Bindaree Beef Pty Ltd (Migration)

Bindaree Beef Pty Ltd (Migration) [2017] AATA 439 (21 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Bindaree Beef
VISA APPLICANTS:  Mr Riaz Shiraz Ali
Mrs Janice Joti Malini
Miss Michelle Ashna Nandita Reddy
Mr Rishaad Rakshaan Ali
CASE NUMBER:  1509346
DIBP REFERENCE(S):  BCC2015/565229
MEMBER:D. Dimitriadis
DATE:21 March 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.
Statement made on 21 March 2017 at 5:55pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – No substantive visa – Former employer not approved sponsor – Federal Circuit Court appeal – Commonwealth debt – No compelling circumstances
LEGISLATION

Migration Act 1958, s 65,
Migration Regulations 1994, cl 457.221A, cl 457.223(2), Schedule 3, Criterion 3004
CASES
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
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 23 June 2015 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 20 February 2015. 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 primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visas on the basis that the first named visa applicant (the visa applicant) did not meet cl.457.221A because the visa applicant did not satisfy Schedule 3 criterion 3004. (Clause 457.221A is set out in the attachment to this decision.)
The review applicant appeared before the Tribunal in Sydney, New South Wales, by video conference from Inverell, New South Wales, on 6 December 2016 to give evidence and present arguments and was represented by Mrs Joanne Provan Vine. The Tribunal also received oral evidence from Mr Riaz Shiraz Ali (the visa applicant).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
The records of the Department of Immigration and Border Protection (the Department) indicate that the visa applicant was outside Australia at the time he applied for the Subclass 457 visa (the subject of this review). He returned to Australia on 6 March 2015 as the holder of a Bridging B visa and he does not hold a substantive visa. The visa applicant’s last substantive visa was a Class TR Subclass 676 Tourist visa which ceased on 16 June 2013.
In the visa application, the visa applicant stated that he was born in Fiji in 1980 and is a national of Fiji. The visa applicant has been sponsored by his sponsor (the review applicant), Bindaree Beef Pty Ltd. The application relates to a Labour Agreement under cl.457.223(2). He has worked with the sponsor as a Slaughterman from 22 April 2014. The visa applicant has had training in ‘specific cuts’ and his special skills are ‘knife skills’. His trade or professional qualifications are “Mintrac III”.
On 24 April 2015, the Department wrote to the visa applicant and requested that he provide additional information including a statement regarding additional criteria applicable to non-citizens who do not hold a substantive visa.
The Department received from the visa applicant a number of documents including copies of his qualifications, a curriculum vitae, reference dated 3 June 2013 from Mohammed Azeem of Masjid Bilal Cultural Centre, references from Fiji, reference letter dated 28 April 2015 from the review applicant, statement dated 19 May 2015 from the review applicant and a statement from the visa applicant.
In the review applicant’s statement dated 19 May 2015, Mr Roburt Waddell (Human Resources Officer) stated that the visa applicant applied for a Bridging B visa to go offshore so the company could lodge a Subclass 457 visa, as the visa applicant was under a “48hb” (sic). The visa applicant and his family went offshore on 18 February 2015 as holders of Bridging B visas and they returned to Australia on 6 March 2015. Mr Waddell stated that, due to the pending case at the Federal Circuit Court of Australia, the visa applicant had a visa until 7 April 2015, after which he had 28 days after the court case to leave Australia or apply for another substantive visa. On 7 May 2015, the visa applicant and his family travelled to Brisbane Immigration and applied for another substantive visa. The bridging visa was granted and they hold bridging visas until they get a decision on the Subclass 457 visa application decision which is pending.
The delegate made a decision on 23 June 2015 to refuse to grant the visas on the basis that the visa applicant did not meet cl.457.221A because the visa applicant did not satisfy Schedule 3 criterion 3004.
The application for review
The review applicant applied for review with the Tribunal on 13 July 2015 and provided a number of documents including copies of the following:
·Letter dated 7 July 2015 from the review applicant;
·The delegate’s decision record;
·IELTS test results undertaken by the visa applicant on 6 December 2014;
·Work and character references;
·Curriculum vitae;
·Certificate III Meat Processing (Slaughtering) issued to the visa applicant on 27 January 2015;
·Statement by the review applicant that they support the dependents of the visa applicant;
·Summary of domestic recruitment efforts by the review applicant and advertisements;;
·Advertisements for various positions at the review applicant;
·Letter dated 6 May 2015 from Mr Roburt Waddell, Human Resources Officer at the review applicant;
·Offer of employment signed on 21 January 2015 by a representative of the review applicant and the visa applicant;
·Statement of financial details;
·Undated statement by the visa applicant.
In the undated statement, the visa applicant stated that his previous sponsor was Oz Halal Pty Ltd which sponsored the visa applicant on a Subclass 457 visa on 14 June 2013. The visa applicant’s Subclass 457 visa was refused on 18 November 2013 because the sponsor was not an approved sponsor for a 457 visa holder and they did not have a Labour Agreement in place. After the visa refusal, the visa applicant applied to the Migration Review Tribunal (MRT) for review on 5 December 2013 but on 20 January 2014 the MRT decided that it did not have jurisdiction in this matter. The visa applicant then appealed to the Federal Circuit Court of Australia and he was informed by the Court to get a solicitor or a lawyer as they do not understand the laws of this country.
The visa applicant stated that a lawyer took his case and helped them get an extension of time until 7 April 2015 to help them prepare their case. The lawyer withdrew and the visa applicants attended the court themselves on 15 April 2015.
The visa applicant stated that during all this period he was able to gain employment with the review applicant where he began employment last April. The visa applicant completed a Mintrac Certificate III in Meat Processing and he has passed the IELTS exam. The review applicant is ready to sponsor him on a Subclass 457 visa. The visa applicant’s wife is also employed by the review applicant. His son attends the local public school and his step- daughter is in Australia on a Visitor visa. The visa applicant stated that he has always complied with the conditions of his past visas and will continue to do so if the visa is approved. The visa applicant has maintained health insurance and has continued to learn English. They have done their best to obtain a Subclass 457 visa.
In the letter dated 6 May 2015, Mr Roburt Waddell of the review applicant stated that the visa applicant has been employed at the review applicant since April 2014 and since that time he has been attempting to be approved as a Subclass 457 applicant. The visa applicant has met all the review applicant’s requirements including passing a Mintrac Certificate III. The visa applicant has had several attempts at completing the process. However, due to circumstances beyond his control and inadequate advice from the Department, this has proven extremely difficult for the visa applicant and his family. The visa applicant and his wife work all available shifts to support and provide for their two children. They left Australia to apply for a Subclass 457 visa. On return to Australia “they were advised that it would just roll over until a decision was made.” However, their visas expired. The visa applicant’s former employer was unable to continue his employment as they did not have a Labour Supply Agreement or were not an approved sponsor. This application was taken to the Federal Circuit Court of Australia without a final outcome. The visa applicant stopped work when he found out that he did not have a visa and began the process of rectifying the situation.
In the letter dated 7 July 2015, the review applicant addressed the issue of compelling reasons why the Subclass 457 visa should be granted and stated that the documentation it has provided demonstrates the difficulty in recruiting suitable skilled labour to meet the review applicant’s demands. The review applicant continually offers traineeships to domestic slaughterman, boners and slicers. Their first option is to train domestic internal staff. However, traineeships for these roles encompass an extensive training and assessment program from the commencement of the training from unskilled to skilled. The review applicant is also a Registered Training Organisation to ensure consistent training. The review applicant’s second option is to supplement in house training with recruitment of skilled or semi-skilled individuals to fill immediate skilled gaps. The nominee was recruited because of his skills to fill an immediate skills gap.
The review applicant stated that that it continually advertises to recruit suitable candidates for positions through job agencies, the company website and a large billboard at the front of the plant. The advertising campaign is ongoing and displays their vacancies Australia wide. The review applicant provided the visa applicant’s academic record and a Certificate III Meat Processing (Slaughtering) and stated that they demonstrate that the visa applicant has the essential skills that are required and sought by the review applicant.
On 29 November 2016 the Tribunal received a letter from the review applicant which provided details of the visa applicant’s Subclass 676 visa grant and stated that the day when the visa applicant last held a substantive or criminal justice visa would have been 16 June 2013. On 16 June 2013 the review applicant was and remains approved as a sponsor of 457 visas. The review applicant stated that it asks, in light of this information, that the Tribunal find that the visa applicant meets criterion 3004(f)(1).
