ATIOLA (Migration)

[2017] AATA 1032

ATIOLA (Migration) [2017] AATA 1032 (23 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alifeleti Atiola

CASE NUMBER:  1513787

DIBP REFERENCE(S):  CLF2015/64703

MEMBER:Katie Malyon

DATE:23 June 2017

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 23 June 2017 at 10:34 am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Sport stream – No substantive visa – Late lodgement of application – Club’s error – Circumstances within applicant’s control – Pending subclass 820 application – Not appropriate for ministerial intervention

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cl 401.211(b)(ii), Schedule 3, Criterion 3004

CASES
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151

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 21 September 2015 to refuse to grant the visa applicant, Mr Alifeleti Atiola, a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Atiola applied for the visa on 3 August 2015. At the time of application, Class GB contained one Subclass: Subclass 401 (Temporary Work (Long Stay Activity)). 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 4 alternative visa streams: the Exchange stream; the Sport stream; the Religious Worker stream; or, the Domestic Worker (Executive) stream.  

3. In the present case, Mr Atiola 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 Mr Atiola did not meet cl.401.211(b)(ii) of Schedule 2 to the Regulations as he did not meet criterion 3004 of Schedule 3. Essentially, the delegate was not satisfied that Mr Atiola’s delay in lodging his visa application until more than 2½ months after expiry of his first Subclass 401 visa was due to factors beyond his control.

4. Mr Atiola appeared before the Tribunal on 27 February 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Brian Macauley, the current President of Woy Woy Rugby Club (the Club).  The Club is Mr Atiola’s sponsor for his Subclass 401 visa.  The Tribunal also received oral evidence from Mr Stuart McGoldrick, now the Club’s Secretary and a former President of the Club.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Departmental records show that the last substantive visa held by Mr Atiola was a Subclass 401 visa sponsored by the Club.  That Subclass 401 visa ceased on 9 May 2015.  When Mr Atiola lodged his application for a further Subclass 401 visa on 3 August 2015 his former substantive visa had already expired and he had been an unlawful non-citizen for just over 2½ months. 

7. The issue in this case is whether Mr Atiola satisfies Schedule 3 and thereby meets cl.401.211 of Schedule 2 of the Regulations.

   Schedule 3 criteria

8. A Subclass 401 visa applicant who is not the holder of a substantive visa at the time of application must meet 2 requirements in order to satisfy cl.401.211 of Schedule 2 of the Regulations. Firstly, the last substantive temporary visa held by the applicant must not be one of the visas set out in cl.401.211(a) of Schedule 2 of the Regulations. Secondly, they must satisfy Schedule 3 criteria 3002, 3003, 3004 and 3005 of the Regulations: cl.401.211(b) of Schedule 2.

9. It is not in dispute that Mr Atiola did not hold a substantive visa at the time of application. Based on the evidence before it, the Tribunal is satisfied that the last substantive visa held by Mr Atiola was not one of those mentioned in cl.401.211(a) of Schedule 2 of the Regulations. Accordingly, the Tribunal has considered whether Mr Atiola satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005. These criteria are set out in the Attachment to this decision.

10. Criterion 3002 is met because the visa application was lodged within 12 months of Mr Atiola’s period of stay that expired on 9 May 2015. 

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

12. Criterion 3005 prevents a repeated reliance on Schedule 3 criteria for a visa grant if an applicant does not hold a substantive visa. There is no evidence Mr Atiola has previously relied on Schedule 3 criterion and so criterion 3005 is not applicable in relation to him.

    Criterion 3004

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 1 September 1994 and have not subsequently been granted a substantive visa.

14. It requires that the Minister 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 applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant (emphasis added).  In addition, the Minister must be satisfied that:  the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa, or would have satisfied the criteria when he or she last entered Australia unlawfully:  the applicant intends to comply with any conditions of the visa;  and, if the last visa held (if any) 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.

15. In relation to considering whether there are factors beyond the control of the person the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 is relevant. In that case, Smith FM referred to a judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162 and stated:

    “The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring.  The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person.  A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.  A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.” [1]

    [1] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, Smith FM at [17]

16. His Honour Smith FM also accepted Mansfield J’s comments that a decision maker needs to examine the particular situation of the person and that it is difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of a person where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring (emphasis added).[2]

    [2] Ibid a [19]

17. The Tribunal has had regard to these comments in its consideration of the issue presented by this case. 

    Claims and evidence

    Documentation provided prior to the hearing

18. Prior to the hearing, Mr Macauley made a detailed submission on behalf of the Club regarding the background which gave rise to Mr Atiola being an unlawful non-citizen for just over 2½ months.  He states that:

    ·Mr Atiola was granted a Subclass 401 visa sponsored by the Club for the 12 months to 9 May 2015.

    ·During Mr Atiola’s approved period of his stay in Australia, the Club heard that there was a change in immigration policy limiting the number of internationals a club could sponsor to a maximum of 2 players per club: this later proved to be incorrect.  However, based on that advice and aware that the Club already had 2 players on Subclass 401 visas, the Club looked to alternative visas to allow Mr Atiola the opportunity to stay with Club.

    ·The Club is an amateur sporting club and all committee members are volunteers.  As such, none of the committee had any experience in immigration related matters and they found it difficult to source correct information.  They found the whole process quite confusing.

    ·Initially, the Club decided to approach the local Member of Parliament (MP) for the Federal seat of Robertson, Mrs Lucy Wicks, in March 2015 to seek assistance regarding visa options for Mr Atiola.  She referred the Club to her assistant, Mr Taylor Gramoski.  He told the Club he had forwarded their queries to the Department which would advise on possible visa options for Mr Atiola.  A copy of Mr Gramoski’s letters to the Club dated 8 May 2015 (the day before Mr Atiola’s visa expired) and 14 May 2015 were provided to the Tribunal.  The Tribunal notes that Mr Gramoski’s email of 14 May 2015 (which was addressed to then President Mr McGoldrick) confirms that he has spoken to the Department as well as forwarded all correspondence (that is, all the Club’s correspondence) via email to the Department and that the Department is going to get back to him with options for the Club as soon as possible.  In his initial email of 8 May 2015 to Mr Gramoski, then Club President Mr McGoldrick refers to meeting Mr Gramoski ‘the other day’.

    ·Based on Mr Gramoski’s communications as well as the fact that he works with the local MP, the Club assumed that Mr Gramoski had the issue in hand.  Mr Gramoski had said “leave it with him”.  They were under the impression local MP Mrs Wicks was meeting with the Minister for Immigration in Canberra.  Further, they thought that Mrs Wicks and Mr Gramoski had sorted out a Bridging visa for Mr Atiola.

    ·Mr Atiola discussed his concerns with the Club about the timeframe in which to reapply for his next Subclass 401 visa and was assured by the Club that all was in hand.

    ·In the meantime, the Club approached a registered migration agent to discuss possible visa options for Mr Atiola.  However, they found that the options were either too costly or Mr Atiola was ineligible to the visa.  As a voluntary organisation with very limited resources, the Club decided to continue to wait for the local MP’s assistance, as promised.

    ·As no further response from the local MP’s office was forthcoming, Mr Macauley and the Club’s Trainer met with local MP Mrs Wicks on 29 May 2015.  She advised that Mr Gramoski was looking after the case and would respond in due course.

    ·Then Club President, Stuart McGoldrick, eventually phoned Mr Gramoski on or about 1 August 2015.  Mr Gramoski indicated that local MP Mrs Wicks could not be of assistance and the Club would have to take a different approach.  Mr Gramoski informed the Club that it would have to go through the standard channels and that he could not help.

    ·About this time, there was a change of committee members at the Club: the then President of the Club, Stuart McGoldrick, resigned and Mr Macauley (who was new to the Club) was elected to fill the role.  Unfortunately, the timing and change-over meant that the level of information and knowledge about the visa process was not sufficient and, subsequently, by the time everything was understood, Mr Atiola’s initial Subclass 401 visa sponsored by the Club had lapsed.

    ·By the time the Club reapplied for a new Subclass 401 visa for Mr Atiola, he had already overstayed his former Subclass 401 visa and his visa application was declined.  The Club was advised an appeal could be made to the Tribunal. 

    ·At no stage did Mr Atiola realise he was not covered under the visa until the Club informed him, just before it reapplied for his new Subclass 401 visa.

    ·Mr Atiola has been a model player for junior and senior players alike, and has always shown good behaviour, manners and morals to all with whom he comes in contact.  He has assisted the local community in Woy Woy immeasurably.

    ·Mr Atiola trusted the Club with what it was doing with his visa: it assured him that all was in hand and it did this because the Club honestly believed all was in hand.  Mr Atiola had no reason to doubt the Club as it had a very good relationship with him: after all, the Club had gone to the most senior person in government on the Central Coast (local MP Mrs Wicks) for assistance.  At no time did the Club doubt that Mrs Wicks’ office was sorting out the visa issue for the Club and Mr Atiola.  Once the Club was informed by Mr Gramoski that he could not, in fact, assist the Club it immediately took steps to lodge a new Subclass 401 visa application for Mr Atiola on 3 August 2015.

    ·The Club sincerely apologises and realises how this has severely impacted Mr Atiola and his future visa applications.  This is a genuine case of the Club, as a volunteer organisation, attempting to do the best possible thing for the local Australian community and all concerned.  It had absolutely no intention of causing an issue for Mr Atiola: it was definitely not his fault in any way at all.  Please do not apportion any blame to Mr Atiola as he had assurances from the Club that it was all in the good hands of the local MP.  He had no reason to doubt the Club.

19. Mr Macauley’s signed statement on behalf of the Club then sets out details of the benefits to the Club and the Woy Woy community of having Mr Atiola in the Club. These statements are referred to below at para [36]. Letters in support of Mr Atiola’s pre-eminent rugby union performance from Australian Rugby Union Limited, Tonga Rugby Union as well as other supporters were provided prior to the hearing and are also referred to below.

20. Also lodged with the Tribunal prior to the hearing was: evidence of lodgement on 27 September 2016 of a Partner Subclass 820 visa application by Mr Atiola; and, evidence of lodgement of a new nomination application by the Club.    

    Hearing 

21. In his oral evidence to the Tribunal, Mr Atiola said that he trusted the Club would handle necessary paperwork on his behalf because they had done that with his first visa application.  He added that about 6 weeks before his Subclass 401 visa was due to expire on 9 May 2015, he asked about what was happening and the Club told him that “they would handle everything”.  He said he thought everything had been taken care of and he went on with life attending training, playing rugby games and being involved with Club activities including the development of junior and senior players. 

22. Mr Atiola said he dealt directly with then Club President, Mr McGoldrick, with whom he had a very good relationship.  Asked whether he had provided Mr McGoldrick with a signed visa application form, Mr Atiola said no because the visa application was lodged online and the Club had all the information it needed to process his visa application.  He did not sign anything.  Further, he did not ask for evidence of lodgement of a new visa application lodged by the Club on his behalf before expiry of his Subclass 401 visa.  He acknowledged that he could have contacted the Department, including by phone, for confirmation of lodgement of a new visa application and that he could also have asked for a receipt from the Club as evidence of lodgement of a new visa application.  Mr Atiola also acknowledged that he could have sought independent professional advice but said that he “did not think about it: I just relied on the Club”.  He concluded his evidence to the Tribunal by admitting that he could have, and should have, done more to ensure that a new Subclass 401 visa application was lodged before expiry of his old one.  He apologised for his lack of action. 

23. Mr Macauley essentially reiterated the evidence in his submission on behalf of the Club referred to above.  By way of summary, he told the Tribunal the relationship with Mr Atiola was based on trust and Mr Atiola genuinely thought the Club would do the right thing by him.  It was unfortunate that, due to the change of in Club Presidency (from Mr McGoldrick to Mr Macauley) and the Club’s misunderstanding about the change in law whereby they thought the Club was limited to sponsoring only 2 sportspersons’ visas (which they had already done), the Club did not know what was appropriate for Mr Atiola.  To resolve the confusion, the Club reached out to local MP Mrs Wicks’ office for guidance.

24. Former Club President (now Club Secretary) Mr McGoldrick told the Tribunal that, while he acknowledged there were some things that Mr Atiola could have done, the Club had relied on local MP Mrs Wicks’ office to assist both the Club and Mr Atiola.  He explained that Mr Atiola’s confidence in relying on the Club was justified because the Club, in turn, was relying on the local MP whose office had indicated they were in touch with the Department.  The Tribunal put to Mr McGoldrick it appeared shortcomings in the Club’s corporate governance and risk management processes had led to the situation Mr Atiola currently faces.  He agreed.  He added the Club does need to have better corporate governance as well as risk minimization policies and procedures in place.  Mr McGoldrick said that lessons have been learned such that this will never happen again.  He apologised to the Tribunal, and to Mr Atiola, that the Club has let Mr Atiola down. 

    Consideration of claims and findings

25. The specific issue to be determined in this case is whether Mr Atiola meets criterion 3004(c) of Schedule 3 of the Regulations, that is, not being the holder of a substantive visa because of factors beyond his control.

26. Each of Mr Atiola, Mr McGoldrick and Mr Macauley all presented as credible witnesses.  The Tribunal accepts that Mr Atiola made initial enquiries of the Club in March 2015 regarding his future with the Club prior to expiry of his former Subclass 401 visa.  Further, it accepts that he relied absolutely on advice received from the Club that it would do the right thing by him and progress renewal of his Subclass 401 visa sponsored by the Club in a timely way and sort out a Bridging visa pending the outcome of that application.  The Tribunal accepts that the Club acknowledges its responsibility for the situation in which Mr Atiola finds himself.  Because of the Club’s  reassurances, the Tribunal accepts Mr Atiola did not make enquiries of the Department regarding lodgement of a new Subclass 401 visa application, request evidence of lodgement of the visa application from the Club and nor did he seek independent legal advice.  However, Mr Atiola admits that he could - and with the benefit of hindsight, should - have done all of these things

27. Having regard to the dicta of Smith FM in the decision of Su & Ors v Minister for Immigration & Anor referred to above, the Tribunal has considered the particular situation of Mr Atiola and whether an event caused by the conduct and actions of those at the Club tasked with lodging his new Subclass 401 visa application was ‘beyond his control’ as well as whether it was within his capacity to appreciate what was needed and to perform an action which would have avoided the event occurring. 

1. The Tribunal is not satisfied that handing the responsibility of applying for a new Subclass 401 visa to the Club was beyond Mr Atiola’s control.  Not only did he contemplate the Club lodging the Subclass 401 visa application on his behalf but he also did not actively pursue evidence of lodgement to satisfy himself that the new Subclass 401 visa application had, in fact, been lodged.  It is clear that, based on his evidence to the Tribunal, Mr Atiola was aware of the need to lodge a new visa application on or before 9 May 2015.  The Tribunal is of the view that Mr Atiola could have spoken with the Club to satisfy himself that his visa application had been lodged before his initial Subclass 401 visa ceased and requested some sort of evidence of lodgement.  He could also have contacted the Department to check that all was in order, or he could have obtained professional immigration advice.  The Tribunal acknowledges that there would be costs associated with obtaining advice from a registered migration agent.  However, in the Tribunal’s opinion, it would have been open for Mr Atiola to contact the Department at no cost for confirmation that the Club had lodged his Subclass 401 visa application and, if it had not been done, then rectify the situation himself.  The Tribunal is of the opinion that, having appreciated the need to lodge a new visa application on or before 9 May 2015, Mr Atiola’s reliance on the Club was inappropriate because it was within his control to ensure that his visa application was lodged.

2. The Tribunal considers that applying for a new Subclass 401 visa before his previous substantive visa ceased was something that was within Mr Atiola’s control.  He already had a sponsor which was prepared to nominate him, albeit the Club was still resolving whether it had capacity to use an existing sponsorship (which it mistakenly thought limited sponsorship to 2 foreign nationals only and it already had sponsored Mr Atiola as well as another person) or apply for a new sponsorship approval to continue to be able to sponsor additional overseas national sportsmen.  The Tribunal is satisfied that Mr Atiola could have performed the action of lodgement on-line of a new Subclass 401 visa application on a before 9 May 2015 which would have avoided the event of his becoming an unlawful noncitizen from occurring.  It is the Tribunal’s view that lodgement of a valid Subclass 401 visa application was within Mr Atiola’s control. 

3. Having considered all the evidence, the Tribunal is not satisfied that Mr Atiola is not the holder of a substantive visa because of factors beyond his control. The Tribunal is therefore not satisfied that he meets the requirements of criterion 3004(c) of Schedule 3 of the Regulations. Because the Tribunal has found that Mr Atiola does not meet the requirements of criterion 3004(c) of Schedule 3 of the Regulations it has not been necessary to consider the requirements of remaining provisions of criteria 3004 in Schedule 3.

4. For the above reasons, Mr Atiola does not satisfy criterion 3004 of Schedule 3 to the Regulations and, accordingly, does not meet cl.401.211of Schedule 2 to the Regulations

5. Mr Atiola 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.

   Is this an appropriate case to refer to the Minister to make a more favourable decision?

6. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his power under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the Minister’s power is non-compellable in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

7. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest power under s.351 of the Act.[3]   Those guidelines indicate that the Minister will generally only consider exercising his public interest power in cases which are referred to the Department by the Tribunal or which exhibit one or more unique or exceptional circumstances.  The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include, relevantly, where there are:

   “exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

   circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case”.

