1502372 (Migration)

[2016] AATA 3411

1502372 (Migration) [2016] AATA 3411 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kulvinder Kaur
Mr Gurlal Singh
Miss Parneet Dhillon

CASE NUMBER:  1502372

DIBP REFERENCE(S):  BCC2014/1224710 BCC2014/1241414

MEMBER:Rania Skaros

DATE:23 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 23 February 2016 at 2:45pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 15 May 2014.

3. 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.

4. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.211 because the delegate was not satisfied that the applicant met the requirements of Schedule 3 criterion 3004.

5. The applicant appeared before the Tribunal on 18 February 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary visa applicant meets the requirements of Schedule 3 criterion 3004 for the purposes of cl.457.211.

   Schedule 3 criteria

8. Relevantly to this matter, cl.457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl.457.211 so long as the last substantive visa they held was not one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.

9. Criteria 3003 and 3005 are not relevant in this case.

10. In the present case, the applicant did not hold a substantive visa at the time of making the visa application, and did not previously hold a Subclass 771 or special purpose visa.

    Is criterion 3004 met?

11. 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 that date and have not subsequently been granted a substantive visa.

12. It requires the Tribunal to 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 that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant. In addition, the Tribunal must 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 visa or criminal justice visa; that the applicant intends to comply with any conditions of the visa; and that, 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 further entry permit, while the holder remained in Australia.

13. The Tribunal has had regard to the evidence before it, including, information on the visa application, submissions, documents provided to Department and to the Tribunal and the applicant’s oral evidence at the hearing. The evidence indicates that the applicant lodged the present visa application on 15 May 2014. At that time, a nomination in relation to her had been made by Ayva Catering Pty Ltd. That nomination was approved on 30 July 2014. The applicant’s last held substantive visa was a Subclass 457 visa, which was valid until 22 March 2014. She held a bridging visa A in respect of another 457 visa application that was lodged on 19 December 2013 and has held a bridging visa C in respect of this visa application.

14. The 457 visa application lodged by the applicant on 19 December 2013 was made on the basis of a nomination from BE Healthy Pty Ltd. The nomination in respect of the applicant from BE Healthy was refused on 26 March 2014. Following the refusal of the nomination, the applicant was given the option to withdraw her visa application by the Departmental officer. On 24 April 2014 the applicant made a decision to withdraw that 457 visa application.

15. The Tribunals has first considered whether the applicant meets cl.3004(c), which requires her to demonstrate that she came to be a person without a substantive visa because of factors beyond her control.

16. At the hearing the applicant gave evidence that she withdrew the 457 visa application, which was lodged on 19 December 2013, because she did not want a refusal of a visa application against her name and thought it was the best decision in the circumstances. The representative told the Tribunal that it was the applicant’s own decision to withdraw that 457 visa application. The applicant also gave evidence that her last 457 visa should have been granted until 22 March 2016 and not March 2014, which was a period of only a few months. She said they tried to correct the error with the Department but the Department advised them to just lodge a new application, which she did on 19 December 2013.

17. The Tribunal acknowledges that the applicant applied for a further 457 visa on 19 December 2013 due to her last 457 visa having been granted for only a few months. The Tribunal does not consider that the Department granting the 457 visa for only a few months to be a factor that led the applicant to be without a substantive visa at the time of application because in this case, the applicant was aware of the duration of her last 457 visa and took the appropriate steps to lodge a new 457 visa application.

18. The Tribunal has considered the applicant’s submission that she thought it was better to withdraw the visa application lodged on 19 December 2013 rather than get a refusal, however, as explained to her at the hearing, she came to be without a substantive visa at the time of this application because she chose to withdraw her last 457 visa application, even though she was not the holder of a substantive visa at the time, and the Tribunal considers her decision to withdraw that application was a circumstance over which she had control.

19. For these reasons, the Tribunal is not satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control. The Tribunal accordingly finds that the applicant does not meet subparagraph 3004(c).

20. Also, as discussed with the applicant at the hearing, the Tribunal considers that the applicant does not meet cl.3004(f). This criterion requires the applicant to demonstrate that she would have been entitled to the grant of the subclass 457 visa if she had applied for the visa on the day on which the last held a substantive visa, namely 22 March 2014.

21. The current application for a subclass 457 visa was made on 5 May 2014, in connection with a related nomination made by Ayva Catering Pty Ltd which was approved by the Department on 30 July 2014. A mandatory requirement for the grant of the 457 visa is that the applicant is the subject of a current approved nomination: cl.457.223(4)(a). On the last day the applicant held a substantive visa, namely 22 March 2014, no nomination in relation to her had been approved. As there was no approved nomination of an occupation in relation to the applicant on 22 March 2014, the Tribunal considers that, in the circumstances, the applicant would not have been entitled to the grant of the Subclass 457 visa on the day on which she last held a substantive visa.

22. The Tribunal has considered the applicant’s response at the hearing, that she was waiting for the nomination from BE Healthy Pty Ltd to be approved and that it was not possible for her at that time to seek a nomination from her sponsoring employer Ayva Catering Pty Ltd, however, as explained above, the Tribunal considers that without the nomination the applicant would not have been entitled to be granted the 457 visa had she made the application on 22 March 2014.

23. For the above reasons, the Tribunal finds that the applicant does not meet cl.3004(f)(i). As there is no evidence that the visa applicant entered Australia unlawfully, cl.3004(i)(f)(ii) does not apply. It follows that the visa applicant does not meet cl.3004(f) and therefore does not meet cl.3004 as a whole.

24. Given the above, the Tribunal finds that the applicant does not meet Schedule 3 criterion 3004 for the purposes of cl.457.211(b).

25. Given the above, the Tribunal affirms the decision under review.

26. The secondary applicants are members of the first named visa applicant’s family. There is no evidence before the Tribunal to indicate that they meet the primary criteria for the grant of the visa. Consequently, the Tribunal also affirms the decision in relation to them.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Rania Skaros
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.