The review applicant also requested that the Tribunal find that the time taken by the Department to process the visa application is beyond the control of the visa applicants and the review applicant requested that the Tribunal treat that as both a factor beyond the visa applicant’s control and a compelling reason (criterion 3004(c) and (d)).
The review applicant stated that the review applicant went offshore to facilitate the lodgement of his 457 application by the review applicant but he “was compelled to return to Australia in relation to an ongoing legal matter associated with the requirement of his attendance at a pending Federal Circuit Court” hearing surrounding his previous 457 refusal. The review applicant stated that they do not know all the details, but they lean to the view that the 457 visas could, if the applications had been able to be processed more quickly by the Department, have been granted prior to the visa applicants returning to Australia. The review applicant stated that if the Subclass 457 visas had been granted before the visa applicants returned to Australia, criterion 3004 would have had no application.
The review applicant stated that, if the Tribunal does not agree, they ask that the Tribunal consider the circumstances which led to the refusal of the 457 application made by the visa applicants on or about 14 June 2013, in respect of which the business Oz Halal applied unsuccessfully to be approved as a sponsor, and to consider whether the outcome was beyond the control of the visa applicants. The application by Oz Halal to be approved as a sponsor and the outcome of the same was in each case something not controlled by the visa applicants.
The review applicant provided to the Tribunal a chronology and a letter dated 29 November 2016 from the visa applicant’s legal representative.
The Tribunal hearing
The Tribunal informed the review applicant that the issue is whether the visa applicant meets cl.457.221A and Schedule 3 criterion 3004. The Tribunal informed the review applicant that because the visa applicant was outside Australia when the visa application was made, but he was in Australia when the delegate made the decision to refuse the visa, and because the visa applicant was not the holder of a substantive visa at the time he applied for the visa, he has to satisfy Schedule 3 criterion 3004. The Tribunal informed the review applicant that it has to be satisfied that the visa applicant is not the holder of a substantive visa because of factors beyond the visa applicant's control; that there are compelling reasons for granting the visa; and that the visa applicant would have been entitled to be granted a visa of the class applied for if the visa applicant had applied for the visa on the day when the visa applicant last held a substantive or criminal justice visa.
The Tribunal informed the review applicant that a ‘substantive visa’ does not include a bridging visa and the last substantive visa that the visa applicant held was a Subclass 676 Tourist visa which ceased on 16 June 2013. Mrs Vine stated that she is aware of that.
Mrs Vine stated that she represents the review applicant and is authorised to give evidence on behalf of the review applicant. She is the Human Resources Officer. Bindaree Beef Pty Ltd is sponsoring the visa applicant. They now use Bindaree Beef Group. Bindaree Beef Pty Ltd nominated the visa applicant for the position.
The review applicant stated that there were compelling circumstances as to why the visa applicant was onshore during the decision. The visa applicant applied for employment with the review applicant and they employed him as a casual in 2014 under his last substantive visa and then they applied for a Subclass 457 visa for him. The Tribunal informed the review applicant that the visa applicant’s last substantive visa ceased in 2013.
The review applicant stated that the visa applicant entered Australia on 16 March 2013 on a Tourist visa and sought sponsorship with a company called Oz Halal. While that sponsorship application was being processed, the visa applicant applied for a bridging visa with work rights. However, the application by Oz Halal was refused by the Department because they were not a standard business sponsor. The visa applicant applied to the MRT but was told that it did not have jurisdiction. The visa applicant was then advised to file a private case to the Federal Circuit Court of Australia and they then engaged a migration solicitor.
The review applicant stated that on 17 April 2014 the visa applicant applied for employment with Bindaree Beef. The visa applicant’s migration solicitor, at about this time, organised for an extension of time to prepare for the case that was filed with the Federal Circuit Court.
The review applicant stated that, on 21 January 2015, they offered the visa applicant a letter of employment. On 11 February 2015 the visa applicant applied for a Bridging B visa for the family to go home to Fiji, so that the review applicant could lodge a 457 nomination application. The visa applicant did not stay offshore until the decision was made, because the Bridging B visa had conditions that the visa applicants had to be back in Australia no later than 6 March 2015 because of the pending Federal Circuit Court case. They had to come back onshore to attend the final court hearing which took place on 7 April 2015 where the application was dismissed and a debt was then incurred to pay costs of $6,641. The visa applicants were told that, if they did not pay that debt, their Subclass 457 visa application would not be granted because of the debt owing to the Commonwealth.
