1512628 (Migration)

[2016] AATA 3436

1512628 (Migration) [2016] AATA 3436 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Life as a Tiger Pty Ltd

VISA APPLICANT:  Mr Rajeev Kumar

CASE NUMBER:  1512628

DIBP REFERENCE(S):  BCC2014/2505590

MEMBER:Fraser Syme

DATE:4 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 04 March 2016 at 10:52am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration 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 1 October 2014.

3. At the time the visa 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). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4). In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4.    The delegate refused to grant the visa on 9 September 2015 on the basis that cl.457.221A was not met. The visa applicant was not in Australia at the time of making the visa application on 1 October 2014, however, he was in Australia at the time of the delegate’s decision. He therefore had to meet the requirements of cl.457.221A and schedule 3003, 3004 and 3005. As at 1 October 2014, the visa applicant did not hold a substantive visa. The last substantive visa he held was a subclass 572 which ceased on 11 May 2011 (but he remained lawfully in Australia on a series of bridging visas thereafter). The delegate was not satisfied the visa applicant met the schedule 3 requirements because an earlier student visa applicant was refused under PIC 4020, that decision which was upheld by the former Migration Review Tribunal (“MRT”). The review applicant included the delegate’s decision record with the review application.

5.    The review applicant is the trustee company of a trading trust operating a restaurant, Lure on Latrobe. A director of the review applicant, Mr Harris, appeared before the Tribunal on 26 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. Prior to the hearing, the review applicant provided a bundle of documents regarding the benefit to its business of the visa applicant being granted a visa. The Tribunal has had regard to these documents, but for reasons expressed below, they have not been relevant to the issues the Tribunal required to determine in this matter.

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 the present case is whether the visa applicant meets the requirements of cl.457.221A and in particular criterion 3004.

Does the visa applicant satisfy the relevant Schedule 3 criteria?

8.    Relevantly to this matter, cl.457.221A requires that an applicant who was outside Australia at the time of application but inside Australia at the time of decision holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa at the time of decision. If they do not hold a substantive visa at this time, they may still satisfy cl.457.221A 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.

1. The visa applicant related his migration history during the hearing consistent with the records available to the Tribunal. The visa applicant has had two other matters before the MRT. In August 2012, the MRT set aside a decision to cancel the visa applicant’s subclass 572 visa for breach of condition 8202 (MRT 1010729). The Tribunal in that instance found there to be deficiencies in the attendance record keeping of the visa applicant’s former education provider. Then, in December 2013, the MRT affirmed a decision to refuse the visa applicant a subclass 572 student visa under public interest criteria 4020 (MRT 1220585). The Tribunal found the visa applicant through his former migration agent A provided bogus documents to the department, namely bank statements from India. The visa applicant did not respond to a s.359A letter regarding those bank statements and subsequently, the MRT made a decision without the visa applicant appearing at a hearing.

2. The visa applicant further explained (again in line with departmental records available to the Tribunal) the visa applicant’s last substantive visa ceased in May 2011 and that he has never held a subclass 777 Transit visa nor a special purpose visa. On 30 September 2015 the visa applicant departed Australia as the holder of a bridging visa B. He returned to Australia on 3 October 2015 and he remained in Australia thereafter as the holder of a bridging visa E. He made the application subclass 457 visa the subject of this review while he was offshore. 

3. On the evidence before it, the Tribunal finds at the time of making the current application, the visa applicant was not in Australia and at the time of this decision he is in Australia. The Tribunal further finds at the time of this decision the visa applicant was not the holder of a substantive visa and did not previously hold a Subclass 771 nor a special purpose visa. He therefore can only satisfy cl.457.221A if he satisfies Schedule 3 criteria 3003, 3004 and 3005.

4. It is not in question that Criteria 3003 and 3005 are immaterial to this application.

Is criterion 3004 met?

1. Criterion 3004 requires the Tribunal to be satisfied of a number of matters, determinative in this case are the requirements of 3004 (c) – that the visa applicant is not the holder of a substantive visa because of factors beyond his control.

2. The visa applicant explained to the Tribunal a series of alleged questionable acts by two former migration agents were factors beyond his control which caused him not to have a substantive visa at the time of decision. The first link in the series was migration agent A (who prepared the student visa application) allegedly prepared bogus documents which were provided to the department in support of an earlier student visa application. The second link was migration agent A allegedly not informing the visa applicant of a request to provide further information regarding the bogus documents. The third link was former migration agent B (who represented him in his second application to the MRT) allegedly not telling the visa applicant the date of his hearing before the MRT, which led to the MRT affirming the refusal of his student visa for providing bogus documents. The visa applicant told the Tribunal he made no complaint to the Office of the Migration Agent Registration Authority (“OMARA”) about the alleged acts of either migration agent. He variously explained that was because he did not know how and no one told him he could. He later admitted it was an error on his part not to make a complaint to IMARA.

