1505588 (Migration)

[2016] AATA 4673

1505588 (Migration) [2016] AATA 4673 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaavuden Safiullah

CASE NUMBER:  1505588

DIBP REFERENCE(S):  BCC2012/845120

MEMBER:Karen Synon

DATE:23 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 23 November 2016 at 12:10pm

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 8 April 2015 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 February 2012. At the time the application was lodged, Class UC contained Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.211 was not met because the visa applicant did not meet the requirements of the Schedule 3 criterion 3004.

4. The applicant applied for review of the primary decision on 24 April 2015 and provided a copy of the department’s decision to the Tribunal.

5. The applicant appeared before the Tribunal on 23 November 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 this case is whether the visa applicant satisfies the requirements of the Schedule 3 criterion 3004 for the purposes of cl.457.221(b)(ii).

   Does the applicant satisfy the relevant 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. 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 3003 met?

10. Criterion 3003 applies to certain applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant, or were on 31 August 1994 the holder of an entry permit that was not valid beyond that date.  The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    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 able to satisfy the criteria or be granted the visa on the day he entered Australia unlawfully or last held a substantive 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.

    Would the applicant otherwise qualify but for Schedule 3 criteria- cl. 3004(f)?

13. On 1 September 2016 the Tribunal wrote to the review applicant in accordance with s.359A and s.359(2) of the Act inviting him to comment on or respond to information that he appears not to be able to satisfy the mandatory Schedule 3 Criterion 3004(f)(i) because he would not have been entitled to be granted a Subclass 457 visa if he had applied for it on the day when he last held a substantive visa.  The applicant was also invited to provide information that he satisfied cl.457.211 at the time he made the application including information that he satisfied, or did not have to satisfy, all of the Schedule 3 criterion 3004.  Comments or a response and the information were invited in writing by 15 September 2016.

14. On 14 September 2016 the following relevant written comments were received:

    It is not easy to put everything in writing and the entire struggle I had been through physically and mentally over past 4 years with immigration.

    I believe this my last opportunity. So, once for all. I want to explain everything from the beginning and you will understand why my application been with the immigration for way too long.  Please read carefully my life depends on it.

    As my VC 485 visa  which was expired on 04/11/2011. But well before my visa expires I applied for ENS (Employer Nomination Scheme) under Electronics Trade Person Scheme, I believe on February 2012 I received a call from my Case officer regarding on my ENS application and the Case officer stated that my main application was missing from the file and she mentioned I have been not holding valid visa for nearly a week and I have tried to explain the situation because I thoroughly checked and verified regardlessly with visa  application checklist before I applied for the visa.  But my case officer did not give me a single chance to explain anything and she mentioned that I have only one option to go for it is a 457 visa and the case officer sent me to Dandenong Immigration Office, Melbourne to resolve my visa conditions. After, I resolved my visa condition Immigration gave me a Bridging E and immigration mentioned me, I have to nominate 457 within the time frame  which were a (sic) _,5 days and the immigration clearly mentioned no work under this visa and I always be area of that.

    After I nominated my application on 22/02/12 in Melbourne office.  My employer submitted all the required documents to 457 visa case officer.  After that me or my employer did not receive any communication over three months and I was so worried and I tried to contact 457 office  and left so many emails almost every week but no reply been received (sic).  After a long waiting time I received a  call from Case officer and he genuinely apologised about the delay and he explained me why he failed (sic) respond to my emails_, and the case officer mentioned that he had been temporarily moved to another department after that he took about a month holiday and he mentioned before he moved to another department my case officer handover my files to his colleague but she losted (sic) all my case files including my application (applicant’s emphasis) and my case officer advised me to reapply which I did again that costed me again, time and frustrated me all  Few weeks after case officer contacted me and he stated that my case file been in the department more than six months that means he must closed my case because he still waiting documents from employer so case officer gave me MRT option.

    After I filled my application with MRT, MRT stated that the normal processing time is between 12 to 18 months. I believe on May 2014 me and employer received a letter from MRT about documentation needed but my employer failed to fulfil some of criteria and in the end I realised his not interested on submitting files because I am not with the company over a 2 year because of my Bridging Visa Condition and the Letter from MRT mentioned about registered sponsor about renominating with another registered sponsor and I contacted my MRT case officer about new nomination with a registered sponsor but the case officer mentioned me I have to nominate new sponsor within 2 weeks of time and my friend helped me to find a new employment sponsor and I explained everything to my new sponsor about my Bridging visa E and I mentioned them I cannot start work until the visa granted and my sponsor understood my position and they agreed to start after once all done.  On June 2014 my new sponsorship been filled new application on immigration and copy of all documents been submitted to MRT as well.  On 12 August my new sponsor been approved by the immigration and MRT nomination was approved and my case officer stated that all my files been moved to department of immigration.

    After that, I received email from 457 on November 2014.  Email stated that I have to do a chest x-ray and medical insurance.  But my bad luck again.  I tried to book my medical online and then I realised my passport was expired and I renewed my passport that cause more delays and I received new passport recently and I did my medical and health insurance and all papers been submitted to the case officer but application was unsuccessful that time and the refusal letter stated that I did not explained about my visa condition in the supporting document which I submitted to the case officer. I believe this document will explain everything about my visa condition and being a genuine applicant.

    Over past four years through lots of struggle physically and mentally because of Bridging Visa condition imagine no work for over 3 years of time.  Financially, I  was fight to survive over this period and all my credit cards been bankrupted even my ANZ saving account been closed by bank in mid-2012 (I am still owing money from Woolworths credit card $6000, ANZ credit card Moo etc…)

    On all this I have to mention over these years I had a massive support from my friends, land lord financially and some help from my family from overseas and all my application fees and charges been payed from my brother-in-law.