The review applicant stated that the visa applicants sought advice about paying the debt off to the Commonwealth. They asked the Department if it would be detrimental to their 457 application, if they stayed in Australia and worked to pay off the debt. The Department told the visa applicants that they would receive an answer but they did not receive any answer from the Department. So they stayed in Australia and continued to work.
The review applicant stated that, after the visa applicant applied to the court, he started working with the review applicant as a casual. The review applicant lodged a 457 nomination application which was approved. The visa applicants went offshore but the Department told them that they would have to have conditions to come back to Australia to attend this court matter and that is why they returned because that was a condition of their bridging visa. When they were back in Australia, the decision on the Subclass 457 visa was made.
The Tribunal brought to the review applicant's attention that it was the visa applicant’s decision to lodge the appeal to the Court. The review applicant stated that the reason the visa applicants stayed in Australia was because of the debt they had incurred and they were advised that the debt had to be paid before a decision was made on the Subclass 457 visa.
The Tribunal brought to the review applicant's attention that the visa applicant is now on a Bridging E visa. The review applicant stated that they were put on this visa while they waited for the Tribunal hearing. The Tribunal informed the review applicant that it appears that the visa applicant was unlawful for a couple of days. The review applicant stated that the visa applicant understood that the bridging visa would continue until a definite decision had been made on the 457 application.
The Tribunal asked the review applicant if there was anything they wanted to say about compelling reasons for granting the visa. The review applicant stated that when they submitted the paperwork for the hearing, they indicated that they need skilled workers. The visa applicant’s skills are highly sought after by their organisation because they cannot get Australian workers with that skill. The visa applicant and the second named visa applicant are excellent, high value, high performance employees. They are community minded with the church, the community and the local school. They have paid full school fees for their child who goes to the local school. The visa applicants came out here to work and have done everything they were instructed to do by the Department.
The review applicant stated that the visa applicant is a slaughterman and he works full-time. The second named visa applicant is a general labourer and packs processed meat.
Bindaree Beef is an abattoir and beef processing plant. They supply to the domestic market and export to China.
The review applicant stated that, other than the visa applicant, they have approximately 20 to 25 other qualified slaughtermen.

The review applicant stated that in June 2013 the visa applicant went on a Bridging A visa to have work rights. Oz Halal lodged an application on 14 June 2013. The review applicant stated that the visa applicants did not realise that by staying in Australia on that bridging visa it would affect the outcome of a 457 being granted. They only stayed on the bridging visa to pay the debt back, otherwise they would have gone offshore and waited for the decision. They were following the advice of the Department.
The Tribunal informed the review applicant that it will look at whether the visa applicant would have been entitled to be granted a visa of the class applied for if the visa applicant had applied for the visa on the day when he last held a substantive visa on 16 June 2013. The Tribunal informed the review applicant that, at that time, there was no approved nomination. The review applicant stated that an application was lodged by Oz Halal and it was refused in November. The Tribunal informed the review applicant that it does not know whether Oz Halal lodged a nomination application and a sponsorship application and whether the visa applicant lodged a Subclass 457 visa application at that time.
The Tribunal informed the review applicant that it appears that the review applicant’s nomination may now have ceased.
Mrs Vine stated that Ms Rae is her manager and does not have anything to add. Ms Rae confirmed that she does not have anything to add.
The visa applicant gave evidence that he is currently employed full-time as a slaughterman for the review applicant. The visa applicant stated that it was never stated that they should go offshore for the visa and the nomination. If they had to stay offshore then the Department should not have granted them bridging visas. The visa applicant stated that the Department should have notified them when they were going to come back to Australia on the Bridging B visas if it was going to affect their Subclass 457 visas.
The visa applicant stated that they applied for the Subclass 457 visas offshore and they applied for Bridging B visas to go offshore and they returned to attend the court hearing.
Regarding compelling reasons for granting the visa, the visa applicant stated that if he stayed in Fiji and did not return to Australia, he would not have attended the Court and that would have also affected his visa. He had to pay $6,600. He has only two payments left of $400 in December and around $200 in January and then he will have paid the full amount of $6,600. He has paid about $6,000 already.
The visa applicant stated that he and his family are all established in Inverell. He and wife both work at Bindaree Beef. Their 10 year old son attends a school in Inverell. The visa applicant also has a step-daughter who is studying a Certificate IV in Disability at a community college and she will finish in December 2016. Then she wants to study to be a Registered Nurse. She is part-time. They cannot afford full-time study for her at the moment.
