Guruji Group Pty Ltd (Migration)

[2020] AATA 3052

Guruji Group Pty Ltd (Migration) [2020] AATA 3052 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Guruji Group Pty Ltd

VISA APPLICANTS:  Ms Mandeep Kaur Nath
Mr Sukhraj Bir Singh
Mr Mansimranbir Singh

CASE NUMBER:  1817483

DIBP REFERENCE(S):  BCC2017/1413823

MEMBER:K. Chapman

DATE:18 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.

Statement made on 18 May 2020 at 4:19pm 

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant was offshore at date of application – subject of an approved nomination – no substantive visa at lodgement – entitled to the visa on the day the applicant last held a substantive visa – factors beyond the applicant’s control – natural justice – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 140, 359
Migration Regulations 1994, Schedule 2, cls 457.221, 457.223; Schedule 3 Criterion 3004

CASES

Kaur v MIBP [2018] FCCA 141          

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 29 May 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named visa applicant, Ms Mandeep Kaur Nath, applied for the visa on 18 April 2017. She included the second and third named visa applicants in that application. The visa application was made on the basis of an associated application for nomination by Guruji Group Pty Ltd (the review applicant and also the nominator).

3. 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 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.

4. The delegate refused to grant the visas on the basis that cl.457.221A was not met because the first named applicant did not satisfy criterion 3004. Of note, it is not in dispute that the first named applicant was offshore when she applied for the Subclass 457 visa, and that she was onshore at the time of the delegate’s decision. The first named applicant was not the holder of a substantive visa at either of the aforementioned points in time.

5. On 14 June 2018, the review applicant applied to the Tribunal for review of the visa refusal decision. On 13 February 2020, the Tribunal Registry wrote to the review applicant pursuant to s.359A of the Act, inviting them to comment on or respond to the following information:

   ·Departmental records indicate that the first named visa applicant was offshore at the time they applied for the visa on 18 April 2017, and was in Australia at the time the decision was made on 29 May 2018;

   ·Departmental records indicate that the last substantive visa the first named visa applicant held was a Subclass 573 visa which was in effect until 30 September 2016; and

   ·Departmental records indicate that as at 30 September 2016, the first named visa applicant was not the subject of an approved nomination of an occupation made under s.140GB of the Act by an approved sponsor which has not ceased.

6. The invitation pursuant to s.359A of the Act advised that the above information is relevant to the review because one of the requirements for the grant of the Subclass 457 visa is that if the first named visa applicant was outside Australia at the time of the application, but inside Australia at the time of the decision, and did not hold a substantive visa at the latter time, then they must satisfy Schedule 3 criteria, which relevantly includes 3004.

7. Further, it was noted that cl.3004(f)(i) requires the Tribunal to consider whether the first named visa applicant would have been entitled to be granted the visa if they had applied for it on the day they last held a substantive visa. The invitation referenced the recent case of Kaur v MIBP [2018] FCCA 141, where the Court confirmed that the relevant time for assessing whether an applicant would have been entitled to be granted the visa, if they applied for the visa on the date they last held a substantive visa, including the assessment of the time of decision criteria, is the date on which the substantive visa was last held.

8. The s.359A invitation further outlined that having regard to the Court’s considerations of the relevant provision, if the Tribunal relies on the above information, it would find that on the day the first named visa applicant last held a substantive visa, being 30 September 2016, they would not have been entitled to the Class UC (Subclass 457) visa. This is because they would not have met the requirement in cl.457.223(4)(a) which requires that a nomination of an occupation made under s.140GB by an approved sponsor has been approved. It was noted that consequently, the Tribunal would find that the first named visa applicant would not have been entitled to be granted the visa if they applied for it on 30 September 2016, it would then go on to find that they do not meet cl.3004(f) in criterion 3004 for the purposes of cl.457.221A, and the decision under review would be affirmed.

9. Following the grant of an extension of time to respond to the s.359A invitation, the review applicant lodged a submission from their representative dated 19 March 2020, a letter of support from Ms Upasana Arora (director of the review applicant company) dated 18 March 2020, documents pertaining to the first named visa applicant’s study history, and information regarding the travel of the first named visa applicant’s child and mother in law to Australia.

10. In sum, the review applicant contends that the Department should have advised the first named visa applicant prior to her Subclass 457 visa application being decided so that she could travel offshore (this would enable her to not be subject to criterion 3004), the first named visa applicant is eligible for the Subclass 457 visa, and that her personal circumstances (including her study, employment and the arrival into Australia of her relatives) precluded her from being offshore at short notice prior to the time of the delegate’s decision. All material submitted by the review applicant, along with that contained in the Departmental file, has been duly considered by the Tribunal.

11. The review applicant, through Mr Abhay Garg (the husband of Ms Upasana Arora) appeared before the Tribunal by telephone on 15 May 2020 to give evidence and present arguments. The review applicant confirmed that they were comfortable participating in the hearing by telephone. The Tribunal also received oral evidence by telephone from the first named visa applicant, Ms Mandeep Kaur Nath. The review applicant was represented in relation to the review by their registered migration agent who attended the hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the first named visa applicant satisfies criterion 3004 for the purpose of cl.457.221A.

    Does the applicant satisfy the relevant Schedule 3 criteria?

14. Relevantly to this matter, for visa applications made on or after 14 September 2009, cl.457.221A requires that a visa applicant who is outside Australia at the time of application, but in Australia at the time of decision, must either at the latter time hold a substantive visa other than a Subclass 771 or special purpose visa, or if not the holder of a substantive visa meet specified requirements. These are that the last held a substantive visa was not a Subclass 771 or special purpose visa and the Schedule 3 criteria 3003, 3004 and 3005 are met. These criteria are extracted in the attachment to this decision.

15. As is relevant to the present matter, the first named visa applicant does not hold a substantive visa at the time of decision, and did not previously hold a Subclass 771 or special purpose visa.

    Is criterion 3003 met?

16. Criterion 3003 applies to certain visa 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 first named visa applicant is not such a person, and accordingly criterion 3003 does not apply.

    Is criterion 3004 met?

17. Criterion 3004 applies to visa 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.

18. It requires the Tribunal to be satisfied that the visa 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 visa applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by them.

19. In addition, the Tribunal must be satisfied that the visa 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 visa applicant intends to comply with any conditions of the visa; and, if the last visa (if any) held by the visa 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.

20. The review applicant contended, in oral and documentary evidence, that the first named visa applicant should satisfy the criteria for the Subclass 457 visa, is an asset to its restaurant operation, and that she did not hold a substantive visa at the time of application due to factors beyond her control. The first named visa applicant, in her submitted evidence, maintained that it was unfair for the Department to decide her Subclass 457 visa application without giving her time to depart Australia first. Ultimately, it is conceded by the review applicant that the first named visa applicant did not hold a substantive visa at the time she applied for the Subclass 457 visa and that on 30 September 2016 she was not the subject of an approved nomination.

21. It is therefore apparent that on the day the first named visa applicant last held a substantive visa, being a Subclass 573 visa in effect until 30 September 2016, she was not the subject of an approved nomination as required by cl.457.223(4)(a) for the grant of the Subclass 457 visa. Having careful regard to the Court’s guidance in the matter of Kaur v MIBP [2018] FCCA 141, the Tribunal forms the view that on 30 September 2016 the first named visa applicant would not have been entitled to be granted a Subclass 457 visa. Therefore, at the time of this decision, the first named visa applicant does not satisfy cl.3004(f)(i) in criterion 3004 for the purposes of cl.457.221A. The Tribunal so finds.

22. The Tribunal notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the applicant. The Tribunal has no power to waive the temporal limitation specified in cl.3004(f)(i). 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.

23. For completeness, the Tribunal rejects the contention of the first named visa applicant that she was denied natural justice by the Department, when they did not inform her that a decision was imminent on her Subclass 457 visa application, so she could depart Australia first in order to obtain the more beneficial circumstances of being offshore at the time of decision. It is not the role of the Department to assist visa applicants to avoid the requirements contained in the Regulations.

24. For these reasons, the first named visa applicant does not satisfy criterion 3004 for the purpose of cl.457.221A. It follows that as the first named visa applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

25. Given that the first named visa applicant has not met the requirements for the grant of a Subclass 457 visa, and is not the holder of a Subclass 457 visa, it follows that the second and third named visa applicants do not satisfy the requirements of cl.457.321. The Tribunal so finds.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.

    K. Chapman
    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.