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

1. 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).

2. 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).

3. 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).

4. 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 said that she advised him over the telephone that the visa was valid for 4 years, and that he did not recall ever receiving a grant letter from the Department with the visa validity period. He stated that it was not until he met another agent to assist him with the process of transferring his visa to a new sponsor, Keady Pty Ltd, that he became aware that he did not hold a substantive visa.  He argued that this was out of his control as he was very unfamiliar with the subclass 457 visa (having previously held visitor visas) and assumed that everything that needed to be done had been done by his agent.  He emphasised that he had not intentionally overstayed and had not broken any laws while in Australia.  He stated that he currently worked for Keady Pty Ltd as a senior member of the business.  While his role was as a Carpenter, he also trained and led employees and assisted with managing the business.  His employer also supported the current application as it would cause financial difficulties to the business if the applicant was not able to continue his employment there.

5. The applicant also provided a statutory declaration dated 22 September 2015 reiterating the contents of his statement and adding that once he became aware from the second migration agent that he was illegal, he obtained a bridging visa E from the Department as soon as possible. He also provided an undated letter from Trevor Meegan, Director of Keady Pty Ltd (trading as Keady Formwork), in which Mr Meegan confirms that the applicant is his employee, and had contributed to training the apprentices of the business and building strong relationships with teams, subcontractors and clients.  Mr Meegan states that he is trying to grow his business and that having someone with the applicant’s skills and knowledge had enabled him to win some large contracts and increase the work for the business.  He stated that the business would suffer without the applicant, and that he would have to let go of the apprentice, who was an Australian, and would have to go through the struggle again of filling the applicant’s position.  He emphasised that the business would suffer a financial loss without the applicant’s contribution and asked for the matter to be favourable resolved due to this risk.

6. On 24 January 2017, the Tribunal wrote to the applicant to invite him to attend a hearing on 3 March 2017.

7. The applicant appeared before the Tribunal on 3 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Trevor Meegan, director of Keady Pty Ltd.

8. At the outset, the Tribunal raised information with the applicant and Mr Keady pursuant to s.359AA of the Act. That information was that the Department’s records indicated that the nomination of the applicant as a Carpenter by Keady Pty Ltd ceased on 28 September 2016, and that there was therefore no approved nomination of him by a standard business sponsor. The Tribunal explained that this was relevant to the decision under review, as it meant that the applicant appeared not to meet another criterion for the subclass 457 visa, being cl.457.223(4)(a). The Tribunal advised that if it found that the applicant did not meet cl.457.223(4)(a), that would be the reason (or part of the reason) for affirming the decision under review. It invited the applicant to comment on the information, noting that he could request additional time to do so if he wished. The applicant indicated that he wanted to respond without additional time to do so.

9. The applicant told the Tribunal that he originally came to Australia with his brother, on visitor visas. They came in part because the economic situation in Ireland was bad and they hoped to find work in Australia. Subsequently, his brother returned to Ireland but he stayed.  The applicant said that his original subclass 457 visa application was made with a company called Image Build.  Around the same time, lots of his Irish friends in Australia were being sponsored by Australian companies and getting 4 year visas.  He assumed that the subclass 457 visa he was granted was also for 4 years.  He did not realise the Department could grant a subclass 457 visa for only 2 years. The applicant said that his agent at the time (Ms Farrelly) simply told him that his application had been successful.  In response to the Tribunal’s query, the applicant said that if he did get any paperwork related to the visa grant from the Department, he didn’t read it.  He believed that the visa was put into his passport, however, as he recalled having to show it to depart and re-enter Australia after a trip home to Ireland.  In response to the Tribunal noting that the Department’s records indicate that the applicant’s subclass 457 visa was valid until 12 November 2014, he said that he thought it was valid for a further 2 years (that is, 4 years in total) until 2016.

10. The applicant told the Tribunal that he ceased employment with Image Build in or about May 2013 after a falling out due to non-payment of the applicant by the business.  He then registered his own company in Australia, Ceide Pty Ltd, and worked for himself as a Carpenter.  In response to the Tribunal’s query, the applicant said that his migration agent, Ms Farrelly, said this was OK, as when he left Image Build, he asked her what he could do.  She told him that he should start his own company and sponsor himself.  She also told him that Ceide Pty Ltd had been approved as a sponsor.  When asked if Ceide Pty Ltd lodged a nomination for him with the Department, the applicant said that he did not know whether it did or not, and was not familiar with what the process was.  He told the Tribunal that he operated Ceide Pty Ltd for 1 to 1.5 years; however, he experienced financial difficulties and so looked for a new employer to sponsor him.  He knew Mr Meegan from his time at Image Build.  In or about August 2015, they had discussions about possible sponsorship by Mr Meegan’s newly established company, Keady Pty Ltd.  They went ahead and since August 2016, the applicant had been working for the company after being granted permission to work on his bridging visa.

11. The applicant said that Mr Meegan initially hired him as a Carpenter but he was now Leading Hand, with additional responsibilities for workers and staff, particularly as Mr Meegan had injured his leg and could not go onsite at present.  The applicant said that the company was growing and it had 6 or 7 jobs on hand plus 2 or 3 due to start shortly.  The applicant said that Mr Meegan took care of the administrative side of the business while the applicant looked after the work sites.  He reiterated that he was genuinely not aware before the Department refusal decision that his previous subclass 457 visa had expired in 2014.

12. The applicant said that he had been in Australia for 5 years and ultimately wanted to apply for permanent residence as his life was in Australia now. He just wanted to sort out his visa status and move on with things. In relation to his family, the applicant said that he has cousins and an aunt in Australia and that his parents were coming from Ireland the following month to visit him for his 40^th birthday. He has 6 siblings of whom 5 are in Ireland and 1 is in the United Kingdom. The applicant reiterated that if he were not able to continue working for Keady Pty Ltd, it would put a lot of pressure on Mr Meegan due to his injury. In response to the Tribunal’s query, the applicant said that even if he had go offshore for 3 months or so to lodge his subclass 457 visa there, it would still have a significant adverse effect on the Australian business, which currently employed 14 to 15 carpenters and 10 labourers.  He said that he was one of the most experienced employees and ran most jobs for the company.

13. The Tribunal raised with the applicant the fact that the Department’s file for his subclass 457 visa contains an employer reference for him from Ceide Pty Ltd, signed on behalf of the company by Martin Ferris, stated to be the director.  The applicant said that Martin Ferris did not work for Ceide Pty Ltd but for Atlantic Pty Ltd, another company.  He said that he did not know how this reference letter came to be on the Department file. The Tribunal noted that it appeared to have been provided by him (or on his behalf) to give the impression that he was a paid employee, and not the owner, of Ceide Pty Ltd.

14. The Tribunal then took evidence from Mr Trevor Meegan. He confirmed that he snapped his Achilles tendon a week ago and his estimated recovery time, during which time he would be on crutches, was 4 to 5 months. He had been told the total recovery time would be 1 to 2 years. He stated that he had just rung his current migration agent, Sabrina Coates, about the fact that the Department’s records indicated that Keady Pty Ltd’s nomination of the applicant had ceased, but that she was unaware of this.  He noted that he and the applicant had been trying to get updated information from her but that she had been avoiding their calls.  He confirmed that the applicant changed migration agents to Ms Coates in 2016 when he became aware that he did not hold a substantive visa at the time he made inquiries about applying for permanent residence.

15. Mr Meegan said that correspondence they received from the Department about the current subclass 457 visa was confusing. He provided the Tribunal with copies of email correspondence between Ms Coates and a Department officer from August 2016 in which Ms Coates queried verbal advice given to the applicant by a Department officer to the effect that there had been an administrative error and that his subclass 457 visa had been refused with someone else’s name on it. The response of the Department officer indicates that there was a reference to another applicant, unrelated to the applicant, in the last 2 paragraphs of the refusal decision.  The Tribunal observed that this did not appear to indicate that there was any actual legal error affecting the validity of the Department’s decision to refuse to grant the applicant a subclass 457 visa.

