1503104 (Migration)

[2016] AATA 3746

1503104 (Migration) [2016] AATA 3746 (14 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kamaldeep Singh
Mrs Praveen Kaur
Miss Anmolmeet Kaur

CASE NUMBER:  1503104

DIBP REFERENCE(S):  ASB2015/1175 CLF2015/15266

MEMBER:Alan Duri

DATE:14 April 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decisions not to grant the applicants Training and Research (Class GC) visas.

Statement made on 14 April 2016 at 1:33pm

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 23 February 2015 to refuse to grant the visa applicants (Mr Singh, his wife and child)Training and Research (Class GC) visas under s.65 of the Migration Act 1958 (the Act).

2. By way of background Mr Singh first arrived in Australia on 21 January 2006 on a Subclass 572 student visa.  His last substantive visa ceased on 15 March 2014.

3. Mr Singh and his family applied for the visas on 29 April 2014. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).

4. The criteria for a Subclass 402 visa are set out in Part 402 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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.

5. Mr Singh is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills through participation in workplace-based training in Australia.

6. The delegate refused to grant the visas because Mr Singh did not meet cl.402.211 of Schedule 2 to the Regulations because on the basis that Mr Singh did not satisfy the Schedule 3 criteria.

Hearing

1. Mr Singh appeared by videoconference from Canberra before the tribunal on 6 April 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

2. Mr Singh was represented by his registered migration agent Ms Radhika Reddy.

3. Mr Singh told the tribunal that he was unfamiliar with the legal process. He stated that he trusted his migration agent Kathryn Feeley and a training organisation called Mckkr’s to arrange a training visa for him. He paid Mckk’rs $8,000 and about $5,000 to the migration agent. Mr Singh explained that he had recently completed a course. The tribunal asked Mr Singh about his education history. He stated that he was undertaking courses in Melbourne.  He gave confusing evidence about the sequence of events but suggested that his last course of study was in February.  In the meantime Mr Singh obtained a job at the Metro Car Centre in Canberra.  Mr Singh explained that his wife and child lived in Canberra while he was studying in Melbourne. He originally worked one day a week for Metro Car Centre (while he was studying in Melbourne).  After he completed his studies he worked 30 hours a week.

4. The tribunal noted a suggestion in the departments file based on his resume that he was working full-time in the year before he is visa application. The tribunal noted that this appeared to suggest that face value that Mr Singh may have not complied with his student visa conditions. Mr Singh told the tribunal he was aware of the 20 hour per week work rule for students and he was adamant that he never worked more than 20 hours per week while holding a student visa.

5. The tribunal asked Mr Singh if there are any compelling reasons for the grant of the visa. He replied that his employer is happy to sponsor him. He eventually wants to obtain a Subclass 457 visa.  Mr Singh suggested there was a skill shortage in Canberra. Mr Singh stated that he and his wife’s family live in India. However he has a brother who lives in Canberra he and his family are in good health.

6. Ms Reddy told the tribunal that had Mr Singh obtain the proper advice he could have lodged alternative visa before his student visa ceased.  Ms Reddy noted that Mr Singh’s previous agent arranged a subclass 457 visa on the basis of working at a café.  Ms Reddy told the tribunal that had Mr Singh received proper advice that may be an alternate pathway such as a Subclass 485 visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

Schedule 3 criteria

1. 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.402.211. Firstly, the last substantive temporary visa held by the applicant must not be one of the visas set out in cl.402.211(a). Secondly, they must satisfy Schedule 3 criteria 3002, 3003, 3004 and 3005.

2. Mr Singh 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 Mr Singh was not one of those mentioned in cl.402.211(a). Accordingly, the question in this case is whether Mr Singh satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005. These criteria are set out in an attachment to this decision.  The relevant criterion is 3004.

Criterion 3004

1. 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.

2. 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.

3. Mr Singh’s student visa ceased on 15 March 2014 and the Subclass 402 visa application was lodged on 29 April 2014.

4. Mr Singh claims he “knows nothing of legal matters” and entrusted the visa process to an organisation called Mckkr’s.  He says he paid this organisation $8000 and the migration agent $5000 to facilitate the visa application. This may well be the case but Mr Singh was always aware that his student visa was due to cease on 15 March 2014.  Mr Singh lodged a Subclass 457 visa apparently based on the nominated occupation of a cafe worker on 15 March 2014.  However this application was subsequently withdrawn upon the lodgement of the Subclass 402 visa.  Mr Singh at all relevant times has been employed as a motor mechanic.  It appears that the Subclass 457 visa application may not have been made in good faith given he has no experience in cafe work.  Mr Singh’s current migration agent noted that at face value Mr Singh may have been eligible for a Subclass 485 visa.  It is speculative as to whether or not Mr Singh would have qualified for alternate visas. The fact of the matter is that Mr Singh’s student visa ceased on 15 March 2014 and he did not lodge the Subclass 402 visa application until six weeks later.  According to the Form 956 provided with the visa application, Mr Singh engaged the services of his migration agent Kathryn Feeley on 15 March 2014, the very day his student visa ceased.  Given that Mr Singh engaged a migration agent on the very day his student visa ceased, the tribunal does not accept that Mr Singh was not the holder of a substantive visa because of reasons beyond his control.  

5. Regarding compelling reasons for the grant of a visa, Mr Singh stated that his employer is happy to sponsor him.  He stated that he wants to use the Subclass 402 visa as a stepping stone to get a Subclass 457 visa.  Leaving aside the fact that one of the criteria for a Subclass 402 visa is that the applicant “intends to stay temporarily in Australia to carry out the occupation, program or activity for which the visa is granted”, the tribunal is not satisfied that there are compelling reasons to grant the visa. There is nothing about his personal circumstances or that of his family that gives rise to compelling reasons for the grant of the visa. Mr Singh and his family are in good health. The tribunal does not accept that the mere fact that his current employer wishes to sponsor him in itself to be a compelling reason to justify the grant of the visa.

6. During the hearing the tribunal raised concern that at face value Mr Singh’s resume suggested that he may have not complied with his student visa conditions. His resume suggested he had been a full-time worker while still holding a student visa.  Mr Singh gave clear and unambiguous evidence that while he held a student visa he only worked one day per week.  He stated he was fully aware of the 20 hour work per week limit for students and he was adamant that he never worked more than the allowed 20 hours per week.  The tribunal accepts Mr Singh’s explanation. The tribunal finds it plausible that a resume may exaggerate a person’s work history.

7. Nevertheless, Mr Singh does not satisfy criterion 3004 for the purposes of cl.402.211 because::

• the tribunal is not satisfied Mr Singh is not the holder of a substantive visa because of factors beyond his control; and  

• the tribunal is not satisfied that there are compelling reasons for granting the visa.

1. Mr Singh has only sought to satisfy the criteria for a Subclass 402 visa in the Occupational Trainee 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 Occupational Trainee stream have not been met, the decision under review must be affirmed.

2. It follows that the secondary applicants do not meet the criteria for the grant of a Subclass 402 visa.

DECISION

1. The tribunal affirms the decisions not to grant the applicants Training and Research (Class GC) visas.

Alan Duri
Member

ATTACHMENT - Extract from Migration Regulations 1994

Schedule 3  

1. (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.

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

3. If:

   (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.

4. If 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.

5. A 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.