Elsafi (Migration)

Elsafi (Migration) [2021] AATA 287 (12 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohamed Elsafi
CASE NUMBER:  1713230
DIBP REFERENCE(S):  BCC2016/3492517
MEMBER:Alison Mercer
DATE:12 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 12 February 2021 at 1:36pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – application made more than 28 days after last substantive visa held – factors beyond applicant’s control and compelling reasons for granting visa – difficulty finding sponsor and stress of returning to home country – would not have been entitled to visa on last day substantive visa held – position nomination application now approved – applicant’s value to employer’s business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.211, 457.223(4)(a), Schedule 3, criterion 3004(c), (d), (f)(i)

CASE
Kaur v MIBP [2018] FCCA 141

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 5 June 2017 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 20 October 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 delegate refused to grant the visa on the basis that cl.457.211 was not met, which required (in summary) that if the application was made at a time when the applicant had ceased to hold a substantive visa, he satisfied Public Interest Criteria (PIC) 3003, 3004 and 3005 in Schedule 3 to the Regulations. The delegate found that the applicant did not satisfy PIC 3004, which required (amongst other things) that:
·the applicant was not the holder of a substantive visa because of factors beyond the applicant's control; and
·there were compelling reasons for granting the visa; and
·the applicant had complied substantially with the conditions that apply or applied to 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 any subsequent bridging visa; or the conditions that apply or applied to 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 any subsequent bridging visa; and
·either 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 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
·the applicant intended to comply with any conditions subject to which the visa was granted; 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 a further entry permit, while the holder remained in Australia.
The delegate found that the applicant was not the holder of a substantive visa at the time he made his subclass 457 visa, as his last substantive visa (a subclass 572 visa) had expired on 15 July 2016. The delegate noted the applicant’s submissions that he applied for the subclass 457 visa more than 28 days since he last held substantive visa because he got caught between finding the right sponsor and the stress of going back to the United States and he became discouraged and lost his focus. He said that he lost hope when he failed to find a legitimate sponsorship, became depressed and decided to return to the US, but on the same day that he came to that decision, he received a call from Mr. Haider, the owner of Tottenham Smash and Repair Centre offering him a job and sponsorship. The delegate found that ‘factors beyond the applicant’s control’ referred to circumstances ‘external’ to the applicant, over which they had no control. The delegate stated that he was not satisfied that finding the right sponsor and stress about going back to US was a factor that was beyond the applicant’s control. The delegate concluded that given that the applicant had not provided evidence to demonstrate external circumstances beyond his control which led to him becoming a person in Australia without a substantive visa, he was not satisfied that clause 457.211 was met.
The delegate therefore refused to grant the applicant a subclass 457 visa, noting that he had made no claims against any stream apart from the SBS stream.
The Tribunal received a review application from the applicant on 21 June 2017. It was accompanied by a copy of the delegate’s decision.
On 18 February 2020, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, to invite him to comment on or respond to information. Specifically, the Tribunal advised that the particulars of the information were:
·Departmental records indicate that at the time the applicant applied for the visa, on 20 October 2016, he was not the holder of a substantive visa;
·Departmental records indicated that the last substantive visa held by the applicant was a subclass 572 visa which was in effect until 15 July 2016; and
·Departmental records indicate that as at 15 July 2016, the applicant was not the subject of an approved nomination of an occupation made under s.140GB of the Act by an approved sponsor which has not ceased.
The Tribunal advised that the above information was relevant because one of the requirements for the grant of the subclass 457 visa is that if the applicant was in Australia and did not hold a substantive visa at the time of application, he had to satisfy the applicable Schedule 3 criteria, which relevantly included 3004. The Tribunal further noted that criterion 3004(f)(i) required the Tribunal to consider whether the applicant would have been entitled to be granted the visa if he had applied for it on the day he last held a substantive visa. The Tribunal advised that in Kaur v MIBP [2018] FCCA 141, the Court confirmed that the relevant time for assessing whether an applicant would have been entitled to be granted the visa if they applied for the visa on the date they last held a substantive visa, including the assessment of the time of decision criteria, is the date on which the substantive visa was last held.
The Tribunal further indicated that, having regard to the Court’s considerations of the relevant provision, if the Tribunal relied on the above information, it would have to find that on the day the applicant last held a substantive visa, being 15 July 2016, he would not have been entitled to a subclass 457 visa because he would not have met the requirement in cl.457.223(4)(a) which requires that a nomination of an occupation made under s.140GB by an approved sponsor has been approved. Consequently, the Tribunal would have to find that the applicant would not have been entitled to be granted the visa if he had applied for it on 5 July 2016 and it would have to go on to find that he did not meet cl. 3004(f) in criterion 3004 for the purposes of cl.457.211. The Tribunal stated that if it found this, this would be the reason (or part of the reason) to affirm the decision under review.
The Tribunal invited the applicant to give comments on or respond to the above information in writing by 3 March 2020.
On 2 March 2020, the Tribunal received a response from the applicant, the contents of which are as follows:
I am writing in response to the application for review made by me in respect in a decision to refuse to grant a Temporary Business Entry (Class UC) visa.
I am an American citizen, and arrived on Subclass 572 visa which was in effect until 15 July 2016, I have always complied substantially with my previous visa condition and I have always been a person with a good character, who respects the Australian law, particularly the Australian Migration provisions.
I would like to inform you that, I have complied with any condition subject on my visa, and I intend to comply with any condition subject to the visa is granted.
I am writing this submission to request kindly the Minister to consider my application, because of compelling and compassionate ground circumstances developed beyond my control.
I was severely sick and unable to perform my every day duties as I was in a medical condition, and I was suffering from anxiety, depression and insomnia between 23/07/2016 and 25/07/2016 which led me to a great suffering and pain.
Talking about my depression and anxiety can be hard. I want to scream it out to the world. I was so scared of being judged and rejected, I had depression and anxiety, I pick at my fingers daily (sometimes without even noticing it) as a way to calm myself down. I often laid at home on the couch, in the dark starring at the ceiling and just thinking of my wife and kids back home.
My depression has changed my life. It’s an awful thing to experience. It has impacted my relationships, friendships, how I act, how I think and how interact with others. It made me not to engage in conversation and not to talk about myself. It told me no one wants to hear it because no one cares. It’s affected how I slept, it was very exhausting experiences in my entire life. It wasn’t until I decided help from others and open up about my depression and anxiety. I have started taking medications and had talked to professionals. This was the best decision I have made to help myself and go over it.
I am telling you this not to make you feel bad for me or worry about me, telling you this in order to asses my situation and kindly waive criterion 3004 of the Migration Act due to my illness which made left without substantive visa.
I want you to know the true me, who I am, the bright, energetic personality which I know is inside me somewhere. It has been difficult searching for my self-amidst so much pain. A huge part me has been pushed down and locked up, I was battling the terrible monster to the save the man I was always dependent doing my staff by myself without relying on any one at all. This was my situation which forced me for applying for the 457 visa without holding a substantive visa.
In regard of cl.457.223(4)(a) which requires that a nomination of an occupation made under s.140GB by an approved sponsor have been met and the relevant standard business sponsor and nomination have been provided and I am attaching all necessary documents in this letter, however I will provide any other request.
I strongly believe that I should have been entitled to be granted the visa due to the compelling and compassionate ground which occurred beyond my control.
I am appealing to you to kindly asses my situation and waive criterion 3004(f) due to my unbearable circumstances, hopefully my response satisfies the legal requirements for approval.
Finally, I hope that you kindly understand my situation make a favourable decision on this matter and I would highly appreciate your cooperation in granting me the visa.
Note that, all necessary documents and medical certificate have been attached with letter.
The supporting documents provided included a medical certificate dated 26 February 2020 certifying that the applicant was unfit for work between 23 and 26 July 2016 and was suffering from insomnia, anxiety and depression.
On 3 June 2020, the Tribunal wrote to invite the applicant to a telephone hearing (due to the COVID19 pandemic restrictions, the Tribunal was unable to offer an in person hearing) on 23 June 2020.
On 10 June 2020, the applicant responded to indicate that he would attend the hearing.
On 17 June 2020, the Tribunal wrote again to the applicant to advise that due to unforeseen circumstances, it was unable to hold the hearing on 23 June 2020 but would write to the applicant in due course with a new hearing date.
On 22 October 2020, the Tribunal wrote again to the applicant to invite him to attend a hearing on 10 November 2020, to be held by teleconference.
The applicant appeared before the Tribunal on 10 November 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant told the Tribunal that he came to Australia to study Automotive Mechanics. Prior to that, he was living in the United States (US) with his wife and 2 children, working in motor mechanics in New York. He explained that he wanted to come to Australia because much of his extended family lived here. He hoped to qualify here as a Motor Mechanic, and then get employment sponsorship for temporary and then permanent residence. In response to the Tribunal’s query, the applicant said that his 5 brothers and 1 sister and their families live in Sudan, where his family is originally from, but he migrated to the US, and in Australia, he has 4 cousins and his wife has 3 sisters and a brother. The applicant said that his parents are deceased, as is his wife’s mother, although her father is alive in Egypt. The applicant told the Tribunal that originally, his wife and children came with him to Australia while he was studying but they returned to the US after his student visa ceased as it was financially difficult for him to support them after he ceased to be able to work even 20 hours per week. The applicant said that his wife and children went back to the house he owned in New York. At present, his wife is working doing cleaning, his son is 19 and has been accepted into a pre-med course at the University of Columbia on a full scholarship, and his 11 year old daughter is still at school. The applicant said that he was living with 1 of his sisters-in-law and her family in Melbourne since then, but had not been able to work or study due to the conditions of his bridging visa.
When asked about the circumstances leading to him ceasing to hold his student visa on 15 July 2016 but not applying for the subclass 457 visa until 20 October 2016, the applicant confirmed that he was very stressed at the time, as he was trying to support his family, finish his course and tee up employment and sponsorship with an Australian employer, which proved difficult. The applicant said that he had several Australian employers were interested but the fact that they would have to sponsor him for a visa put some of them off. He said that Mr Haider was interested in sponsoring and nominating him at this time, but did not commit to do so until after the applicant’s student visa expired. The applicant confirmed that he suffered from depression and anxiety during this time, as evidenced by the medical certificate he provided to the Tribunal. The Tribunal noted that the medical certificate certifies that he suffered from a medical condition (anxiety, depression and insomnia) between 23 and 25 July 2016, and asked the applicant whether he suffered from these conditions for a longer period. The applicant estimated that he suffered severely from these conditions for about 3 months. He thought that the medical certificate was towards the end of that period but it was difficult for him to remember. He reiterated that he was very stressed by the prospect of having to return to the US and possibly not being able to find work to support his family.
In response to the Tribunal’s query, the applicant said that he spoke to his employer, Mr Haider, shortly before the hearing, and Mr Haider still wanted to employ him if he got the subclass 457 visa. The Tribunal noted that it had to be satisfied that there were compelling reasons for granting the visa, and one of the issues relevant to this was whether the employer could find someone locally to fill the role originally offered to the applicant, especially as the labour market had changed since the COVID19 pandemic. The applicant said that he thought that he could get a letter from Mr Haider supporting the application. He noted that Mr Haider wanted him as he had experience with trucks. The applicant said that his family connections here were compelling to him. He reiterated that a lot of his extended family were here, and he thought living conditions were better here than in the US. In addition, his wife and children had loved living here. In response to the Tribunal’s query, the applicant said that most of his anxiety and depression lifted when his son was accepted into University on a scholarship and he was not currently being treated for depression or anxiety.
The Tribunal agreed to defer its decision until 24 November 2020 to enable the applicant to get a letter of support from Mr Haider if possible, noting that its main concerns were whether it could be said that the reasons for the applicant making the subclass 457 visa after he ceased to hold a student visa could be said to be beyond his control, and whether there were compelling reasons to grant the visa. The applicant queried what would happen if the Tribunal affirmed the refusal decision. The Tribunal noted that normally, an applicant’s bridging visa would expire within 28 days of being notified of a negative Tribunal decision, unless that applicant departed Australia, made another visa application (if that were possible, given the limitations on this for persons who had a visa refused already while in Australia) or applied for judicial review. It further noted that it could not give him migration advice but strongly advised him to contact the Department to discuss his options in the event of the refusal decision being affirmed as it was acknowledged by the Department that, even if some people wanted to depart Australia, COVID19-related travel restrictions might prevent them from doing so.
On 24 November 2020, the Tribunal received a letter from Mr Haider (via email), the contents of which were as follows:
…
I am writing in relation to the application for review made by my nominated employer Mr Mohamed Alsafi in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.
First of all, thank you for giving me this opportunity to submit this reference letter to support Mr Alsafi application for a Temporary Business Entry visa.
I have the honour to nominate Mr Alsafi to work and fill this position in my business and I have come to know him as diligent and hardworking skilled professional.
Additionally, he is honourable and morally upstanding and I am confident that he will make a great contribution to my business.
I first got to know Mr Alsafi when he visited my job site in December 2015 in Melbourne and demonstrated his experience and interest to be sponsored in order to share his knowledge to my business.
Over the course of my brief interview and discussion with him, I noted that Mr Alsafi is extremely bright, with innovative ideas which will help my business to grow and generate more profit. He is outstanding team player with a great deal of experiences and he expressed a genuine interest for the position that I am offering him.
I am confident that Mr Alsafi is a type of a citizen that will thrive in the opportunities that are offered to him in my business in Melbourne for a talented professional such as himself.
In relation to COVID-19 impact in our business, we had some impact due to the closure of a lot of businesses, however we managed to overcome, and we are running well at this stage and we start to recover and we are doing considerably well now. Our business is still needing Mr Alsafi to the fill the position and we have already provided the nomination documents to the Department.
We have previously tried to hire a local candidate for this position, unfortunately we could not find a suitable person to fill the position, therefore we decided to nominate Mr Alsafi to be offered this position, he is an experienced motor mechanic not only cars but also heavy trucks as well.
The reason for submitting the application late for Mr Alsafi because of circumstances beyond my control such waiting for the nomination approval from the Department of Immigration, I had to wait for some time until I got the approval.
I believe that Mr Alsafi has a compelling reason to hire him, because of his extensive experiences and he has a multiple skill which will benefit my business; therefore, I am appealing to AAT to consider his application for the sake of national interest of an Australian business. Because of his good character and skills, I have a great honour for me to consider him to be nominated and sponsored to work for me in my business.
I sincerely believe that he will be a wonderful addition to my business and to the country, and I am pleased to give him my endorsement for his immigration application to grant him a Temporary Business entry (Class UC) Visa.
Sincerely
Muhammad W Haider
…

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant is not the holder of a substantive visa because of factors beyond his or her control
The applicant gave written and oral evidence that he suffered from depression in July 2016, and for some months prior to this (on his estimate) due to the stress of trying to find an Australian employer to sponsor him for a subclass 457 visa or having to return to the US. He has provided a medical certificate stating that he was suffering from insomnia, anxiety and depression from 23 to 26 July 2016, but this certificate does not refer to a longer period.
The applicant’s proposed Australian employer Mr Haider has stated in his letter of 24 November 2020 that it took some time for the Department to process and approve his nomination of the applicant, and this was beyond the applicant’s control. However, on the applicant’s own evidence, Mr Haider did not lodge the nomination until after the applicant’s student visa expired on 15 July 2016, although it appears that they were in discussions about a potential sponsorship and nomination prior to this, in or about December 2015. The nomination reference number given by Mr Haider refers to nomination made in December 2016 and approved in May 2017. Neither the applicant nor Mr Haider have explained why action to lodge the nomination and sponsorship approval applications was not taken earlier by Mr Haider, given Mr Haider’s written evidence that he had discussions with the applicant about this in December 2015. However, it is possible that the written reference to December 2015 in Mr Haider’s letter is an error, and should read December 2016. In any case, it is clear that no nomination had been made at the time that the applicant’s student visa expired on 15 July 2016, by Mr Haider or any other Australian employer.
The Tribunal has had regard to Departmental policy (as set out in the most recent version of the Department’s Procedures Advice Manual, or PAM3) on ‘factors beyond control,’ issued 20 January 2021), which provides as follows:
…
Two separate considerations
Criteria 3003(c) and 3004(c) require the decision-maker to be satisfied that the applicant became an illegal entrant or a person without a substantive visa because of factors beyond the applicant’s control.
Two requirements must be satisfied:
·there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and
·those factors must have been beyond the applicant’s control.
The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa.
14.2 Meaning of ‘beyond the applicant’s control’
The phrase ‘factors beyond the applicant’s control’ is to be given its natural meaning and considered against all relevant circumstances of the applicant.
The test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances that were “external” to the applicant and over which they had no control.
Some circumstances may clearly meet the test, for example where a serious accident or illness renders the applicant incapable of making an application.
Other situations will be more difficult to assess, for example where an applicant claims to have:
·been unaware that they were an illegal entrant or without a substantive visa or
·misunderstood the period during which their visa was in effect or
·misunderstood the conditions attached to their visa.
Claims by an applicant that they were unaware they were an illegal entrant, or without a substantive visa, should be considered on a case by case basis. The mere fact that an applicant makes such a claim would not, on its own, constitute a circumstance beyond their control. In some instances, an applicant’s lack of awareness may, however, be attributable to a circumstance over which the applicant had no control, for example, if the applicant’s visa was not correctly evidenced and the visa ceased on a date earlier than the date specified on the visa label.
Similarly, claimed misunderstandings relating to when a visa is in effect or to the conditions attached to a visa should be considered on a case by case basis. It is reasonable to assume that a visa holder is aware of the period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is when file records indicate that incorrect advice was given by the department.
While the Tribunal is aware that policy is not binding on it, it considers that it is relevant to take it into account where it does not purport to impose more stringent requirements than the underlying legislation itself. In this case, the Tribunal does not consider that the above policy impermissibly imposes more stringent requirements than PIC 3004(c) itself.
Having considered the applicant’s circumstances carefully, the Tribunal has doubts about whether the applicant became a person without a substantive visa for reasons beyond his control. The applicant’s evidence was that he was aware of the expiry date of his student visa but was unable to find a nominating employer in order to apply for a subclass 457 visa before its expiry on 15 July 2016, as he did not meet Mr Haider until later in 2016 and other employers were not interested in nominating him or seeking approval as sponsors. The Tribunal notes that it was open to the applicant to apply for a further visa of another kind (such as a visitor visa), or to depart Australia and apply offshore for another visa, prior to the expiry date of his student visa, but he chose to remain in Australia after its expiry.
The applicant also said that in this period, he was suffering from insomnia, anxiety and depression associated with the stress of potentially having to return to the US, and that this affected him and was beyond his control. He provided a medical certificate to this effect, and although that certificate only refers to a 3 day period after the expiry of the applicant’s student visa (23 to 26 July 2016), the Tribunal is prepared to accept that the applicant was most likely suffering from these conditions prior to those dates.
Although the matter is not free from doubt, the Tribunal extends the benefit of the doubt in this case and accepts that due to his mental health issues, the applicant was not able to arrange for an Australian employer to sponsor or nominate him prior to the expiry of his student visa. It accepts that his mental health issues constitute factors beyond his control.
There are compelling reasons for granting the visa
The applicant gave evidence that he had been unable to commence employment with Mr Haider to date, despite the nomination being approved in May 2017, because he had held a bridging visa without work rights since making the subclass 457 visa application in October 2016. However, he maintained that Mr Haider still wished to employ him; in particular, due to his previous work experience with heavy trucks.
In his letter of 24 November 2020, Mr Haider confirmed that this was the case, and argued that it was compelling for the interests of the business and of Australia for the applicant to be granted a subclass 457 visa to commence working as a Motor Mechanic for him. He further stated that he had advertised to fill the position but had not found any suitable candidates and therefore wanted to employ the applicant because of his experience, skills and good character. Mr Haider said that his business had experienced a downturn during the COVID19 pandemic but was now recovering and he had a need to employ the applicant.
Again, while acknowledging that Departmental policy is not legally binding on the Tribunal, the Tribunal had regard to PAM3 (as at 20 January 2021) on this issue for some guidance. It provides as follows:
…
Criteria 3003(d) and 3004(d) require the decision-maker to be satisfied that there are compelling reasons for granting the visa.
‘Compelling’ is not defined in migration legislation and should be given its normal dictionary meaning: “brought about by moral necessity”.
Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person.
Circumstances beyond the applicant’s control may also constitute compelling reasons for granting the visa. For example, if the applicant became an illegal entrant, or without a substantive visa, due to a serious accident or illness, such might, depending on the circumstances, satisfy both 3003(c)/3004(c) and 3003(d)/3004(d).
All the circumstances of the case, individually and cumulatively, should be considered in determining whether there are compelling reasons for granting the visa.
Consideration of the likely consequences of not granting the visa may assist in considering whether particular circumstances are compelling.
The Tribunal gives weight to the fact that the applicant has not been able to work for Mr Haider for over 4 years, yet Mr Haider’s business is still operating. Although Mr Haider has stated that the applicant has valuable skills with heavy trucks, he has not identified that these skills are unique to the applicant and/or unlikely to be found in other Australian motor mechanics, or why they are of particular value to his business. Moreover, although Mr Haider stated that he had advertised locally but not attracted any suitable candidates, he did not provide details of when the position was advertised, who responded, and why any other candidates were unsuitable. The Tribunal is not satisfied that the applicant and Mr Haider have demonstrated that there are compelling reasons for either of them to grant the applicant a subclass 457 visa. Mr Haider did not identify any significant adverse consequences for his business if the applicant was not granted a subclass 457 visa.
The Tribunal further notes that the applicant also submitted that there were compelling personal reasons to grant him a subclass 457 visa, as he had several cousins in Australia, and a number of his wife’s relatives also lived here. While this may be so, the Tribunal does not find this to be a compelling reason to grant the applicant a subclass 457 visa, given that (a) the subclass 457 visa program is intended to fill labour market shortages for Australian employers, and not for family reunion purposes, and (b) the applicant’s immediate family (his wife and 2 children) remain in the US, and he has siblings in Sudan. The Tribunal notes the applicant’s evidence that he considers the lifestyle in Australia preferable to the US, but does not consider this, or his extended family in Australia, to constitute a compelling reason to grant him a subclass 457 visa.
Accordingly, the Tribunal is not satisfied that PIC 3004(d) is met.
As the subparagraphs of PIC 3004 are cumulative, failure to meet 1 of them means that the applicant cannot meet PIC 3004 as a whole, and it is unnecessary for the Tribunal to consider the remainder of the criteria in PIC 3004(e) to (h), or PIC 3005.
The Tribunal finds that the applicant does not satisfy the criteria in PIC 3004 and therefore cannot meet 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.
Alison Mercer
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.

[2021] AATA 287

12 February 2021

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

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