fee was not paid before the applicant’s previous visa ceased.

46. The Tribunal is satisfied that paying the fee in time for the visa application and lodging a valid visa application was within the applicant’s control. The Tribunal is satisfied that it was within the applicant’s control to lodge the visa application within time and to pay the requisite fee.  

47. The applicant has claimed that he was given seven days to pay the fee in the letter dated 7 November 2014.  The Tribunal has considered this evidence.  

48. The Tribunal has had regard to the judgment in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 of Smith FM who referred to a judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162 and stated at paragraph 17:

    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. 

1. The Tribunal has considered whether the applicant might have been able to do something to prevent the relevant event occurring. Was the applicant able to do something so that he applied for the Subclass 401 visa before his previous substantive visa ceased? The Tribunal is of the view that the applicant could have contacted the Department to inquire whether the fee had been paid. He could have spoken with his employer and made sure that the visa application had been lodged and the correct fee had been paid before his previous visa ceased. He could have obtained legal advice or migration advice.  He could also have enquired of the Department as to the validity of his visa application which was purportedly lodged on 6 November 2014.  He has worked for the Temple for five years and could have, during that time, obtained legal advice or migration advice about applying for a further visa before his previous substantive visa ceased. The Tribunal acknowledges that the applicant was not being paid and there could be costs associated with obtaining advice from a lawyer or migration agent. However, the Tribunal is not satisfied that the applicant was not able to obtain advice about his migration status.

2. The Tribunal considers that applying for the Subclass 401 visa before his previous substantive visa ceased was something that was within the applicant’s control in that he already had a sponsor and indeed was already working for the sponsor. The Tribunal considers that it was not beyond the applicant’s control to make enquiries and obtain migration advice.   

3. The Tribunal has considered the evidence and is not satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control. The Tribunal is therefore not satisfied that the applicant meets the requirements of Schedule 3 criterion 3004(c).   

4. The applicant has given evidence that there are compelling reasons for granting the visa and that he meets the other criteria in criterion 3004. However, as the applicant does not meet Schedule 3 criterion 3004(c) he does not meet Schedule 3 criterion 3004. It is therefore unnecessary to decide whether he meets the other criteria in Schedule 3 criterion 3004.

5. The Tribunal finds that the applicant does not satisfy criterion 3004. The Tribunal finds that the applicant does not meet cl.401.211(b)(ii). 

6. For these reasons, the applicant does not satisfy Schedule 3 criterion 3004 for the purposes of cl.401.211.

7. The other applicants are not members of the family unit of a person (the primary applicant) who holds a Subclass 401 visa, a Subclass 411 visa, a Subclass 421 visa, Subclass 427 visa or a Subclass 428 visa granted on the basis of satisfying the primary criteria. The other applicants do not satisfy cl.401.311.

8. 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

9. The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

   Dione Dimitriadis
   Member

   
   

   
   ATTACHMENT - Extracts from Migration Regulations 1994

   401.211

   If the applicant was in Australia at the time of application:

   (a)      at that time, the applicant held a substantive temporary visa that was not:

   (i)      a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; or

   (ii)      a Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular)  visa; or

   (iii)      a Subclass 771 (Transit) visa; or

   (iv)      a special purpose visa; or

   (b)      if the applicant did not hold a substantive visa at that time:

   (i)      the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and

   (ii)      the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

   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 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.