Barden (Migration)

Barden (Migration) [2020] AATA 1865 (13 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Eamon Martin Barden
CASE NUMBER:  1825737
DIBP REFERENCE(S):  BCC2017/2193967
MEMBER:Bridget Cullen
DATE:13 May 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Statement made on 13 May 2020 at 3:08pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – did not hold substantive visa at time of application – visa overstay and lengthy unlawful residence – no compassionate or compelling reasons to waive requirement – no response to tribunal’s s 359A letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A,
Migration Regulations 1994 (Cth), Schedule 2, cl 457.211, Schedule 3, criterion 3004
CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 August 2018 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 21 June 2017. 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 delegate refused to grant the visa on the basis that cl.457.211 of Schedule 2 to the Regulations was not met because the applicant did not hold a substantive visa for almost 8 years before applying for this visa.
On 17 February 2020 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information before the Tribunal was that the applicant was not the holder of a substantive visa when they lodged their Class UC visa and that the last time they held a substantive visa was in 2009; further that the applicant was not subject of an approved nomination in 2009.
The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 2 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.
The applicant was represented in relation to the review by his registered migration agent, Ms Rowena Jane Hallam of RJH Partners Pty Ltd (MARN 0429550).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies Schedule 3 criterion 3004.
Does the applicant satisfy the relevant Schedule 3 criteria?
Relevantly to this matter, cl.457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl.457.211 so long as the last substantive visa they held was not a Subclass 771 (Transit) or special purpose visa and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
In the present case, the applicant did not hold a substantive visa at the time of making the visa application, and did not previously hold a Subclass 771 or special purpose visa.
Is criterion 3003 met?
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?
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.
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; the applicant intends to comply with any conditions of the visa; and, 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.
The record before the Tribunal is that the applicant last held a substantive visa on 24 July 2009. The applicant remained unlawful in Australia for a period of just under eight years, before applying for this visa on 21 June 2017.
On 17 February 2020, the Tribunal put this information to the applicant, via their authorised representative, under s.359A of the Act. The applicant had until 2 March 2020 to provide a response.
On 4 March 2020, after the due date, the Tribunal received the following in response:
“I have attempted to contact the applicant without success. He has failed to respond to my email correspondence, and I do not have his current telephone number.
I regret that I am unable to assist.”
The applicant’s explanation for his significant overstay has been set out in the delegate’s decision record. His migration agent had advised the Department as follows:
The applicant entered Australia in about January 2009 as the holder of a visitor visa. He intended to visit Australia for only a short period, and then to return home. His brother had come to Australia several years previously and the applicant came out to spend some time with him, and also to have a break from Ireland as the economy was in a terrible state.
The applicant eventually decided that he would like to stay in Australia for an extended period. He was referred to an employer in the civil construction industry through a friend, and that employer agreed to sponsor him. The applicant paid the employer a fee for the application and provided copies of relevant documentation.
Several months passed and the applicant heard no word about his application. He was not overly concerned with the situation as he had found the employer through a friend that he trusted, so in turn he trusted the employer.
Eventually the applicant discovered that the employer had gone bankrupt and ceased trading. None of the employees of the business had any warning; they just turned up on site one day to find they were all out of work.
The applicant then consulted a migration agent but was advised that nothing could be done, and that he would likely end up in detention before being deported. He panicked. Instead of taking steps to fix things, he did nothing.
The applicant regrets that he did not take steps earlier to resolve his immigration status and realises now that this was a mistake. He is adamant that had he become aware of the situation earlier, he would have taken steps to find another employer prepared to sponsor him or left Australia in accordance with his visa conditions.
The Tribunal has considered the information before it, including the explanation provided to the Department for the applicant’s failure to regularise his immigration status. It has now been nearly 11-years years since the applicant last held a substantive visa.
The Tribunal is not aware of any compassionate or compelling reasons that would warrant the Schedule 3 requirement to be waived after such a significant passage of time.
Accordingly, the applicant does not satisfy criterion 3004.
For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.457.211.
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
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Bridget Cullen
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.

[2020] AATA 1865

13 May 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction