1505728 (Migration)

[2016] AATA 4250

1505728 (Migration) [2016] AATA 4250 (15 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Clingans Strata Maintenance Pty Ltd

VISA APPLICANT:  Mr Govind Govind

CASE NUMBER:  1505728

DIBP REFERENCE(S):  BCC2014/1775936

MEMBER:Michael Cooke

DATE:15 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2016 at 11:47am

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 3 September 2014 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 21 July 2014. 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).

3. The delegate refused to grant the visa on the basis that cl.457.221A was not met because the applicant did not meet Schedule 3 criterion 3004

4. The review applicant (Mr Bill Clingan of Clingans Strata Maintenance P/L) appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s brother Nirmal Singh and the visa applicant - Mr Govind Govind.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant can meet Schedule 3 criteria 3003, 3004 and 3005.

7. At the hearing the visa applicant seemed to be totally unaware of his dire visa situation and did not have a registered migration agent to assist him. Under these circumstances the Tribunal suggested to him and the other parties that he seek proper advice. The applicant’s brother had bought the review applicant’s cleaning company and was seeking to employ the visa applicant in that company.

8. The Tribunal then gave the visa applicant additional time to present his case and issued issue him with a combined s.359A and 359(2) Invitation on 28 July 2016 to allow him to comment on his visa problem and submit additional information.

9. The applicant did not respond to the Tribunal Invitation or request additional time to respond.

   Does the applicant satisfy the relevant Schedule 3 criteria?

10. Relevantly to this matter, for visa applications made on or after 14 September 2009, cl.457.221A requires that an applicant who is outside Australia at the time of application but in Australia at the time of decision must either at that time hold a substantive visa other than a Subclass 771 or special purpose visa, or if not the holder of a substantive visa meet specified requirements. These are that the last held a substantive visa was not a Subclass 771 or special purpose visa and the Schedule 3 criteria 3003, 3004 and 3005 are met. These criteria are extracted in the attachment to this decision.

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

    Is criterion 3003 met?

12. 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?

13. 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.

14. 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 or she last 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.

    Findings and reasons relating to 3004:

    ·the date the last substantive visa (if any) ceased;

15. The applicant did not hold a substantive visa at the time of decision.

    ·the date of unlawful entry, if relevant, and whether a substantive visa was subsequently granted;

16. Not relevant.

    ·the reasons the applicant is not the holder of a substantive visa, and whether they are factors beyond the applicant’s control;

17. The applicant’s Subclass TU 572 visa ceased and the applicant did not hold a substantive visa at the time of decision. The applicant has not submitted any factors beyond the applicant’s control to explain this fact despite invitation. The applicant does not meet the criterion.

    ·whether there are compelling reasons for granting the visa.

18. The applicant has not submitted any compelling reasons for granting the visa despite invitation. The applicant does not meet the criterion.

19. Accordingly, the applicant does not satisfy criterion 3004.

20. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.457.221A.

21. 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

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

    Michael Cooke
    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.