   [3] see also

8. As noted above, the Tribunal found Mr Atiola,, Mr McGoldrick and Mr Macauley to be credible witnesses who genuinely regret the situation that Mr Atiola finds himself in through their individual and collective failure – in particular, failure of the Club’s corporate governance - to take timely action and lodge a fully documented decision-ready Subclass 401 visa application by Mr Atiola before his initial Subclass 401 visa sponsored by the Club expired on 9 May 2015.  In the circumstances of this case, the Tribunal would have considered referral to the Minister but for the fact that the Minister has also indicated that he considers it inappropriate for the Tribunal to refer a case to him in circumstances where the person has an ongoing application for a substantive visa with the Department.  In this regard, Mr Atiola’s Partner Subclass 820 visa application is pending with the Department.  Based on evidence provided, that application was lodged on 27 September 2016.  Departmental records confirm that Mr Atiola was granted a further Bridging C visa in respect of his Subclass 820 application and that he now has full work rights so that he can continue to work for the Club pending the Department’s consideration of his Partner 820 visa application.

9. Whilst in connection with Mr Atiola’s Subclass 401 visa application this Tribunal has found that he does not satisfy criterion 3004 of Schedule 3 to the Regulations, the Tribunal notes that, although the same criterion must be met by an applicant for a Partner Subclass 820 visa, the Regulations nonetheless provide for a waiver of this requirement in circumstances where the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d)(ii) of Part 820 of Schedule 2 to the Regulations. The Tribunal is satisfied that Mr Atiola, his wife and the Club will provide to the Department requisite documentation to address the compelling reasons why Mr Atiola’s failure to meet criterion 3004 should be waived in the context of his Subclass 820 visa application. In this regard, the Tribunal notes Mr Macauley’s signed statement on behalf of the Club referred to above as well as the letters in support from Australian Rugby Union Limited, Tonga Rugby Union and other supporters referred to in paras [18] and [19] above. Mr Macauley, in particular, observes in his statement that Mr Atiola has:

   ·added great value to the Club - he has helped bring it back from folding (that is, being wound up) to a vibrant community-based club;

   ·proactively been involved with junior schools’ clinics where use of his skill sets and willingness to participate has increased numbers and made for a more enjoyable participation in games for the juniors;

   ·attracted the local Polynesian community including rugby players;

   ·through his activities, resulted in the Club has become stronger and more successful thereby attracting sponsors and new committee members.  Mr Atiola’s activities have resulted in one sponsor donating a 22 seat bus to the Club.  It is used for both seniors and juniors.  Subsequently, the Club has allowed the local surf club (Ocean Beach Surf Club) and other community groups access to its bus for the wider community. 

   ·been involved in activities that have resulted in the Club becoming more than just a rugby club.  By way of example, the Club now reaches out to a wider local community and to underprivileged children offering a joint scholarship with the KARI for Year 12 students at the local Woy Woy high school.[4]  KARI is an aboriginal service provider, supporting indigenous families and communities through foster care, child and youth programs, education and family support; and,

   ·had a positive impact as a role model on youth who might otherwise analyse or graffiti community property by giving them a role model to aspire to.

   [4] >

   In the context of Mr Atiola’s pending Subclass 820 visa application and having regard to the Ministerial Guidelines referred to above, the Tribunal is satisfied that this is not an appropriate case to refer to the Minister. 

   DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT- Extracts from the Migration Regulations 1994

    Schedule 2 - Provisions with respect to the grant of some classes of visas

    Subclass 401 - Temporary Work (Long Stay Activity)

    401.211  If the applicant was in Australia at the time of application: 
    (a)  at that time, the applicant held a substantive temporary visa that was not: 

    (i)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic
         Worker (Diplomatic or Consular) stream;
     (ii)   a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa; or 

    (iii)  a Subclass 771 (Transit) visa; or 

    (iv)  a special purpose visa; or 

    (b)  if the applicant did not hold a substantive visa at that time: 

    (i)    the last substantive temporary visa held by the applicant was not a visa mentioned in
         paragraph (a); and 

    (ii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.
    
    

    Schedule 3 - Additional criteria applicable to unlawfully non-citizens and certain bridging visa holders

    3001(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)    if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

    (c)    if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d)    if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    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.

    Note: Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.

    oOOo