Elsafi (Migration) - [2021] AATA 287

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elsafi (Migration)

Details

AGLC: Elsafi (Migration) [2021] AATA 287
Case: [2021] AATA 287
Decision Date: 12 February 2021

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream, made by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant satisfied the relevant Schedule 3 criteria, specifically criterion 3004, which applies to applicants who have ceased to hold a substantive visa or entered Australia unlawfully. The applicant contended that their failure to hold a substantive visa was due to factors beyond their control, including depression stemming from the stress of finding a sponsor or returning to their home country, and that compelling reasons existed for granting the visa.

The Tribunal considered whether the applicant met the requirements of criterion 3004. This criterion necessitates satisfaction that the applicant is not the holder of a substantive visa due to factors beyond their control, that compelling reasons exist for granting the visa, and that the applicant has complied substantially with the conditions of their previous visas. Crucially, it also requires the Tribunal to be satisfied that the applicant would have been entitled to the visa on the day they last held a substantive visa or entered Australia unlawfully, and that they intend to comply with the visa conditions. The applicant provided evidence of depression and anxiety, but the medical certificate covered a limited period and did not establish that these conditions prevented them from obtaining a substantive visa throughout the relevant timeframe.

The Tribunal found that criterion 3003 was not applicable to the applicant. Regarding criterion 3004, while acknowledging the applicant's stated difficulties, the Tribunal was not satisfied that the applicant's failure to hold a substantive visa was due to factors beyond their control for the entire period in question. Furthermore, the Tribunal noted that the applicant would not have been entitled to the visa on the day they last held a substantive visa, despite the subsequent approval of their position nomination. Consequently, the Tribunal concluded that the applicant did not satisfy the applicable criteria for the grant of the subclass 457 visa.

The Administrative Appeals Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEDoes 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.

Decision

Reasons for decision

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 MercerMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.Alison MercerMemberATTACHMENT - 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.