1511989 (Migration)

[2015] AATA 3573

1511989 (Migration) [2015] AATA 3573 (27 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Koresi Guduadua Ledua

CASE NUMBER:  1511989

DIBP REFERENCE(S):  CLF2015/56421

MEMBER:Denise Connolly

DATE:27 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

Statement made on 27 October 2015 at 1:58pm

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 August 2015 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 October 2014. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream.

4. In the present case, the applicant is seeking the visa in the Sport stream. This stream enables the entry of sportspersons to participate in sporting activities or engage in competition with Australian residents. The delegate refused to grant the visa because the applicant did not meet cl.401.211(b)(ii) of Schedule 2 to the Regulations because the applicant did not satisfy Schedule 3 criteria 3004. This was because at the time the visa application was lodged the applicant did not hold a substantive visa.

5. The applicant appeared before the Tribunal on 27 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Tia Roko, a community worker supporting the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The first issue for the Tribunal to consider in the present case is whether the applicant is identified in a nomination which has been approved and the approval has not ceased.

   Nomination requirements

8. Clause 401.212, a common visa criterion, requires that an applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased (see r.2.75A). That nomination must have been made by a person who was, at the time of approval, a long stay activity sponsor, exchange sponsor, sport sponsor or religious worker sponsor.

9. Additionally, this criterion requires either that there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with the nominator, or that it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.2.57 of the Regulations.

10. In this case the applicant applied for a Subclass 401 visa on the basis that he was nominated by his sponsor Denman Rugby League Football Club as a sports person. Denman Rugby League Football Club had applied to the Department of Immigration on 14 August 2014 for approval of the nomination. On 28 October 2014 the Department refused the application for approval of the nomination. Denman Rugby League Football Club applied to the Tribunal for review of that decision. However on 14 September 2015 Denman Rugby League Football Club withdrew the application for review and on 16 September 2015 the Tribunal found it no longer had jurisdiction to review the decision to refuse the nomination application.

11. The Tribunal wrote to the applicant, pursuant to s.359A of the Act, providing the above particulars in relation to Denman Rugby League Football Club’s application and withdrawal. The Tribunal noted that there was no information before the Tribunal that the applicant was the subject of an approved nomination by an approved long stay activity sponsor that has not ceased. The Tribunal explained that this information is relevant as it may lead the Tribunal to find that there is no current approved nomination of which the applicant is the subject that has not ceased. The Tribunal explained that if it makes this finding it may also find that the requirements of cl.401.212 of the Regulations are not met. The Tribunal also explained that if it makes these findings it will affirm the decision to refuse to grant the visa.

12. The Tribunal also provided particulars of information relating to the reasons the delegate gave for refusing the visa. The Department’s records indicate that the applicant held a Tourist visa which ceased on 20 September 2014. He was then in Australia unlawfully from 21 September 2014 until 3 October 2014 when the Department granted him a Bridging visa. When he applied for the Subclass 401 visa he was not the holder of a substantive visa. The Tribunal explained that this information is relevant as it may lead the Tribunal to find that when he applied for the Subclass 401 visa he was not the holder of a substantive visa and that he last held a substantive visa on 20 September 2014. It explained that it may find that there were no factors beyond his control resulting in him not holding a substantive visa.  It explained that it may find there are no compelling reasons for granting the visa and that if the Tribunal makes these findings it may also find that he does not meet cl.401.211(b)(ii). 

13. The applicant responded and provided an explanation as to why he did not hold a substantive visa at the time of application. He made submissions as to why he thought it was due to factors beyond his control. He did not make submissions as to why there were compelling reasons for granting the visa. However when asked about this at the hearing he said that he wants to live and work in Australia and that he would like to settle here permanently.

14. The Tribunal also discussed with the applicant at the hearing the issue in relation to Denman  Rugby League Football Club’s withdrawal of its application for review of the Department’s decision to refuse the nomination application in which he was identified. The Tribunal explained that as the nomination application was not approved it may not be satisfied that he is identified in an approved nomination that is current and has not ceased. It explained that therefore it appears he does not meet cl.401.212.

15. The applicant submitted that Denman Rugby League Football Club is an approved sponsor. The Tribunal accepts the Club’s sponsorship application was approved but there is no evidence that the nomination in which he was identified was approved and is still current.

16. The applicant asked for more time to get advice on his visa options. The Tribunal considered this request but did not agree to provide further time as the applicant has indicated that he is interested in pursuing a permanent visa and the Tribunal is reviewing his application for a temporary Subclass 401 visa. The Tribunal has formed the view that there would be no utility in providing the applicant with more time as it does not appear to be likely that it would result in a favourable outcome in the matter under review. It explained this at the hearing. The applicant indicated he understood.

17. Having considered the material before it, the Tribunal accepts that the applicant was identified in a nomination application lodged by Denman Rugby League Football Club. However it is not satisfied that the nomination application was approved. Therefore it is not satisfied that the applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased. Therefore, cl.401.212 is not satisfied.

18. As the applicant does not satisfy cl.401.212, and this is a mandatory requirement, it is not necessary for the Tribunal to consider whether he satisfies cl.401.211(b)(ii).

19. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Sport 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 Sport stream have not been met, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

    Denise Connolly
    Member