    Finally, I have to mention I been in Australia since 2005 and I never thought of breaking a law or breaching any visa conditions or committed/involved any criminal activities and I did not take control myself on this period. I know it's not appropriate to mention my personal life I am missing my family since been here (never visited over last 10 years and they 10 years older now and they waiting to see  me happy).  Really I don’t want to make a sympathy.  All that I stated in this letter is nothing but a truth, I hope you understand my situation.

    I want to mention it again, My ENS case officer gave me the opportunity to apply for 457 by the book of law.  So, I believe there is nothing wrong with my visa condition. When, I filled my application with the immigration.  And I have a genuine recommendation for an immigration perspective and make the system effectively. I could explain, if you give me an opportunity for an invitation.

15. At the hearing the applicant reiterated the circumstances canvassed in his submission specifically:

    ·     That he lodged an Employer Nomination Scheme (ENS) visa application before the expiry of his substantive visa but the department lost his file.  He was to be sponsored by Samson Hire.  The department received his employer’s application but his application “went missing”.

    ·     His case officer phoned him, pushed him and offered him a 457 and this means she did something wrong.  He had to apply for it within a week so had no time to get migration advice.  The fact that he was given a bridging Via E supports this.

    ·     The fact that his case officer told him he could apply for a 457 means he is entitled to it.  If he was not able to be granted it, why did the case officer tell him to apply for it?

    ·     The department later also lost one of his 457 applications.

    ·     Sometimes the problems are with the case officers; not with applicants.

    ·     He has now been in Australia for 12 years and this application process has taken 5 years.  If he was told he was not eligible for a 457 he could have left Australia 5 years ago and not wasted 5 years.  If his ENS application had not been lost he could be a citizen now.

16. The applicant gave evidence that his last substantive visa ended on 4 November 2011 and at that time he had not envisaged that he would apply for a 457 visa as he was being sponsored for a ENS visa.  He agreed that a nomination in respect of him was lodged by Premium Advantage on 10 June 2014 and that a previous nomination was lodged by Samson Hire (Samson Protection Pty Ltd) in February 2012.  He agreed that was after his last substantive visa ended.  He has not commenced employment with Premium Advantage due to his bridging visa issues.

17. The terms of cl.3004(f)(i) require that the visa applicant ‘would have been entitled to be granted' the relevant class of visa if he had applied for it on the last day that he held a substantive visa.

18. In Quan v MIMAC [2013] FCCA 1254 ('Quan') the Court considered the requirements of criterion 3004 in the context of cl.457.211(b)(ii).  In that case, the MRT found that the applicant would not have been entitled to the grant of a Subclass 457 visa on the day on which the applicant last held a substantive visa because as of that day the applicant did not have the sponsorship required for the grant of a 457 visa.  The Court held that the Tribunal was correct in finding that the applicant did not meet cl.3004(f)(i) on this basis.  As such, it was not necessary for the Tribunal to consider whether there were compelling reasons for granting the visa pursuant to cl.3004(d) given that the applicant was unable to satisfy all the mandatory criteria necessary for the grant of a 457 visa. 

19. In the present case the information before the Tribunal, drawn from department records and confirmed by the applicant’s evidence, is that his last substantive visa ended on 4 November 2011 and that the applicant’s first proposed sponsor, Samson Hire (Samson Protection Pty Ltd) lodged a nomination application, in respect of the visa applicant, with the Department on 22 February 2012.  On 10 June 2014, another sponsor Premium Advantage, lodged a further nomination in respect of him.

20. Therefore, on the day when the applicant's last substantive visa expired, no nomination in respect of the visa applicant had yet been lodged or approved.  Relying on the authority of Quan, the visa applicant was not entitled to be granted a visa of the class applied for if he had applied for the visa on the day when he last held a substantive visa given that he could not, at that time, provide evidence that his proposed employer was an approved sponsor and had lodged a nomination in respect of him.  The applicant therefore does not meet cl.3004(f)(i).

21. The applicant contended that because his proposed ENS sponsor, Samson Hire (Samson Protection Pty Ltd) was the same sponsor as his 457 sponsor that he did have a sponsor at the time he last held a substantive visa.  The Tribunal explained that the wording of the Schedule 3004(f) is very clear in stating that he “would have been entitled to be granted a visa of the same class applied for “ and that a 457 visa and the ENS visa are not in the same class.

22. The Tribunal records that the applicant has experienced a most frustrating 5 years during the processing of this application and that he was upset about the circumstances and what he believes were the department’s errors in losing both his ENS application and a later 457 application.  The applicant asked the Tribunal to check with the department to confirm that it had in fact lost his ENS file before making a decision.  However, as explained to the applicant at the hearing, the Tribunal declined to do so because whether an ENS application was lodged and may have been lost by the department, is not material to the issue before it of whether he meets the Schedule 3004 criteria in relation to this 457 application.

23. As there is no evidence that the visa applicant entered Australia unlawfully, cl.3004(f)(ii) does not apply.  It follows that the visa applicant does not meet cl.3004(f).

24. Accordingly, the applicant does not satisfy criterion 3004.  Given these findings, it is not necessary to consider the applicant’s claims and evidence in relation to the remaining criteria under 3004 or any of the 3005 criteria.

25. For these reasons, the visa applicant does not satisfy criterion 3004 for the purposes of cl.457.211.

26. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met.  No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

27. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Karen Synon
    Member

    
    

    ATTACHMENT   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.