Gill (Migration)

Gill (Migration) [2017] AATA 1584 (29 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jagroop Singh Gill
CASE NUMBER:  1516805
DIBP REFERENCE(S):  BCC2015/3078787 clf2015/79183
MEMBER:Catherine Carney-Orsborn
DATE:29 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Statement made on 29 August 2017 at 3:00pm

CATCHWORDS

Migration – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – Schedule 3 criteria – No compelling reasons for granting the visa – Applicant does not satisfy criterion 3004

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 402.211, Schedule 3, 3002, 3003, 3004, 3005

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 26 November 2015 to refuse to grant the visa applicant a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 October 2015. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).
The criteria for a Subclass 402 visa are set out in Part 402 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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.
In the present case, the applicant is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visa because the applicant did not meet cl.402.211(b)(ii) of Schedule 2 to the Regulations because he did not meet the Schedule 3 criteria.
The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the applicant satisfied Schedule 3 criterion 3004.

Schedule 3 criteria

An applicant who is not the holder of a substantive visa at the time of application must meet two requirements in order to satisfy cl.402.211. Firstly, the last substantive temporary visa held by the applicant must not be one of the visas set out in cl.402.211(a). Secondly, they must satisfy Schedule 3 criteria 3002, 3003, 3004 and 3005.
It is not in dispute that the applicant in the present case did not hold a substantive visa at the time of application. Based on the evidence before it, the Tribunal is satisfied that the last substantive visa held by the applicant was not one of those mentioned in cl.402.211(a). Accordingly, the issue in this case is whether the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005. These criteria are set out in an attachment to this decision.

Criterion 3002

In order to satisfy criterion 3002, the present application must have been validly made within 12 months after the ‘relevant day’, within the meaning of criterion 3001(2) (set out in the attachment to this decision).
The present application was made within 12 months of the last day he held a substantive visa.
As the visa application was made within 12 months of the relevant day, the applicant satisfies criterion 3002.

Criterion 3003

Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or 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.

Criterion 3004

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 1 September 1994 and have not subsequently been granted a substantive visa.
It requires that the Minister 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 applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa, or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and if the last visa held (if any) 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’s last substantive visa ceased in July 2015. He lodged an application for a Training and Research subclass 402 visa on 20 October 2015. At the time the application was lodged the applicant was in Australia and not the holder of a substantive visa.
The applicant provided written submissions which are on the Department file. He also appeared at a hearing on the 28 August 2017. A summary of the applicant’s oral evidence is as follows.
He first arrived in Australia around July 2009. He was on a student visa and was studying cookery/hospitality. He stayed on various student visas up until 2014. During that time he studied business/Administration, tourism and Marketing. His evidence is that he finished all those courses and worked for short periods of time.
In 2014 he worked as an Assistant Manager in the Transport Industry in Sydney for Sahib Transport pty ltd. He states that he worked there from 2013 to 2016. He states that he had to undergo training in Melbourne.
He applied for a spouse/partner visa in 2014. In 2014 he was granted a subclass 820 visa. At hearing he stated that the relationship ceased and he withdrew his application. He states that he decided to withdraw his application as the relationship had ended. He states that he informed his solicitor that he did not want to continue with the application and to withdraw it.
When he had a partner visa he applied for a subclass 457 which is a temporary work visa. He claims that his sponsor was Sahib Transport.
He claims that Mckkrs was his sponsor. He worked in that company for four months and the purpose of his work there was for training for his position in transport.
He claims that the nomination by Sahib was refused. He lodged an application for review with the Migration Review Tribunal. He states he was advised that he should withdraw as the application would be unsuccessful. He claims that he won his case in the migration Review Tribunal and his training started in Melbourne in April 2016.
He claims that the Sahib Transport Company said that he can apply for his 457 off-shore. He states that the department of immigration rejected his subclass 402 visa straight away. He states that this was because he did not have a substantive visa at the time of application.
He claimed he had fulfilled all the conditions of his previous visas. He had worked with Sahib for three years and they trained him.
He claims he had started the training on the subclass 402 visa and that he was told he could apply for a subclass 457 visa off-shore. He claims the subclass 402 visa was refused. He was given a bridging visa. He states that he applied to the Migration review Tribunal during that period and he had no right to a review.
The Tribunal asked whether he was saying all the above things were beyond his control. He replied yes. He said compelling circumstances were that he had three years at the same company and they require a manager in Western Australia and they are willing to sponsor him.
The applicant stated he is single and has no children.
The applicant’s representative then went through the submissions he had supplied. He stated he needed to clarify the applicant’s evidence. In summary he stated that it was beyond the applicant’s control that his relationship ended and he withdrew his partner visa. He applied for a subclass 457 visa within the required time frame.
He claims that the business that sponsored him wanted to expand to Western Australia. He said that the appropriate nomination was not in place however there was a case from the high court which changed all that.
He claims that the applicant had no other option but to withdraw his application for a visa as at that time it would not have been successful.
He states that the applicant made use of his time after his application for a subclass 402 visa to receive future training and to move to Western Australia.
He was told to leave the country to apply for a subclass 457 visa.
The Tribunal again asked the representative to address the compelling needs. He stated that an Australian business needs his skills and his position still exists. He claims that there was no way he could have had a substantive visa at that time. He said the original nomination was subsequently approved and the position was found to be genuine. He said that compelling reasons are that an Australian company needs to expand to Western Australia.
The Tribunal pointed out that the department made the decision which is the subject of this review in November 2015 and asked if the business was still operating.
The representative stated that the business still operated however there was no branded office in Western Australia. He claims that the applicant was to open an office in Western Australia.
He claims that the applicant never overstayed and was never unlawful (“as far as he knows”).
The Tribunal has the written submissions before it which it has considered. The written submissions go through in detail the issue of the applicant’s visa history in relation to the above. The applicant’s relationship broke down and he claims that as a result he withdrew the provisional partner visa. He then applied for a subclass 457. This was the subject of a review at the AAT. It was not successful. He claims it would have been successful if jurisdiction had been found. The applicant claims that this led to a series of events which resulted in him not having a substantive visa and him leaving Australia to apply offshore.
The Tribunal does not have any details before it in relation to the relationship breakdown. However it is a consequence of the legislation that if there is no relationship then there is no basis for a partner visa. The decision made on the subclass 457 visa was also a result of relevant legislation which existed at the time of decision. The applicant submits that as the law changed after the decision he would have jurisdiction. The applicant may have had jurisdiction to proceed to have his matter reviewed at the Tribunal however it is merely speculative as to what the final outcome of his application for a subclass 457 visa would have been. The applicant states that he left Australia to apply offshore as he thought he would be granted a visa. Again this is mere speculation on the part of the applicant. It was also something he chose to do.
The Tribunal asked the applicant to go through compelling circumstances. In summary the compelling circumstances were the need of the company which had sponsored him in 2015 to expand and open a new office in Western Australia.
The Tribunal does not accept that the need for a company to expand and open a new office in Western Australia depends on one trainee position. The Tribunal does not accept that any business which was operating for profit would be able to wait nearly two years to place one person. It would not make commercial sense that they could not train or use someone else in the time from when the application was lodged in October 2015 until the present date.
After considering all the evidence before it the Tribunal is not satisfied that there are compelling circumstances for granting the visa.
For the above reasons, the applicant does not satisfy criterion 3004.
For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.402.211.
The applicant has only sought to satisfy the criteria for a Subclass 402 visa in the Occupational Trainee stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Occupational Trainee stream have not been met, the decision under review must be affirmed.

DECISION

The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Catherine Carney-Orsborn
Member

ATTACHMENT - Extract from Migration Regulations 1994

Schedule 3

(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)the last day when the applicant held a substantive or criminal justice visa; or
(iv)the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i)the day when that last substantive visa ceased to be in effect; and
(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.
The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).
If:
(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.
If 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.
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:
(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.
Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.

[2017] AATA 1584

29 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness