1505623 (Migration)

[2016] AATA 4404

1505623 (Migration) [2016] AATA 4404 (20 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jaspreet Kaur
Mr Balwinder Singh Gill
Miss Ashrina Gill

CASE NUMBER:  1505623

DIBP REFERENCE(S):  BCC2013/2063969

MEMBER:Denise Connolly

DATE:20 September 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 20 September 2016 at 3:12pm

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 13 April 2015 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 visas on 11 December 2013. 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 who are visa applicants need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.224 because she is affected by a risk factor and the delegate was not satisfied there were circumstances which justified the grant of the visa.

4. Prior to the scheduled hearing the applicant’s representative sought a postponement of hearing because he had two matters before the Tribunal on the same day. The Tribunal confirmed that the matters would not overlap and that this hearing would be completed before his other matter was due to commence. It decided in those circumstances that it would not agree to a postponement and it proceeded with the hearing as scheduled.

5. The applicants appeared before the Tribunal on 9 August 2016 to give evidence and present arguments. The Tribunal received oral evidence from Farok Shaik, the applicant’s former employer.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant satisfies Public Interest Criterion (PIC) 4014 for the purposes of cl.457.224. 

2. Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as the holder of a Bridging C, Bridging D or Bridging E visa, except where limited specified circumstances are met: PIC 4014(4) and (5). 

3. Where the applicant is affected by a ‘risk factor’ as defined in PIC 4014(4), she is required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet PIC 4014 as a whole. PIC 4014(1)(a) requires that the application has been made more than 3 years after the date of the relevant departure from Australia. Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the departure.

Is the applicant affected by a risk factor in PIC 4014?

1. The applicant’s movement records indicate that she last departed Australia on 9 June 2013 as the holder of a Bridging E visa granted on 13 May 2013. That Bridging E visa had been granted to her while she held another Bridging E visa, granted on 12 April 2013. The applicant held several other Bridging E visas and a Bridging A visa between the time her last substantive visa ceased and the grant of the Bridging E visa on 12 April 2013. Her last substantive visa before the Bridging E visa was granted was a Subclass 573 visa which ceased on 2 July 2011.

2. The Tribunal notes that the applicant’s last held Bridging E visa had not been granted within 28 days after her substantive visa ceased to be in effect, which was on 2 July 2011.

3. At the hearing the Tribunal discussed this issue with the applicant. She acknowledged that she departed Australia on 9 June 2013 holding a Bridging E visa. Before leaving Australia she called the Department and asked whether she could apply for another visa if she went offshore. The Department informed her that she could. After she went offshore she was granted a visitor visa. She confirmed that she last held a substantive visa, a student visa, in 2009. She had applied for permanent residence, a Subclass 886 visa, in 2009, while she was studying. She was then granted the Bridging E visa as she had discontinued her studies and had applied for permanent residence. That visa application was unsuccessful. She then sought Ministerial intervention in December 2012. The then Minister intervened in July 2013 when she was granted the visitor visa.

4. After the hearing the Tribunal wrote to the applicants, inviting their comments or response to information it considered may be the reason or part of the reason for affirming the decision under review. The particulars of the information are:

   a.Departmental records indicate that the applicant was granted a substantive visa (Subclass 573 visa) on 24 August 2007 which was cancelled on 12 November 2009. This was the last substantive visa that she held before last departing Australia on 9 June 2013.

   b.The applicant’s movement records indicate that she was granted a Bridging E visa on 13 May 2013. She departed Australia as the holder of that visa. That visa was granted to her while she was holding another Bridging E visa which was granted to her on 12 April 2013.

   c.Neither of the Bridging E visas was granted to the applicant within 28 days after her substantive visa, her Subclass 573 visa, ceased to be in effect, that is, on 12 November 2009.

   d.She applied for the Subclass 457 visa, the subject of this review, on 11 December 2013.

5. In her written response the applicant did not suggest that any of the above particulars is incorrect. Her written response is focused on the waiver provisions.

6. Based on the information before it, the Tribunal finds that the visa applicant last departed Australia as the holder of a Bridging E visa. The Bridging E visa she held at the time of departure was not granted within 28 days of a substantive visa ceasing. The Bridging E visa she held at the time of departure was not granted while she held another bridging visa which was granted while she held a substantive visa, or within 28 days after a substantive visa held by the applicant ceased to be in effect. The Tribunal accordingly finds that none of the exceptions in PIC 4014(5) apply to the applicant.

7. Given the above, the Tribunal finds the applicant is affected by the risk factor in PIC 4014(4).

Was the visa application made more than 3 years after the applicant’s departure from Australia: PIC 4014(1)(a) ?

1. The Tribunal finds that the applicant last departed Australia on 9 June 2013 and she applied for the visa which is the subject of this review on 11 December 2013, less than 3 years after her departure.

2. As the visa application was made less than 3 years before the applicant’s departure from Australia, the Tribunal therefore finds that the applicant does not meet PIC 4014(1)(a).

Are the waiver provisions in PIC 4014(1)(b) met?  

1. The Tribunal notes that the applicant was invited by the Department to provide comments, including in relation to the waiver provisions. On 11 February 2014 the applicants submitted that there were compelling circumstances affecting the interests of Australia, in particular their then sponsor, Noureddine Osman (trading as Neo Kebab & Fish). The applicant is no longer sponsored by Noureddine Osman.

2. Prior to the hearing the applicant provided a submission from Ayesha Khatoon, Director, Indian Tandoori Wangaratta, Pty Ltd stating that the applicant was working as a cook in the restaurant for a long time in 2011. Ayesha Khatoon notes that the applicant has been unsuccessful in the visa application because of a 3 year ban however the 3 years has now passed. The submission states the applicant sought Ministerial intervention to lodge a visa application and it was granted. Then her old sponsor, Noureddine Osman, sold the business. Ayesha Khatoon is now willing to sponsor the applicant, having had difficulty finding an employee with her skills, as she is an integral part of the business. The applicant provided the business’ organisational chart (dated 2016) indicating there is a head cook and two vacant cook positions, and a written submission regarding the business, its various staff (indicating two staff had resigned), its turnover, and its business, sales and marketing strategy. It states the applicant is an experienced cook who will allow the Director to focus on the business and spend more time with family.  The applicant also provided a work reference from Farok Shaik, Spice of Indian Tandoori Restaurant, Bendigo, indicating she had worked for him in his restaurants from September 2011.

3. At the hearing the applicant submitted that the applicants need to stay in Australia because her parents in India sold everything for her to settle here. Also if she is granted a Subclass 457 visa her daughter can be educated in Australia. Her daughter has been in Australia most of her life. Also it is hard for the sponsor to find good workers in Wangaratta. The sponsor has applied for approval as a standard business sponsor. The business employs 3 chefs, 2 waiters and a manager.

4. The Tribunal attempted to contact Ayesha Khatoon who did not answer the phone. Farok Shaik, the applicant’s former employer, then spoke with the Tribunal. He said that the applicant is a good worker. He had a business in 2011 which she worked for, but it stopped. He has spent time and money training the applicant. However he cannot employ her until he gets clearance from the Department. He indicated it is hard to get experienced chefs in regional Australia.

5. In response to the Tribunal’s invitation to comment on or respond to the information set out above, the applicant provided written submissions on compelling or compassionate circumstances. The submission sets out some Departmental policy and then asserts that there are compelling circumstances affecting the interests of Australia, an Australian citizen or an eligible New Zealand citizen for the following reasons.

6. The applicant is sponsored by Indian Tandoori Wangaratta Pty Ltd which has now made a nomination application seeking to sponsor the applicant in the position of cook. The applicant provided a copy of the sponsor’s acknowledgement of nomination application from the Department dated 2 September 2016. It is claimed that ‘the growth of the business is highly restricted and may potentially be forced to close’ because two of the business’ experienced cooks have resigned and the owner is unable to find qualified, suitable cooks to cook and train new staff.

7. The applicant claims that the sponsor wrote to the Minister seeking Ministerial intervention. However the Tribunal notes the letter to the former Minister, which she has provided to the Tribunal, is not from Ayesha Khatoon of Indian Tandoori Wangaratta but rather from Farok Shaik, Director, Spice of Indian Tandoori Restaurant, Bendigo. The applicant refers to the former Minister’s decision to intervene. She has provided a copy of a letter written on behalf of Minister O’Connor advising that on 5 July 2013 he had decided to intervene and grant the applicants Subclass 600 visas with work rights for a period of 6 months. The letter advises that it is expected that by 25 December 2013 the applicants will have either applied for visas onshore or departed. It is submitted by the applicant that the Minister only intervenes in unique and exceptional circumstances and she is relying on those same circumstances as when she requested Ministerial intervention in 2013.

8. It is submitted that it is compelling that Australia would miss out on a significant benefit as the applicant could contribute to the Australia’s business, economic, cultural and training development if the visa is granted. Also the sponsor’s business would be adversely affected and the ability to provide prime Indian food in regional Victoria will be seriously affected as it lacks the staff and skills to carry out the business.

Assessment of the evidence on the waiver provisions

1. The term 'compelling' is not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’. ‘Compassionate’ has been defined as ‘circumstances that invoke sympathy or pity’.

2. For the following reasons the Tribunal considers that the language adopted in the regulations of ‘compelling’ and ‘compassionate’ require a degree of gravity that is not demonstrated in the evidence before the Tribunal in this case.

3. First the Tribunal has considered the assertion made in 11 February 2014 that there were compelling circumstances affecting the interests of Australia, in particular their then sponsor, Noureddine Osman (trading as Neo Kebab & Fish). The Tribunal notes however that the applicant is no longer sponsored by Noureddine Osman. Therefore it is not satisfied those circumstances are currently relevant. It is not satisfied Noureddine Osman’s former sponsorship of the applicant is a compelling circumstance affecting the interests of Australia as then asserted.

