DeLeon (Migration)

[2020] AATA 2795

DeLeon (Migration) [2020] AATA 2795 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alvin DeLeon
Mrs Jocelyn De Leon
Master Vincent Deleon
Miss Queenie Deleon

CASE NUMBER:  1723011

DIBP REFERENCE(S):  BCC2016/3731052

MEMBER:Andrew George

DATE:23 April 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.211 of Schedule 2 to the Regulations.

Statement made on 23 April 2020 at 3:48pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – no substantive visa at lodgement – factors beyond the applicant’s control – compelling reasons – diligent and industrious employee – migration agent error – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.211; Schedule 3, cl 3004

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 5 September 2017 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 8 November 2016. 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.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.211. The delegate noted that “At the time of application lodgement, the primary applicant was not the holder of a substantive visa and last held a UC 457 on 22 September 2015”. When asked by the Department on 13 July 2017 to provide evidence addressing Schedule 3 Criteria 3004, the applicant failed to respond. The delegate therefore found that clause 457.211 was not met.

4. The applicant appeared before the Tribunal on 5 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jason Mark Hanna, who is the applicants’ employer.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the outset the Tribunal notes that both the applicant and his employer were impressive, and refreshingly honest, witnesses. Without repeating this evidence, it is sufficient to note that the Tribunal is satisfied that the applicant is a diligent and industrious employee. Indeed, the Tribunal also accepts the written statements of Mr De Leon and Mr Hanna, both dated 10 December 2019, in their entirety.

   Does the applicant satisfy the relevant Schedule 3 criteria?

8. 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.

9. 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?

10. 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?

11. 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.

12. 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.

13. 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.

14. The Tribunal has already noted its satisfaction that the applicant is a diligent and industrious employee. Although the Tribunal did not hear from the secondary applicants, two of whom are adolescents, they nevertheless attended the hearing and seemed concerned about its outcome. The Tribunal notes the applicant’s statement dated 8 December 2019 and accepts that his children have now lived in Darwin for 9 years and that it is their home. The Tribunal also notes the applicant’s impecuniosity, no doubt contributed to by supporting his family.

15. The Tribunal notes the letter from the applicant’s agent dated 5 December 2019. The agent was not a sworn witness; however this letter is material evidence as it goes far beyond submission to the point that it concedes error. The Tribunal accepts the contents of that letter and compliments the agent’s professionalism in having made proper concessions in the circumstances.

16. The Tribunal notes the agent’s account of the efforts made to ensure that the correct ANZSCO code was used and the complications that caused. The Tribunal notes that the agent concedes that she omitted to submit material to the Department. The Tribunal is satisfied that it was for this reason that the applicant failed to respond to the Department’s letter of 13 July 2017.

17. The Tribunal is satisfied that sufficiently compelling circumstances exist to meet criterion 3004, particularly taking the agent’s evidence and the applicant’s family into account.

18. There is no evidence before the Tribunal to suggest that the applicant has breached any visa conditions previously, or that he intends to do so in the future.

19. The Tribunal is satisfied that, had it not been for confusion regarding proper ANZSCO codes and the applicant’s impecuniosity, 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 22 September 2015, being the last day the applicant held a substantive visa.

20. Accordingly, the applicant satisfies criterion 3004.

    Is criterion 3005 met?

21. Criterion 3005 requires that a 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 Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or r.35AA, r.42(1A) or (1C) of the Migration (1989) Regulations. There is no evidence of any such grant having been made previously and the applicant satisfies criterion 3005 and the applicant satisfies criterion 3005 for the purposes of cl.457.211.

22. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa. Noting this, the Tribunal also recommends that the applications of the secondary applicants are reconsidered in light of the Tribunal’s findings with regard to the primary applicant.

    DECISION

23. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.211 of Schedule 2 to the Regulations.

    Andrew George
    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.