Gray (Migration) - [2017] AATA 1342

Gray (Migration) [2017] AATA 1342 (27 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Patrick James Gray
CASE NUMBER:  1514639
DIBP REFERENCE(S):  BCC2015/2345762
MEMBER:Alison Mercer
DATE:27 July 2017
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 27 July 2017 at 11:22am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Applicant not the holder of a substantive visa at time of application – Schedule 3 criteria – Additional criteria applicable to unlawful non-citizens – No evidence that applicant is subject of an approved nomination by an approved standard business sponsor
LEGISLATION
Acts Interpretation Act1901 (Cth), s 15AC
Migration Act 1958, ss 45, 46, 65, 359AA
Migration Regulation 1994, r 2.75, Schedule 2, cl 457.211, cl 457.223, Schedule 3, Criteria 3003, 3004, 3005

CASES
Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254
Re Drake (No. 2) (1978-1980) 2 ALD 634
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75

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 8 October 2015 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 14 August 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 delegate refused to grant the visa on the basis that cl.457.211. She noted that this clause applied to applicants who did not hold a substantive visa at the time of their subclass 457 visa applications, and required that they meet the criteria in items 3003, 3004 and 3005 of Schedule 3 of the Regulations. The delegate found that the applicant’s last substantive visa expired on 12 November 2014 and he thus had to meet the relevant Schedule 3 criteria. Item 3004(c) required, amongst other things, that the applicant was not the holder of a substantive visa at the time of his subclass 457 visa because of factors beyond his control. The delegate was not satisfied that the applicant met this requirement, as she did not consider his explanation that he was unaware of his immigration status to be outside his control. She was also not satisfied that there were compelling reasons for granting the visa, as required by item 3004(d).
The Tribunal received a review application from the applicant on 29 October 2015. It was accompanied by a copy of the delegate’s decision and a statement in which the applicant indicated that he was first granted a subclass 457 visa on 14 December 2012, and that the process was handled by a migration agent, Suzanne Farrelly. He…

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 Gray (Migration)

Details

AGLC: Gray (Migration) [2017] AATA 1342
Case: [2017] AATA 1342
Decision Date: 27 July 2017

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by an applicant who did not hold a substantive visa at the time of application. The Tribunal was required to determine whether the applicant met the relevant Schedule 3 criteria, which apply to unlawful non-citizens, and a further criterion under cl.457.223(4)(a) concerning an approved nomination by a standard business sponsor.

The primary legal issues before the Tribunal were whether the applicant satisfied the requirements of cl.457.211 and the associated Schedule 3 criteria, specifically criteria 3003 and 3004, and whether the applicant was the subject of an approved nomination by a standard business sponsor at the time of the Tribunal's decision. The Tribunal noted that the applicant had applied for the visa while not holding a substantive visa, with their last substantive visa having expired significantly prior to the application date.

The Tribunal reasoned that for an applicant in Australia without a substantive visa at the time of application, cl.457.211 requires satisfaction of Schedule 3 criteria 3003, 3004, and 3005. The Tribunal found that criterion 3003 did not apply as the applicant did not meet the specified historical conditions. Regarding criterion 3004, the Tribunal outlined the various sub-criteria that must be satisfied, including that the applicant is not holding a substantive visa due to factors beyond their control, compelling reasons for granting the visa, substantial compliance with visa conditions, and entitlement to the visa on a previous relevant date. The Tribunal concluded that the applicant did not satisfy the applicable criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Temporary Business Entry (Class UC) visa.

Orders

Orders of the court

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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 EVIDENCE The issue in this case was originally whether the applicant meets cl.457.211 and the relevant Schedule 3 criteria; however, another criterion has since emerged as relevant to this case, and that is cl.457.223(4)(a), which requires that at the time of the Tribunal’s decision, the applicant is the subject of an approved nomination by a standard business sponsor. The Tribunal will consider each criterion in turn.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 Department’s records indicate that the applicant made the present application for a subclass 457 visa on 14 August 2015, at which time he did not hold a substantive visa. The Department’s records further indicate that the last substantive visa held by the applicant was a subclass 457 visa which ceased on 12 November 2014. Prior to this, the applicant held another subclass 457 visa, and prior to that held 2 visitor visas. The Tribunal is therefore satisfied that 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 (item 3004(a)), or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa (item 3004(b)). 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 (item 3004(c)), that there are compelling reasons for granting the visa (item 3004(d)), 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 (item 3004(e)). 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 (item 3004(f)); 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 (item 3004(g)), 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 (item 3004(h)).

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.