HOSSAIN (Migration) - [2019] AATA 4692

HOSSAIN (Migration) [2019] AATA 4692 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MD AMJAD HOSSAIN
CASE NUMBER:  1726061
DIBP REFERENCE(S):  BCC2017/507372
MEMBER:R. Skaros
DATE:31 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Statement made on 31 October 2019 at 4:17pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Public Interest Criterion 3004 – no substantive visa held at time of application – whether applicant would have been entitled to visa on last day substantive visa held – not subject of approved nomination on that day – no response to Tribunal’s s 359A letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.211(b), 457.223(4)(a), Schedule 3, criterion 3004(f)(i)
CASE
Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2018] FCCA 141
Quan v MIMAC [2013] FCCA 1254
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 9 October 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 7 February 2017. 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(b) was not met because the delegate found that the applicant did not satisfy criterion 3004 of Schedule 3 to the Regulations. The delegate was not satisfied that the applicant ceased to be the holder of a substantive visa due to factors beyond his control: cl.3004(c).
The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant was represented in relation to the review by his registered migration agent.
During the processing of the review, the Tribunal reviewed the applicant’s electronic departmental records, extracts of which were placed on the Tribunal’s file. The information contained in those records are relevant to whether the applicant satisfies cl.3004(f)(i) which relevantly requires 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 they last held a substantive or criminal justice visa.
On 30 July 2019 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be the reason or part of the reason for affirming the decision under review in writing. The information related to Departmental records which indicated that the applicant would not have been entitled to be granted the Subclass 457 visa on the day he last held a substantive visa because he was not the subject of a current approved nomination at that time. The Tribunal explained the relevance of the information and the consequences if it relied on that information.
The invitation was sent to the authorised representative at the last email provided in connection with the review and advised that, if the comments were not provided in writing by 13 August 2019 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal is satisfied that the invitation to comment was properly sent to the authorised representative at the correct email address. The email has not been returned to sender. To date the Tribunal has not received a response from the representative or the applicant. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.
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 is whether the applicant meets 3004 of Schedule 3 for the purposes of cl.457.211.
Relevantly to this matter, cl.457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl.457.211 so long as the last substantive visa they held was not a Subclass 771 (Transit) or special purpose visa and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
In the present case, the applicant did not hold a substantive visa at the time of making the visa application, and did not previously hold a Subclass 771 or special purpose visa.
The criteria in 3003 and 3005 are not relevant to the circumstances of this case.
Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.
It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant.
In addition, the Tribunal must also be satisfied that, in the case of an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, 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.[1] This is the issue on which this case turned.
[1] 3004(f)(i).
The alternative requirement in 3004(f)(ii) applies to applicants who entered Australia unlawfully on or after 1 September 1994 and is not relevant to the circumstances of this case.
In Quan v MIMAC[2] the Court considered the requirements of criterion 3004 in the context of cl.457.211(b)(ii). In that case, the Tribunal found that the applicant would not have been entitled to the grant of a Subclass 457 visa on the day on which the applicant last held a substantive visa because as of that day the applicant did not have the sponsorship required for the grant of a Subclass 457 visa. The Court held that the Tribunal was correct in finding that the applicant did not meet cl.3004(f)(i) on this basis. This reasoning was adopted in the recent case of Kaur v MIBP [2018] FCCA 141 which confirmed the relevant time for assessing whether an applicant would have been entitled to be granted the visa, including the assessment of time of decision criteria, is the date on which the applicant last held a substantive visa.
[2] [2013] FCCA 1254.
In this case, the applicant applied for the visa on 7 February 2017. The evidence before the Tribunal is that, at the time of application, the applicant was not the holder of a substantive visa. Departmental records indicate that the last substantive visa held by the applicant was a Subclass 457 visa which was in effect until 3 February 2017.
Departmental records indicate that as at 3 February 2017 the applicant was not the subject of an approved nomination. So as at 3 February 2017, being the day the applicant last held a substantive visa, the applicant would not have met the requirements in cl.457.223(4)(a) which requires that a nomination of an occupation made under s.140GB by an approved sponsor in relation to the applicant has been approved. Consequently, the Tribunal finds that the applicant would not have been entitled to be granted the Class UC (Subclass 457) visa if he had applied for the visa on the day he last held a substantive visa.
Given the above findings, the Tribunal finds that cl. 3004(f)(i) is not satisfied. As noted above, the alternative requirement in cl.3004(f)(ii) is not relevant to the circumstances of this case. Accordingly, the applicant does not satisfy cl.3004(f). As the Tribunal has found that the applicant does not meet one of the requirements in 3004, it is not necessary to consider any of the other requirements in 3004. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.457.211.
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.
R. Skaros
Senior 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.