4. The Tribunal has considered Indian Tandoori Wangaratta’s nomination application. It accepts that Indian Tandoori Wangaratta wishes to sponsor the applicant and that there is a nomination application of which the applicant is the subject under consideration by the Department. However it notes that sponsorship and an approved nomination are requirements for the grant of the visa. The applicant must be the subject of an approved nomination that has not ceased in order to be granted the Subclass 457 visa. It does not consider the fact that the sponsor has lodged this application to be compelling. The Tribunal accepts that the sponsor has incurred some expense by lodging the nomination application. However it notes from the acknowledgement provided to the Tribunal by the applicant that it was lodged very recently, in September 2016. The Tribunal is satisfied the applicant and the sponsor were aware that there was an issue as to whether the applicant meets PIC 4014 and it appears that the sponsor decided to take this risk. The Tribunal is not satisfied that Indian Tandoori Wangaratta’s nomination application is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

5. The Tribunal has considered whether there is any utility in waiting for the nomination application to be finalised. However it notes that being the subject of an approved nomination is just one of the requirements for the grant of the visa. The Tribunal is not satisfied that meeting one of the criteria for the grant of the visa would be a compelling circumstance.  The Tribunal has formed the view that even if the nomination application is approved, this is not a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

6. The applicant has submitted that the current sponsor needs her to work as a cook and that she has become an integral part of the business. The sponsor has provided written submissions stating that this is the case. The applicant told the Tribunal that business employs 3 chefs, 2 waiters and a manager. It has been submitted that ‘the growth of the business is highly restricted and may potentially be forced to close’ because two of the business’ experienced cooks have resigned and the owner is unable to find qualified, suitable cooks to cook and train new staff. On the evidence before it, the Tribunal is not satisfied that the business is so reliant on the applicant that, if she is not granted the visa, the business may be forced to close. The Tribunal is of the view these are mere assertions, unsubstantiated by persuasive evidence. While it accepts that businesses in regional Australia may face some challenges in employing skilled staff, it is not satisfied, on the evidence presented by the applicant, that potential employees with the applicant’s skills are so difficult to find that the sponsor will not be able to employ other cooks. The Tribunal has considered the submission that the applicant’s employment would allow the Director to focus on the business and family. It accepts that there may be a reduced demand on the sponsor if the applicant is granted the visa. However on the evidence before it, the Tribunal is not satisfied the sponsor’s need to employ the applicant, for the various reasons discussed above, is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

7. The applicant has submitted that Australia would miss out on a significant benefit as the applicant could contribute the Australia’s business, economic, cultural and training development if the visa is granted. She also submits that sponsor’s business would be adversely affected and the ability to provide prime Indian food in regional Victoria will be seriously affected as it lacks the staff and skills to carry out the business. While the Tribunal accepts the applicant may make some contribution to a local community and a regional business as a cook at the restaurant, it is not satisfied on the evidence before it that Australia would enjoy a significant benefit as a consequence of her contribution. The Tribunal is of the view this is a mere assertion. It is also not satisfied on the evidence before it that the sponsor’s business would be adversely affected to the extent that the circumstances are compelling. Similarly the evidence before the Tribunal does not support the assertion that the ability to provide prime Indian food in regional Victoria will be seriously affected. It is not satisfied these are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

8. The applicant has submitted that the sponsor wrote to the former Minister seeking Ministerial intervention. This is not the case. It was her former employer Farok Shaik, Director, Spice of Indian Tandoori Restaurant, Bendigo who wrote to Minister O’Connor. She has submitted that the Minister only intervenes in unique and exceptional circumstances and she is relying on those same circumstances as when she requested Ministerial intervention in 2013. The Tribunal does not agree with this assessment. The former Minister decided to intervene having received submissions from Mr Shaik. She has provided this evidence herself. The applicant no longer works for Mr Shaik. She now works for a different employer and sponsor. Her circumstances have changed since the former Minister intervened. The Tribunal is not satisfied the former Minister’s assessment of her circumstances and decision to intervene in July 2013 is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa within 3 years after the applicant’s departure in June 2013.

1. The applicant has asserted that there are compassionate or compelling circumstances because her parents in India sold everything for her to settle here. The Tribunal accepts her parents have financially supported the applicant’s attempts to secure a visa in Australia. However there is no evidence to suggest her that either of her parents is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied her parents’ financial assistance is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa within 3 years after the applicant’s departure in June 2013.

2. The applicant has submitted that if the visa is granted her daughter will be able to remain in Australia and be educated here. The Tribunal appreciates that the applicant wishes for her daughter to remain in Australia. It is mindful that her daughter, born in 2008, has spent most of her life in Australia. However there is no evidence to suggest her daughter is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.  In these circumstances the Tribunal is not satisfied the applicant’s desire that her daughter remain, and be educated, in Australia is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa within 3 years after the applicant’s departure in June 2013.

3. Having considered all the relevant circumstances both individually and cumulatively, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa within 3 years after the departure of the applicant. The Tribunal is also not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa to the applicant within 3 years after the applicant’s departure. Therefore, the Tribunal finds the applicant does not meet PIC 4014(1)(b) and does not satisfy PIC 4014. Accordingly, cl.457.224 is not met.

4. 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

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

Denise Connolly
A/g Senior Member