3. The review applicant agreed the visa applicant had been victim of a series of errors by his former migration agents. From what he knew, he two found their conduct lacking. The review applicant further commented as to his opinion of the visa applicant being a naïve and trusting person who relied on the advice of the former migration agents. He added he could not conceive a person of the visa applicant’s character preparing bogus documents but did understand his character to be consistent with someone who would not make a complaint to OMARA.

4. The Tribunal discussed in detail with the visa applicant the circumstances of providing bogus documents with his student visa application. He told the Tribunal he knew as part of his application for a student visa, he had to provide evidence of financial capacity to support his studies. He gave all of his supporting documents to migration agent A, but that did not include any evidence regarding financial capacity. He told the Tribunal he did not contact his family about preparing evidence of financial capacity to support that student visa application. He also was not sure whether his brother would have been able to provide sufficient evidence. Migration agent A asked the visa applicant for the details of his parents and brother and that the migration agent would take care of it to get the visa applicant the student visa. When pressed by the Tribunal, in response to multiple questions, the visa applicant admitted he knew migration agent would prepare bogus documents to show financial capacity.

5. Adopting the procedure in s.359AA, the Tribunal put to the review applicant the evidence of the visa applicant that he knew migration agent A provided bogus documents in support of the visa applicant’s student visa application. It explained that information was relevant because it would be reason to find the visa applicant was not the holder of a substantive visa due to factors within his control, namely, he was party to providing the bogus documents which led to the visa applicant’s student visa being refused. The Tribunal further explained the visa applicant being party to providing bogus documents was a reason to invoke PIC 4020. These would be reasons to affirm the decision. The Tribunal agreed to the request of the review applicant for an adjournment of 10 minutes within which to comment at the hearing.

6. On resuming the hearing, the review applicant stated he understood the evidence of the visa applicant at the hearing to mean the visa applicant was aware migration agent A prepared the bogus documents. However, during the adjournment, the visa applicant told the review applicant that the visa applicant was not aware migration agent A prepared the bogus documents.

7. Tribunal finds the visa applicant was aware migration agent A prepared bogus documents in support of his earlier student visa application. The Tribunal makes that finding due to the visa applicant making no effort to prepare evidence of financial capacity to support his student visa application albeit he knew such evidence was required. It relies too on the evidence of the visa applicant at the hearing he was aware migration agent A prepared the bogus documents. The Tribunal is not persuaded by the review applicant’s s.359AA response of the visa applicant’s attempt to resile from his earlier evidence about his knowledge of migration agent A preparing the bogus documents. The Tribunal asked the visa applicant on multiple occasions whether he was aware migration agent A prepared the bogus documents regarding financial capacity. The Tribunal asked the question multiple times because it considered the visa applicant’s knowledge a key issue for it to determine. Although the visa applicant initially denied any knowledge of the bogus documents, the visa applicant later confirmed he was aware the migration agent A prepared the bogus documents on several occasions.

8. The Tribunal finds providing the bogus documents was the reason the visa applicant’s earlier student visa was refused and the refusal was affirmed by the MRT. The visa applicant being aware migration agent A prepared bogus documents was both subjectively and objectively a factor within the control of the visa applicant. The Tribunal further finds the visa applicant being aware migration agent A prepared the bogus documents was the initial link in the chain of events which led to the visa applicant not having a substantive visa at the time of decision. Therefore, the Tribunal considers migration agent A not informing the visa applicant of the request for further information nor migration agent B not telling the visa applicant of his MRT hearing date are not reasons beyond the visa applicant’s control which led to his not having a substantive visa at the time of decision. The visa applicant’s changing evidence to the Tribunal about his knowledge of preparation of the bogus documents as well as his willingness to allow migration agent A to prepare bogus documents, calls into question his credibility. The Tribunal has doubts too regarding the credibility of the visa applicant’s claims migration agent A did not inform the visa applicant about the request for further information and migration agent B did not inform him of his MRT hearing date. But, even if the Tribunal accepts the two migration agents did not inform the visa applicant of these events, had the migration agents informed the visa applicant of these events, neither would have changed the circumstances the visa applicant provided bogus documents regarding financial capacity in the earlier student visa application. For these reasons the Tribunal is not satisfied that the visa applicant was not the holder of a substantive visa because of factors beyond the visa applicant's control.

9. The visa applicant therefore does not meet the requirements of criterion 3004(c). Given that finding, it is unnecessary for the Tribunal to make findings relevant to the remaining requirements of criterion 3004.

10. Accordingly, for the above reasons, the visa applicant does not satisfy cl.457.221A. As the visa applicant does not meet an essential criterion for the visa, the decision under review must be affirmed.

DECISION

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

Fraser Syme
Member

ATTACHMENT  -  CLAUSE 457.221A (EXTRACT)

457.221A

If the applicant was outside Australia at the time of making their application, but inside Australia at the time of the decision on the application:

(a)  the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

(b)  if the applicant does not hold a substantive visa at the time of the decision on the application:

(i)   the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

(ii)  the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

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.