16. Mr Meegan said that it was around this time that the applicant approached him about sponsorship and was quite upfront about his visa situation. Mr Meegan said that he was OK about this as he had found it difficult to get foremen with the applicant’s level of experience and commitment. He noted that many people told him that they could read plans and organise workers but in practice, they couldn’t.  The applicant could and did so efficiently.  He further noted that it cost him money to correct substandard work and having the applicant on board as construction manager minimised this.  Mr Meegan said that the business had 8 jobs running at present and another 4 big ones about to start.  He said that he really needed the applicant to take over because he (Mr Meegan) could not visit sites due to his leg injury.  Training up someone from scratch to take over from the applicant was too difficult and time-consuming. The business had $4 million worth of work ahead of it over the next 6 months, and some of this would be lost if the applicant could not continue in his role with the company. Similarly, the business was tendering for a $3.5 million job in the next week or so and would not get this without the applicant. This job could create another 45 to 60 jobs. If the business lost work, then it would have to reduce staff, most of whom were locals, including apprentices.  Mr Meegan estimated that the business needed to generate about $250,000 per month to cover its costs, and without the applicant, it would be in danger of not meeting this and would be in serious danger of going bust.  In response to the Tribunal’s query about the fact that the applicant could depart Australia and apply for a subclass 457 visa offshore without having to meet the Schedule 3 criteria, Mr Meegan said the applicant being absent for 1 to 6 months would still have a significant adverse effect on his business.

17. Mr Meegan vouched for the applicant’s character and reiterated his belief that the applicant relied on his agents (to whom he estimated the applicant had paid around $20,000 in fees) and that his becoming unlawful was a genuine oversight.

18. At the conclusion of the hearing, the Tribunal indicated it would defer its decision until 20 March 2017 to enable the applicant and Mr Meegan to provide evidence that Keady Pty Ltd had lodged a new nomination of the applicant with the Department.

19. The Tribunal did not receive any evidence of lodgment of a new nomination of the applicant lodged by Keady Pty Ltd by 20 March 2017.  It has received no further communications from the applicant, the applicant’s agent or Mr Meegan to date.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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.

22. The Tribunal will consider each criterion in turn.

    Does the applicant satisfy the relevant Schedule 3 criteria?

23. 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.

24. 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?

25. 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?

26. 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)).

27. 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)).

28. 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)).

29. In relation to item 3004(f), its provisions differ depending on whether the applicant falls within item 3004(a) or (b).  In the case of an applicant whose circumstances come within item 3004(a), item 3004(f)(i) requires that:

    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.

30. As noted above, the delegate was not satisfied that the applicant’s claimed lack of awareness that he no longer held a substantive visa was a factor outside his control and she therefore found that he did not meet item 3004(c). She was also not satisfied that there were compelling reasons to grant the visa and therefore found that the applicant did not meet item 3004(d).  The Tribunal has also come to the conclusion that the applicant does not meet item 3004, but for different reasons.

    3004(f)

1. The Department’s records indicate that on 12 November 2014, the date that the applicant last held a substantive visa:

   ·    Ceide Pty Ltd was not an approved standard business sponsor, as its approval was granted on 2 September 2013 and ceased on 2 September 2014; and

   ·    a nomination of the applicant made by Ceide Pty Ltd was approved on 2 September 2013, and pursuant to r.2.75, this ceased on 2 September 2014, 12 months after it was approved (as per r.2.75(2)(b)).

2. It is not disputed that Keady Pty Ltd did not apply to be approved as a standard business sponsor until 14 August 2015, and the company was approved on 24 September 2015 until 24 March 2017.  Its nomination of the applicant as a Carpenter was made on 14 August 2015, was approved on 28 September 2015, and (as per r.2.75(b)), expired on 28 September 2016.

3. Accordingly, the Tribunal finds that on the last date that the applicant held a substantive visa on 12 November 2014, he was not the subject of an approved nomination by an approved standard business sponsor.

4. The Tribunal has considered whether, in these circumstances, it is satisfied that the applicant ‘would have been entitled to be granted’ a Class UC subclass 457 visa if he had applied on 12 November 2014. The Tribunal notes that the ordinary meaning of ‘entitled’ denotes ‘a legal right or just claim to do, receive, or possess something.’[1]

   [1]

5. In considering whether the applicant would have been so entitled, the Tribunal notes that there is a distinction in the wording between sub-items 3004(f)(i) and (f)(ii). Specifically, sub-item (f)(i) requires an assessment as to whether the applicant would have been entitled to be granted a visa of the class applied for when he or she last held a substantive visa, whereas (f)(ii) requires that 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. The Tribunal acknowledges the legislative interpretation presumption that, where the legislature could have used the same word but chose to use a different word, the intention was to change the meaning[2]. In seeking to correctly interpret and apply the different language in relation to the different categories of applicants, the Tribunal has had regard to Departmental policy in relation to item 3004(f).

   [2] Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75, Irvine CJ at [30] “though it is not to be conclusive, the employment of different language in the same Act may show that the legislature had in view different objects.” See also however Acts Interpretation Act 1901 (Cth), ss.15AC.

6. The Department’s Procedures Advice Manual (PAM 3) (as at 27 July 2017) states:

   MUST HAVE OTHERWISE BEEN ENTITLED TO THE VISA APPLIED FOR

   Criteria 3003(f) and 3004(f)(i)

   Criteria 3003(f) and 3004(f)(i) require the decision maker to be satisfied that the applicant would have been entitled to be granted the visa (or entry permit equivalent) had they applied for it immediately before becoming unlawful or without a substantive visa.

   This requirement supports the policy intention that applicants not gain any advantage by remaining in Australia without a substantive visa.

   It requires that the applicant’s circumstances at the time the applicant became an illegal entrant or without a substantive visa to be tested against the criteria for the visa (or entry permit equivalent) and other entitlements for stay and entry (see s65(1)(a) of the Act), at that time, and for which the applicant is currently being considered:

   •    if the person was an illegal entrant on 31 August 1994 …

   •    if the person held an entry permit that was not valid beyond 31 August 1994 …

   •    if the person ceased to hold a substantive or criminal justice visa on or after 1 September     1994 - they must be able to be granted the visa in place on the day they last held that visa or

   •     if the person entered Australia unlawfully on or after 1 September 1994 - they must be able to be granted the visa in place on the day they last unlawfully entered.

   Criterion 3004(f)(ii):

   Criterion 3004(f)(ii) requires the decision maker to be satisfied that the applicant would have been entitled to be granted a visa of the class applied for if they had applied for the visa on the day when they last entered Australia unlawfully.

   It requires that the applicant’s circumstances at the time the applicant last entered Australia unlawfully to be tested against the criteria for the visa (but not the other entitlements for stay and entry as specified in s65(1)(a) of the Act), at that time, and for which the applicant is currently being considered.

7. The Tribunal notes that, while it may be guided by policy, it is not bound to follow it.[3] In the circumstances of this application the Tribunal accepts that it is a relevant consideration and has had regard to it in the context of the applicant’s individual circumstances. The Tribunal further notes that the policy reflects a distinction in the meaning of the wording between sub-items 3004(f)(i) and (f)(ii) that seems to accord with a plain reading of the wording. It acknowledges the fact that the provisions apply to different groups of people who, it appears the legislature has determined, are to be assessed differently under the Act and Regulations.

   [3]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634 and Durzi v MIMIA [2006] FCA 1767

8. In relation to sub-item 3004(f)(i), applicants who are in Australia and who ceased to hold a substantive visa on or after September 1994 are required to establish they would have been entitled to the grant of the class of visa for which they have applied. Given the ordinary meaning of the word ‘entitled’, as discussed above, and consistently with the policy in PAM3, this necessarily entails consideration of section 65 of the Act because that section specifies when a person acquires that legal right or entitlement, that is, when a person is entitled to be granted a visa. It provides as follows:

   Section 65 Decision to grant or refuse to grant visa

   (1)      Subject to sections 84 and 86, after considering a valid application for a visa, the
   Minister:

   (a)      if satisfied that:

   (i)      the health criteria for it (if any) have been satisfied; and

   (ii)      the other criteria for it prescribed by this Act or the regulations have been satisfied; and

   (iii)      the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

   (iv)      any amount of visa application charge payable in relation to the application has been paid;

   is to grant the visa;

   (b)      if not so satisfied, is to refuse to grant the visa.

9. In the Tribunal’s view, an applicant is therefore only ‘entitled to be granted’ a visa if all the requirements in s.65 are met. That is, the reference in sub-item 3004(f)(i) to whether the applicant would have been ‘entitled to be granted’ a visa, is necessarily a reference to whether the applicant would have had, on the last day the applicant held a substantive visa, an entitlement to the grant of a visa under s.65 in respect of a visa of a particular class. That entitlement to the grant of a visa under s.65 is predicated on a ‘valid application for a visa’ having been made: s.65(1). In order to make a valid application, the applicant must apply for a visa of a particular class (s.45) and meet the requirements prescribed for a valid visa application in s.46 of the Act. This includes at subsection (3) that ‘the regulations may prescribe criteria that must be satisfied for the application for a visa of a specified class to be a valid application.’ Those regulations are found in Schedule 1 of the Regulations. For the Class UC visa, they are found in Item 1223A of Schedule 1.

10. In Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254 (Quan), Emmett J upheld a decision of the then Migration Review Tribunal, which considered the application of cl.3004(f)(i). The Tribunal (differently constituted) had found that the visa applicant would not have been entitled to a subclass 457 visa on the last day she held a substantive visa, as she could not meet the requirements for making a valid application in Item 1223A of Schedule 1, which required that the visa applicant specify the employer by whom he or she proposed to be employed, and that the application be accompanied by evidence the proposed employer was an approved sponsor or had applied for sponsorship approval. As the visa applicant would have been unable to specify a proposed employer at the relevant time, the Tribunal found that she would have been unable to satisfy these requirements. In this context, it is also noted, however, that the Tribunal went on to find that the applicant would also not have been entitled to the grant of a subclass 457 visa at the relevant time, as she also would not have been in a position to meet various applicable time of decision criteria in Part 457 of Schedule 2, which referred back to the ‘activity specified in the application’ (at [31]). The Court found that for the purposes of cl.457.211(b)(ii), the Tribunal was correct in finding that the applicant did not meet cl.3004(f)(i) as she would not have been entitled to the grant of a subclass 457 visa on the day on which she last held a substantive visa, as she did not have the sponsorship required for the grant of a subclass 457 visa (see [23] and [25]).

11. This finding in Quan arguably leaves some doubt as to whether cl.3004(f)(i) requires not just that the Schedule 1 and/or time of application requirements be satisfied at the time of the expiry of the applicant’s substantive visa but whether all the visa criteria need to be met (s.65(1)(a)(i) and (ii))  - that is, time of decision criteria), or whether something less is required.

12. As noted above, pursuant to s.65 of the Act, an applicant is not entitled to be granted a visa until he or she has satisfied all applicable criteria set down in the Regulations. It follows that an applicant is not ‘entitled to be granted a visa’ until they have met all requirements, including both time of application and time of decision criteria. The Tribunal acknowledges that the adoption of such an approach appears to create a heavy burden on applicants who need to meet item 3004 to satisfy cl.457.211. However, considering the words of the regulation and the plain meaning of the phrase ‘entitled to be granted a visa,’ this is apparently what the legislature intended. The Departmental policy makes clear that the intention of the provision is to ensure that applicants do not gain any advantage by remaining in Australia without a substantive visa, so the imposition of such a high bar to meet item 3004 is arguably not inconsistent with that policy. In addition, in a context in which sub-item 3004(f)(ii) requires that the applicant would have satisfied the criteria for the grant of the visa on the date of the relevant unlawful entry, and does not distinguish between Schedule 1 and Schedule 2 criteria, the Tribunal considers there is no justification to so confine the more broadly worded sub-item 3004(f)(i).

13. In relation to this application, and like the situation in Quan, Departmental records confirm that the applicant was not able to make a valid application under Item 1223A of Schedule 1 on 12 November 2014 as he could not specify the person who proposed to nominate an occupation in relation to him. Departmental records confirm that that the company he established, Ceide Pty Ltd, was no longer an approved sponsor at that time and its nomination of him had ceased. The nomination approval application by Keady Pty Ltd in respect of this application, however, was not made until the date of his visa application, 14 August 2015. Therefore, regardless of whether the applicant met the Schedule 1 requirements on the last day he held a substantive visa (and it appears clear that he did not), as discussed above, an entitlement to the grant of a visa would only have arisen if the Minister was satisfied that the criteria for it under the Act and Regulations were met: s.65(1)(ii). This includes an assessment of the Schedule 2 criteria for the grant of the visa. The criteria for the subclass 457 visa are set out in Part 457 of Schedule 2 to the Regulations, and include, for applicants applying on the basis of sponsorship by an Australian business, the criteria in cl.457.223(4).

14. Among other requirements, cl.457.223(4) relevantly required as follows:

    Standard business sponsorship

    (4)      The applicant meets the requirements of this subclause if:

    (a)      each of the following applies:

    (i)      a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)      the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)      the approval of the nomination has not ceased as provided for in regulation 2.75; and

15. As noted above, at the date of his substantive visa expiry on 12 November 2014, there was no nomination application lodged or approved in respect of the applicant. The Department’s records demonstrate that Keady Pty Ltd’s sponsorship application was not approved until 24 September 2015, the nomination approval application was not lodged until 14 August 2015 and was not approved until 28 September 2015, all dates after the expiry date of the applicant’s last substantive visa. The applicant therefore would not have been able to satisfy the mandatory nomination criteria in cl. 457.223(4)(a), for a subclass 457 visa, on 12 November 2014.

16. Subclass 457 is the only visa subclass available in the Temporary Business Entry (Class UC) class. No claims have been made in respect of any stream other than the standard business sponsor stream and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. The Tribunal therefore finds that the applicant would not have been entitled to the grant of a Temporary Business Entry (Class UC) visa on any basis if he had applied on the day he last held a substantive visa; that is, on 12 November 2014.

17. It follows, the applicant would not ‘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.’ The applicant therefore does not satisfy Schedule 3 criterion 3004(f).

18. As the applicant does not satisfy Schedule 3 item 3004(f), it is unnecessary to consider whether he satisfies Schedule 3 items 3004(c), (d), (e), (g) and (h). 

19. For these reasons, the applicant does not meet Schedule 3 criterion 3004 and therefore does not satisfy c.457.211(b)(ii) and therefore does not satisfy cl.457.211 as a whole.

    Current approved nomination

20. As discussed at the hearing, and put to the applicant pursuant to s.359AA of the Act, the Department’s records indicate that Keady Pty Ltd’s nomination of the applicant ceased on 28 September 2016. Although the applicant and Mr Meegan were given additional time after the hearing to provide evidence that a new nomination had been lodged with the Department, nothing was provided. There is therefore no evidence before the Tribunal that the applicant is the subject of an approved nomination by an approved standard business sponsor, as required by cl.457.223(4)(a) (although the Tribunal accepts that he was in the past). As cl.457.223(4)(a) is a time of decision criterion, it follows that the applicant does not meet this requirement at the time of the Tribunal’s decision and therefore cannot meet cl.457.223(4) as a whole. This forms a separate basis on which the Tribunal must affirm the decision under review.

21. 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

22. 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.