As to whether the visa applicant was not the holder of a substantive visa because of factors beyond his control, the visa applicant stated that once the Bridging B visa ceased, he went to the review applicant and called the Department. He went to the Department in Brisbane and discussed this issue with an officer. The Departmental officer told the visa applicant, after speaking to his boss in Canberra, that it would not affect his Subclass 457 result if he was granted a visa. The visa applicant stated that, if he was told that it would affect his visa and he would have to be offshore, then he would have gone to the review applicant and made other arrangements.
The Tribunal informed the visa applicant that it also has to be satisfied that he would have been entitled to be granted a Subclass 457 visa if the visa applicant had applied for the visa on the day when the visa applicant last held a substantive visa on 16 June 2013. The visa applicant stated that he applied on 14 June 2013. The visa applicant stated that the Subclass 457 visa application, the subject of this review, is the second 457 application.
The review applicant stated that if the visa is not granted they will be losing a very skilled worker and a high performing worker. The review applicant is an abattoir in Inverell, a rural country town. It is very hard to find skilled slaughterman and that is why they sponsor 457 applicants with this skill. They will be losing a very valued employee whom they would not be able to replace. They will not replace the visa applicant’s skills, performance and values. That was why the review applicant lodged the application for review with the Tribunal to keep this worker. The second named visa applicant is also a very valued employee. Her performance, integrity, values, and attendance outweigh many of the employees they have at the moment.
FINDINGS AND REASONS
The issue in this case is whether the visa applicant meets Schedule 3 criterion 3004 and cl.457.221A.
Does the visa applicant satisfy the relevant Schedule 3 criteria?
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 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.
In the present case, the visa applicant did not hold a substantive visa at the time of decision, and did not previously hold a Subclass 771 or special purpose visa. The review applicant gave evidence, which is confirmed by the Department’s movement records, that the visa applicant was outside Australia at time of application on 20 February 2015 but was in Australia at the time of the delegate’s decision on 23 June 2015. The review applicant stated that the visa applicant did not stay offshore until the decision was made. He returned to Australia to attend the Federal Circuit Court of Australia hearing on 7 April 2015.
As the visa applicant was outside Australia at the time of application but in Australia at the time of decision and as he did not hold a substantive visa (other than a Subclass 771 or special purpose visa), he has to meet Schedule 3 criteria 3003, 3004 and 3005. The Tribunal will consider whether the visa applicant meets criterion 3004.
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 visa 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 visa 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 visa applicant. In addition, the Tribunal must be satisfied that: the visa 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 visa applicant intends to comply with any conditions of the visa; and that, if the last visa (if any) held by the visa 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.
In the present case, the visa applicant did not hold a substantive visa at the time of making the visa application. His last substantive visa was a Subclass 676 Tourist visa which ceased on 16 June 2013. The visa applicant did not apply for the Subclass 457 visa (the subject of this review) until 20 February 2015. Therefore at the time the visa applicant applied for a Subclass 457 visa, he did not hold a substantive visa.
The Tribunal is satisfied that the visa applicant ceased to hold a substantive visa on or after 1 September 1994. The visa applicant meets Schedule 3 criterion 3004(a). The visa applicant therefore must meet Schedule 3 criterion 3004(c) – (h).
The delegate was not satisfied that the visa applicant met criterion 3004(d) which requires that there are compelling reasons for granting the visa. The review applicant provided to the Tribunal additional evidence which satisfies the Tribunal that there are compelling reasons for granting the visa. The review applicant gave evidence at the hearing and provided documentary evidence that it is continually advertising and seeking to recruit slaughtermen, boners and slicers for the business, Bindaree Beef, which is an abattoir and beef processing plant that supplies to the domestic market and exports to China. The review applicant continually advertises to recruit suitable candidates for positions through job agencies, the company website and a large billboard at the front of the plant. The advertising campaign is ongoing. They display their vacancies Australia wide. The Tribunal accepts that the review applicant’s skills are required and sought by the review applicant. The Tribunal is satisfied that the applicant meets criterion 3004(d).
The Tribunal also accepts on the evidence that the visa applicant has complied substantially with the conditions of visas that he has held and that he intends to comply with the conditions subject to which a visa is granted. The visa applicant gave evidence at the hearing that he had to pay the Minister’s costs of $6,641 after the court hearing. He had already paid about $6,000 by the date of the Tribunal hearing and was due to pay the balance by January 2017.
However, the criterion that the Tribunal finds the visa applicant does not meet is criterion 3004(c). The Tribunal has considered the evidence, but is not satisfied that the visa applicant is not the holder of a substantive visa because of factors beyond his control.
The applicant’s last substantive visa was a Subclass 676 Tourist visa which ceased on 16 June 2013.
The Tribunal has had regard to the judgment in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 of Smith FM who 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 at paragraph 17:
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.
The Tribunal has considered whether the visa applicant, in his own particular circumstances, might have been able to do something to prevent the relevant event occurring. The information before the Tribunal is that the visa applicant applied for a Subclass 457 on 14 June 2013 and a different employer, Oz Halal, applied to sponsor the visa applicant but this nomination was refused in November or December 2013. The Tribunal is satisfied that the visa applicant chose to apply for the Subclass 457 visa in 2013 with the support of a sponsor that lodged a nomination application at about the same time. It was within the visa applicant’s control to apply for the visa with the support of a sponsor.
The nomination by Oz Halal was refused, according to the evidence of the review applicant. The visa applicant applied to the MRT for review, but the MRT found it did not have jurisdiction to review the case. Again, the Tribunal is satisfied that the visa applicant chose to apply for review and it was within the visa applicant’s control to lodge the application for review with the MRT. The visa applicant then applied for judicial review with the Federal Circuit Court of Australia which dismissed the application in about April 2015. The Tribunal is satisfied that the visa applicant applied for judicial review and it was within the visa applicant’s control to lodge the application for judicial review with the Federal Circuit Court of Australia.
The visa applicant obtained employment with a new sponsor, the review applicant, and departed Australia in February 2015 to apply for the Subclass 457 visa (the subject of this review) offshore. The Tribunal is satisfied that the visa applicant departed Australia for the purpose of applying for the Subclass 457 visa offshore. However, he then made a decision to return to Australia before the delegate made the decision to refuse the Subclass 457 visas to the visa applicants. The result of that decision to return to Australia before the delegate’s decision was made was that the visa applicant had to meet criterion 3004. The Tribunal is satisfied that the decision to return to Australia in March 2015 was within the visa applicant’s control.
Although it is claimed that the visa applicant had to return to Australia for the hearing at the Federal Circuit Court of Australia on 7 April 2015, it was the visa applicant’s decision to firstly apply for judicial review, to proceed with that application and to attend the hearing. The Tribunal is satisfied that the decision to apply for judicial review, to proceed with that application and to attend the hearing was within the visa applicant’s control.
The review applicant gave evidence that the visa applicants stayed in Australia because of the debt they had incurred as a result of the Court proceedings and they were advised that the debt had to be paid before a decision was made on the Subclass 457 visa. However, the Tribunal is satisfied that the decision to remain in Australia to pay off the debt to the Commonwealth after the dismissal of the Court proceedings was within the visa applicant’s control.
The Tribunal has considered all the evidence but is not satisfied that the visa applicant is not the holder of a substantive visa because of factors beyond his control. The Tribunal finds that the visa applicant does not satisfy criterion 3004(c).
Accordingly, the visa applicant does not satisfy criterion 3004.
As the applicant does not satisfy Schedule 3 criterion 3004, it is unnecessary to consider whether he satisfies Schedule 3 criteria 3003 and 3005.
For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.457.221A.
There is no evidence before the Tribunal that the second, third and fourth named applicants meet the primary criteria for the grant of the visa. The second, third and fourth named applicants do not meet cl.457.321 which has to be satisfied at time of decision. The second, third and fourth named applicants are not members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.
The Tribunal accepts that the visa applicant’s skills are highly valued by the review applicant and that the review applicant wishes for the visa applicant and the second named visa applicant to continue working for the review applicant. The Tribunal accepts that there are difficulties in finding workers with the visa applicant’s skills in Inverell. The Tribunal also accepts that the visa applicant has made efforts to repay the debt to the Commonwealth and has been repaying the debt. The visa applicant and his family have settled into the community and have found support there from the community and the review applicant.
However, the Tribunal has found that the visa applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa and the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
D. Dimitriadis
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
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.

[2017] AATA 439

21 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness