Kailay (Migration) - [2021] AATA 1184

Kailay (Migration) [2021] AATA 1184 (16 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harpal Singh Kailay
Mrs Sarbjeet Kaur
Mr Tajvir Singh Kailay
CASE NUMBER:  1829489
DIBP REFERENCE(S):  BCC2017/1570604
MEMBER:Alison Mercer
DATE:16 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:
·PIC 3004 and 3005 of cl.457.211 of Schedule 2 to the Regulations.

Statement made on 16 February 2021 at 11:27am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– applicant failed to satisfy PIC 3004 – applicant was not the holder of a substantive visa at the time of application – previous agent withdrew the applicants 457 application without applicant’s authority – compelling reasons for the grant of the visa – factor beyond his control – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65,140GB, 359
Migration Regulations 1994, Schedule 2, cl 457.211, 457.223
CASES
Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325
Kaur v MIBP [2018] FCCA 141
Quan v Minister for Immigration and Border Protection [2013] FCA 1239
Zhuang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 742
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 27 September 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 2 May 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 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.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.211, which required (in summary) that if the application was made at a time when the applicant had ceased to hold a substantive visa, he satisfied Public Interest Criteria (PIC) 3003, 3004 and 3005 in Schedule 3 to the Regulations. The delegate found that the applicant did not satisfy PIC 3004, which required (amongst other things) that:
·the applicant was not the holder of a substantive visa because of factors beyond the applicant's control; and
·there were compelling reasons for granting the visa; and
·the applicant had complied substantially with the conditions that apply or applied to 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 any subsequent bridging visa; or the conditions that apply or applied to 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 any subsequent bridging visa; and
·either 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 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
·the applicant intended to comply with any conditions subject to which the visa was granted; and
·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.
The delegate found that the applicant was not the holder of a substantive visa at the time he made his subclass 457 visa, as his last substantive visa (also a subclass 457 visa) had expired on 7 January 2017. The delegate noted that although the applicant had made a subclass 457 visa application on 6 January 2017, he withdrew this application on 31 March 2017, then made the present subclass 457 visa on 2 May 2017. Although invited to do so, the applicant had not provided any information or submissions addressing the Schedule 3 criteria. The delegate therefore was not satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control, nor that there were compelling reasons for granting the visa.
The delegate therefore refused to grant the applicant a subclass 457 visa, noting that he had made no claims against any stream apart from the SBS stream. The delegate also refused to grant subclass 457 visas to the second and third named applicants (the applicant’s spouse and child) on the grounds that they did not meet the secondary criteria in cl.457.311 requiring them to be members of the family unit of a person who held a subclass 457 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 9 October 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr John Kotsifas, as their representative and authorised recipient for correspondence.
On 19 February 2020, the Tribunal wrote to the applicants via their agent, pursuant to s.359A of the Act, to invite them to comment on or respond to information. Specifically, the Tribunal advised that the particulars of the information were:
·Departmental records indicate that at the time the applicant applied for the visa, on 2 May 2017, he was not the holder of a substantive visa;
·Departmental records indicated that the last substantive visa held by the applicant was a subclass 457 visa which was in effect until 7 January 2017; and
·Departmental records indicate that as at 7 January 2017, the 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.
The Tribunal advised that the above information was relevant because one of the requirements for the grant of the subclass 457 visa is that if the applicant was in Australia and did not hold a substantive visa at the time of application, he had to satisfy the applicable Schedule 3 criteria, which relevantly included 3004. The Tribunal further noted that criterion 3004(f)(i) required the Tribunal to consider whether the applicant would have been entitled to be granted the visa if he had applied for it on the day he last held a substantive visa. The Tribunal advised that in the recent case of Kaur v MIBP [2018] FCCA 141, 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.
The Tribunal further indicated that, having regard to the Court’s considerations of the relevant provision, if the Tribunal relied on the above information, it would have to find that on the day the applicant last held a substantive visa, being 7 January 2017, he would not have been entitled to a subclass 457 visa because he 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. Consequently, the Tribunal would have to find that the applicant would not have been entitled to be granted the visa if he had applied for it on 7 January 2017, and it would have to go on to find that he did not meet cl. 3004(f) in criterion 3004 for the purposes of cl.457.211. The Tribunal stated that if it found this, this would be the reason (or part of the reason) to affirm the decision under review.
The Tribunal invited the applicants to give comments on or respond to the above information in writing by 4 March 2020.
On 27 February 2020, the Tribunal received a response from the applicants’ agent, in which he made the following submissions:
- they had only acted for the applicant in relation to his Tribunal review proceedings and other agents had been retained to lodge the applicants’ subclass 457 visa;
- the applicant was the holder of a subclass 457 visa as a dependant spouse, as his wife was the primary visa applicant. That visa was granted on 7 January 2013 and was valid until 7 January 2017;
- the applicants’ agent lodged a new subclass 457 visa application on 6 January 2017; however, on this occasion, the applicant in these proceedings was the primary visa applicant. The applicants were granted bridging visa As;
- the employer is an approved sponsor whose sponsorship is valid from 14 January 2016 until 14 January 2021;
- the applicant’s employer’s nomination was initially refused but was subsequently approved on 31 May 2018 (App ID: 1470600603). The approved nomination was valid until 31 May 2019;
- without the applicant’s authority or knowledge, the agent withdrew the applicants’ subclass 457 visa applications on 31 March 2017. This was apparent from the visa refusal letter of the department dated 27 September 2018;
- without the applicant’s knowledge or authority, the agent then proceeded to lodge a second 457 visa application on 2 May 2017, whilst the applicants held bridging visa As. That then resulted in the applicants being granted bridging visa Cs on 3 May 2017, which were valid until 15 December 2017. Further bridging visa Cs were granted to the applicants on 15 December 2017;
- the applicants did not receive a refund from either the agent or the Department for the first application that was withdrawn without authority;
- the application fees were paid for a second time when the second application was lodged on 2 May 2017;
- at the time the subclass 457 visas were refused by the Department on 27 September 2018, the applicant was the subject of an approved nomination that was still valid until 31 May 2019 and the nomination had been lodged by the applicant’s employer who was an approved sponsor;
- when the bridging visa C was granted to the applicant, he was not granted any work or travel rights. That led to his employment being suspended until work rights were granted. The agent was instructed that the applicant and his employer applied for work rights (his employer assisted him in making a second work rights application) but on all occasions the applications to be granted work rights were refused;
- the issue before the Tribunal is whether there were factors beyond the applicant’s control that led him to lodge a visa when he was not the holder of a substantive visa;
·it was submitted that the applicants’ original agent was Ms Mumthaj Kantara, whose registration as an agent was cancelled. The Department contacted the employer after the agent’s OMARA registration was cancelled to inform the employer that their agent was no longer registered. The agent informed the employer than she had simply forgotten to re-register as an agent and that was the reason why her registration was not valid;
·the agent then referred the employer and the applicants to another agent by the name of Mr Rajkumar Saini. The applicant was told that his application was now being handled by Mr Saini;
·the applicant confronted the new migration agent about why his subclass 457 visa application was withdrawn and why his form 956 had a forged signature of the applicant;
·the agent denied withdrawing the subclass 457 visa application and told the applicant that the Department automatically withdrew his visa application when the initial nomination was refused. It is noted that the Department’s letter confirming the withdrawal was sent to the original agent whose OMARA registration was cancelled;
·an FOI application lodged by the applicant to the Department to obtain a copy of his file reveals that an application to withdraw the 457 visa application was made and that the agent’s explanation to the applicant (namely, that it was the Department that withdrew it and not the agent), was clearly false and not correct;
·a recent email sent by the applicant to his former agent on 12 February 2020 about the withdrawal of his visa application had not been answered;
- for the above reasons, the applicant was the holder of a bridging visa C, and not a substantive visa, when the current subclass 457 visa was lodged. Consequently, it was submitted that the requirements in Schedule 3, criterion 3004, should be waived [sic]; and
- in the absence of having any work rights, the applicant had been involved in volunteer work in regional Victoria and South Australia. Specifically, he had been involved in repairing fences, clearing burnt properties and land as well as delivering food to bushfire victims and farmers and assisting in looking after affected native animals following the bushfires in January and February 2020. This was all part of his involvement with Australian Sikh Support.
The agent attached a range of supporting documents, including correspondence between the former agent and the Department, and between the applicant and his former agent(s).
On 3 June 2020, the Tribunal wrote to the applicants, via their agent, to invite them to attend a hearing on 23 June 2020.
On 17 June 2020, the Tribunal wrote again to the applicants via their agent to advise them that, due to unforeseen circumstances, the Presiding Member was not able to conduct a hearing on 23 June 2020. The Tribunal indicated that it would write to them in due course with a new hearing date.
On 29 June 2020, the Tribunal received additional submissions from the applicants’ agent addressing the Schedule 3 criteria, plus supporting documents. The agent made the following arguments in his submission:
This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 September 2018 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 2 May 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 in considering Schedule 3 criterion 3004, the delegate did not regard that the requirement to establish compelling reasons for the grant of the visa had been made out, in accordance with PIC 3004(d).
The Applicant’s Circumstances
The applicant was originally the holder of a 457 visa as a dependant spouse, as his wife was the primary visa applicant. That visa was granted on 7 January 2013 and was valid until 7 January 2017 – Attachment 1
The applicant’s agent lodged a new 457 visa on 6 January 2017 however on this occasion, the applicant in these proceedings was the primary visa applicant. The applicant was granted a BVA – Attachment 2
The employer is an approved sponsor whose sponsorship was valid from 14 January 2016 until 14 January 2021 – Attachment 3
His employer’s nomination was initially refused but was subsequently approved on 31 May 2018 (App ID: 1470600603).The approved nomination was valid until 31 May 2019 – Attachment 4
Without the applicant’s authority or knowledge, the previous agent withdrew the applicants 457 visa application on 31 March 2017. This is apparent from the visa refusal decision of the department dated 27 September 2018.
Without the applicant’s knowledge or authority, the agent then proceeded to lodge a second 457 visa application on 2 May 2017 whilst the applicant held a BVA. This resulted in the applicant being granted a BVC on 3 May 2017 which was valid until 15 December 2017. A further BVC was granted to the applicant on 15 December 2017.
The applicant did not receive a refund from either the agent or the department for the first application that was withdrawn without authority.
The application fees were paid for a second time when the second application was lodged on 2 May 2017.
At the time the 457 visa was refused by the department on 27 September 2018, the applicant was the subject of an approved nomination that was still valid until 31 May 2019. The nomination was lodged by the applicant’s employer who was and still is an approved sponsor.
When the BVC was granted to the applicant, he was not granted any work or travel rights. That led to his employment being suspended until work rights had been granted. We are instructed that the applicant and his employer applied for work rights (his employer assisted him in making a second work rights application) but on all occasions the applications to be granted work rights were refused.
The applicant was finally granted work rights on 27 February 2020.
On 19 February 2020 the Tribunal sent a letter to the applicant inviting him to comment on certain matters.
The Tribunal’s letter referred to the case of Kaur & Anor v Minister for Immigration & Anor [2018] FCCA 141 (24 January 2018). The Tribunals letter stated the following:
Relevantly, criterion 3004(f)(i) requires the Tribunal to consider whether you would have been entitled to be granted the visa if you had applied for it on the day you last held a substantive visa. In the recent case of Kaur v MIBP [2018] FCCA 141, 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.
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 you last held a substantive visa, being 7 January 2017, you would not have been entitled to the Class UC (Subclass 457) visa. This is because you 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. Consequently, the Tribunal would find that you would not have been entitled to be granted the visa if you applied for it on 7 January 2017. It would then go on to find that you do not meet cl. 3004(f) in criterion 3004 for the purposes of cl.457.211 and the decision under review would be affirmed.
The issue in this case is whether the applicant satisfies the criteria to be met at time of application in cl.457.211, which requires that if an applicant does not hold a substantive visa at the time of application, they relevantly satisfy schedule 3 criteria 3003, 3004 and 3005.
More precisely, the issue in the present case, is the proper interpretation and construction of cl.3004(f) in criterion 3004 for the purposes of cl 457.211 and whether it requires an applicant to show that a nomination of an occupation under s.140GB by an approved sponsor had been approved on the last day the applicant (Mr Kailay) held a substantive visa or whether cl.3004(f) simply requires consideration of an hypothetical, namely what would have occurred if the present visa applicant (applying after the substantive visa had expired) had actually made the application just before the visa expiry.
Relevant legislation
Schedule 3 cl.3004 provides as follows:-
“ 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.”
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 one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005.
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 (although he did hold a substantive visa when his previous agent lodged his initial 457 visa application on 6 January 2017 before it was later withdrawn without the applicants authority or knowledge).
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 can be 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, 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 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; that the applicant intends to comply with any conditions of the visa; and that, 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 further entry permit, while the holder remained in Australia.
Leaving aside the actions of the applicants previous agents in withdrawing the original 457 visa application without the applicants knowledge or consent, the material before the Tribunal establishes that the current visa application was made on 2 May 2017, in circumstances where the last substantive visa held by the applicant, a Temporary Business Entry (class UC) work (skilled) subclass 457 visa, had expired on 7 January 2017.
Whether the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control
The evidence before the Tribunal indicates that the applicant had lodged a 457 visa on 6 January 2017 before his visa was due to expire and that he was granted a bridging visa A (BVA) following the lodgement. Without his knowledge and without any instructions, the applicant’s previous agent withdrew this application and then lodged a second 457 visa application on 2 May 2017.
The applicant’s original agent was Ms Mumthaj Kantara whose registration as an agent was cancelled on 16 January 2017 by OMARA. The department contacted the employer after her OMARA registration was cancelled to inform them that their agent was no longer registered. The agent informed the employer than she had simply forgotten to re-register as an agent and that was the reason why her registration was not valid – Attachment 5
The agent then referred the employer and the applicant to another agent by the name of Mr Rajkumar Saini. The applicant was told that his application was now being handled by Mr Saini – Attachment 6
Concerned about what was happening with his application, the applicant lodged an FOI request to the Department obtain a copy of his file. He discovered that his original 457 application was withdrawn and that a Form 956 was lodged by Mr Saini together with the second 457 visa application which had forged the applicant’s signature. The applicant confronted Mr Saini a number of times and on 7 January 2020 emailed him asking him for an explanation of what had occurred– Attachment 7
On 9 January 2020 in a text message sent to the applicant, the agent Mr Saini has denied withdrawing the 457-visa application and has told the applicant that immigration automatically withdrew his visa application when the initial nomination was refused- Attachment 8
It is noted that the departments letter confirming the withdrawal dated 31 March 2017, was sent to the original agent whose OMARA registration was cancelled on 16 January 2017, some two months earlier. That letter acknowledges that a request was made by his original agent (whose registration was cancelled) to withdraw the 457 visa application that was originally lodged on 6 January 2017.– Attachment 9
Consequently, the agent’s explanation given to the applicant, namely, that it was auto withdrawn by the department and not the agent, is clearly incorrect.
A Form 956 was sent by Mr Saini to the Department on 7 March 2017 advising that he was now the applicants appointed agent and a form 956 was enclosed bearing what purported to be the applicant’s signature – Attachment 10
Having regard to all the circumstances of this matter, the Tribunal must determine whether the applicant was not the holder of a substantive visa because of factors “beyond the control” of the applicant.
The Tribunal is referred to the remarks of Smith FM in Su & ors v Minister for Immigration and Citizenship. After indicating that the test is in that sense subjective, Smith FM held:
“... what is ‘beyond control’ should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.”
Having had regard to the evidence before the Tribunal about the sequence of events that led to the applicant not being the holder of a substantive visa when his 457 visa was lodged, the Tribunal should be satisfied that the circumstances of this case involve the applicant not holding a substantive visa as a result of the conduct of his former migration agents and the withdrawal of the original 457 visa without his knowledge or consent. One may assume that the 457 visa was withdrawn by the original agent because of factors relating to the cancellation of their registration as a migration agent which occurred only 10 days after the first 457 visa was lodged.
The applicant did not withdraw his 457 visa application personally and he did not instruct his agent to do so. Further, the applicants evidence is that he did not appoint Mr Saini to be his agent after his first agent’s MARA registration was cancelled and he did not sign a Form 956 appointing him as his agent with respect to the second 457 visa application.
Accordingly, on the basis of applicable case law and consistently with departmental policy, the Tribunal should be satisfied that the applicant was not the holder of a substantive visa at the time of application because of factors beyond his control.
The applicant accordingly meets PIC 3004(c).
Are there compelling reasons for granting the visa?
In considering compelling reasons, the Tribunal should take into account the very circumstances which led the applicant to be in his present situation of not being the holder of a substantive visa when the application was lodged, which were beyond the applicant’s control.
The Tribunal should note, that when the second 457 visa was lodged, the applicant employer was an approved sponsor (which is still valid until 14 January 2021) and that his employers nomination nominating him in the occupation of “Manufacturer” -ANZCO 133411, was approved on 31 May 2018.
Taking the circumstances into account on a cumulative basis, the Tribunal should find that there are compelling reasons for the grant of the visa to the applicant.
Whether 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.
Prior to lodging his own 457 visa applications, the applicant held a 457 visa as a secondary applicant. His wife was the primary visa holder.
The Tribunal should find that there is no evidence before the Tribunal to suggest that the applicant had not complied with the conditions of his previously held substantive visa or bridging visas.
Whether the applicant would have been able to satisfy the criteria or be granted the visa on the day he last held a substantive visa;
For a proper consideration of this issue, it is necessary to reproduce the contentions of the applicant in Kaur’s case despite the fact that the court in this case dismissed the applicants appeal.
In Kaur’s case, the Applicants submissions as to the statutory context of cl.3004(f), were as follows:
First, cl 3004 is necessarily concerned with a class of visa applicants who have failed to lodge their applications on time, including those who may have lodged months or years after the expiry of their substantive visas. It defies common sense that a visa applicant of that class, who has delayed in lodging, for example, a 457 visa application beyond the expiry of his or her substantive visa, would nevertheless have thought to organise, and then secured, his or her employer nomination approval before the expiry of the substantive visa.
Secondly, the timing of any approval of the employer nomination is (subject to a mandamus writ) entirely in the hands of the Minister. In this case, there was evidence that the process of nomination approval took more than 10 weeks once the application had been received by the Department. It would produce anomalous results if cl 3004(f) were interpreted to require that an applicant secure employer nomination by an artificial deadline, in circumstances where the timing of those approvals lay solely within the Minister's control. In the instant case, the MRT sensibly adjourned the review to await the Minister's reapproval of the nomination. The Tribunal's interpretation of cl 3004(f) allowed for no such flexibility and fairness to the First Applicant. The Tribunal's approach would also expect that an applicant (who, as discussed above, is necessarily in a class of tardy applicants) would organise with his prospective employer an application for approved nomination potentially several months before the expiry of his or her last substantive visa.
Thirdly, cl 3004(f) is one of a number of cumulative requirements imposed by cl 3004. If an applicant can satisfy cl 3004(f), the Tribunal is still permitted (and indeed required) to assess the applicant against the more substantive matters in cl 3004, including whether the applicant was not the holder of a substantive visa because of factors beyond his or her control, whether there were compelling reasons to grant the visa, and whether the applicant had substantially complied with previous visa conditions. In that context, cl 3004(f) should not be construed in such a way that would make it practically impossible for an applicant to satisfy, thereby guillotining the Tribunal's consideration of the more substantive and merit-based criteria in cl 3004. Such an interpretation would go against the object of cl 3004, which is plainly designed to permit the Tribunal to consider whether an indulgence should be granted to an applicant on principled grounds, notwithstanding the late lodgement of the application.
Fourthly, the approach adopted by the Tribunal, which required all the time of decision criteria to have been satisfied at an arbitrary date some years before (when the last substantive visa expired), produces difficulties and anomalies in applying various other time of decision criteria for the 457 visa. For example:
(a)      Clause 457.223(4)(d) requires as a time of decision criterion that the Minister be satisfied that the applicant's intention to perform the occupation is genuine. An applicant who has lodged the visa application many years after the expiry of his or her last substantive visa may have had no intention at that point of performing the occupation for which he or she now applies;
(b)      Clause 457.223B requires as a time of decision criterion that the Minister be satisfied that the applicant has adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia. An applicant who has lodged the visa application many years after the expiry of his or her last substantive visa may have had no “intended stay” at that point.
Fifthly, on the First Applicant's construction of cl 3004, cl 3004(f) has work to do. In the case of 457 visas, when one hypothesises that the application had been made on the date that an applicant last held a substantive visa, then an applicant will notionally satisfy the sole time of application criterion in cl 457.211. However, the decision-maker then must still go on to consider the remaining cumulative criteria in cl 3004 and all of the additional time of decision criteria for the visa. Moreover, cl 3004 is relevant to many other visa subclasses, including subclass 403 (Temporary Work) (International Relations) visa, subclass 405 (Investor Retirement) visa, subclass 410 (Retirement) visa, subclass 461 (New Zealand Citizen Family Relationship) (Temporary) visa, subclass 600 (Visitor) visa, subclass 602 (Medical Treatment) visa, subclass 676 (Tourist) visa, subclass 820 (Partner) visa, and subclass 858 (Distinguished Talent) visa. For some of those visas, there are multiple time (sic) of application criteria that must be satisfied (see e.g. subclass 461 visa, subclass 676 visa, subclass 820, and subclass 858 visa). In those cases, hypothesising that an applicant had lodged his or her application on the date on which the last substantive visa was held does not mean that if the applicant can satisfy all the other cumulative criteria in cl 3004 he or she will have also necessarily satisfied all the time of application criteria for the visa.”
Whilst the appellants submissions were not accepted by the court in Kaur’s case, the propositions that they espouse, have now been endorsed by the Federal Court in a recent decision - Zhuang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 742 (3 June 2020).
Relevant cases
In Quan v Minister for Immigration and Border Protection [2013] FCA 1239 in the Federal Court of Australia, the court therein considered that the Applicant was not entitled to the grant of a subclass 457 visa because cl.3004(f) could not be satisfied on the basis that the Applicant did not have an approved sponsor on 4 October 2008, being the date on which the Applicant last held a substantive visa.
In Kaur’s case, the Court found no reason to doubt the correctness of the interpretation of cl. 3004(f)(i) of Schedule 3 of the Regulations adopted in the earlier decision of the Court in Quan and in the decision of the Federal Court of Australia on the extension of time appeal application, and determined that it should not depart from that interpretation.
The Court in Kaur’s case held that the words “would have been entitled to be granted” in cl.3004(f)(i) express a conditional past tense. That is, they require an assessment of whether, if the Applicant had applied for the visa on 7 January 2017 (the day the applicant last held a substantive visa) , the Applicant would have been “at a point in time in the past” entitled to be granted a subclass 457 visa. The court held that the words “would have been” cannot be read as requiring the Tribunal to assess whether the Applicant would be, at the time of decision, entitled to be granted the visa.
Post the decision in Quan’s case, there have been a number of Tribunal decisions which have taken a wider view of cl.3004(f)(i). In 1401037 [2015] MRTA 465 at [36]-[37] (Member Don Lucas) made the following observations:
The Tribunal accepts on the evidence that it had already been confirmed that the applicant’s employer, an approved standard business sponsor, proposed to nominate the applicant for a position in its business prior to the expiry of the applicant’s last substantive visa. … [T]he Tribunal considers that the applicant would have been entitled to the grant of the visa on the last day of his substantive visa, on the basis of the proposed nomination confirmed by an already approved standard business sponsor, which nomination was shortly thereafter approved by the Department.
On this basis, in finding the applicant would have been entitled the grant of the visa when his last substantive visa expired, the Tribunal finds that the applicant had at the relevant time the requisite level of support and sponsorship from the business sponsor as contemplated by the Federal Court in Quan v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1254 [N.B. incorrect citation to Federal Circuit Court case].
If one cares to examine the numerous decisions of the MRT (as it was then called) when dealing with matters involving 457 visa applications and Schedule 3 requirements, it was the general practice of the Tribunal to deal with whether there were factors beyond the applicants control and whether there were compelling reasons for the grant of the visa and then to simply state, “There is no evidence before the Tribunal to indicate that the applicant does not satisfy the remaining requirements in criterion 3004”.
Consequently, the Tribunal had traditionally accepted the principle that in order to satisfy schedule 3004, there was no need to show that there was an approved sponsorship and nomination in place on the last day an applicant held a substantive visa. In other words, the question posed by cl.3004(f)(i) is a hypothetical one, namely, if an applicant were to have lodged a hypothetical sponsorship and nomination application on the day before the applicant became unlawful, would the applicant have been entitled to the grant of the visa had the threshold sponsorship and nomination application had been approved in due course. That is why the Tribunal routinely concluded that “there was no evidence before the tribunal to indicate that an applicant would not satisfy the remaining requirements of criterion 3004” and in particular 3004(f)(i) because the question was always posed in a hypothetical way.
See:
•         0800180 [2009] MRTA 135 (31 January 2009) at para 40
•         0900110 [2010] MRTA 1089 (4 May 2010) at para 37
Kumar v Minister for Immigration & Anor [2020] FCCA 1198 (15 May 2020) is the most recent decision of the Federal Circuit Court on this issue. In this case, the court stated the following:
The Tribunal gave genuine and realistic consideration to this evidence but found that it could not change the decision it was required to make “in accordance with the legislative provisions”. Those provisions required the Tribunal to limit its inquiry to the point in time at which Mr Kumar last held a substantive visa, and contrary to his application, did not afford him an unlimited window of time in which to take steps to establish that he met the essential criteria for the grant of the visa. (para 20)
The approach taken by the Tribunal accords with appellate authority. In Quan v Minister for Immigration Farrell J found at [33], on the basis that the appellant did not have an approved sponsor on the last day on which he had held a substantive visa, that: “...no matter how compelling the reasons may be to grant the applicant a 457 visa the applicant is not entitled to the grant of a 457 visa because cl 3004(f) cannot be satisfied” (para 21)
The decision and reasoning of the court in Kaur’s case and in Kumars’ case has now been overruled by the Federal Court in Zhuang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 742 (3 June 2020). This decision is now the leading authority on the interpretation of criterion 3004(f)(i).
In this case, the Federal Court was dealing with a ground of appeal which challenged the decision of the primary judge who found that any relief would be futile because the applicant could not demonstrate compliance with what the court described as Criterion B.
That criteria (criteria B) was:
(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.
In addressing the relevant criteria, the court stated the following:
The relevant visa criteria
One of the criteria to be met by an applicant for a temporary business visa was criterion 3004, specified in Schedule 3 of the Migration Regulations 1994 (Cth). Amongst other things, it required the Minister to be satisfied that Mr Zhuang was 'not the holder of a substantive visa because of factors beyond [his] control' and that there were 'compelling reasons for granting the visa' (Criterion A). It also required the Minister to be satisfied that Mr Zhuang would have been entitled to be granted the temporary business visa had he applied on the last day he held a substantive visa (being a day in 2009 when his student visa expired) (Criterion B).
The Tribunal did not challenge or question the account given by Mr Zhuang or put to him any matters which might be a reason why his account may be doubted. The Tribunal did not ask any questions about whether Mr Zhuang could have secured a sponsor prior to the expiry of his student visa. Plainly he had not secured a sponsor in 2009 because the nature of his application was such that he was seeking a visa on the basis that he had not made the application for a temporary business visa before his student visa expired.
However, Criterion B did not require a visa applicant to have actually taken the particular steps required to obtain a visa. Rather, Criterion B required 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 ... visa'. Therefore, the criterion was itself framed in terms where it was to apply where there had been no application. It required consideration of a hypothetical, namely what would have occurred if the present visa applicant (applying after the substantive visa had expired) had actually made the application just before the visa expiry.
Therefore, inherent in the hypothetical is the making of an application. A party making such a hypothetical application would have been aware of the need for an approved sponsor and would have obtained one if they were able to do so. Therefore, on its proper construction, the provision required a consideration as to whether, if an application had been made on the relevant date in 2009, it could have been supported by an approved sponsor. That was a factual question which required a consideration of the position of Mr Zhuang many years earlier. It was an inquiry which was never part of the issues considered by the delegate or the Tribunal.
The primary judge held, Mr Zhuang had failed to demonstrate that he could have met Criterion B as he had not shown that he had an approved sponsor for the purposes of the temporary business visa application as at the time when his student visa expired:
His Honour Colvin J went on to state:
I do not accept the submission for the Minister that in order to satisfy Criterion B, applicants such as Mr Zhuang have to demonstrate that, in fact, prior to the relevant date (in this case a date in 2009) they had in place an approved sponsor. Securing an approved sponsor is part of what would be done in order to bring an application. It is not something that would have been done if an application had not been made, being the premise upon which Criterion B operates. It would be self-defeating if a person had to have taken a step that would only be taken if an application was in fact being made in order to meet a criterion that, on its face, applies where such an application has not been made.
It appears that Colvin J mistakenly refers to a sponsorship rather than a nomination in his reasons but nonetheless, his honours reasoning stands for the proposition that neither an approved sponsorship nor nomination needs to be in place on the last day the applicant held a substantive visa.
The following conclusions can be drawn from the courts judgement and reasoning:
1.Criterion 3004(f)(i) poses a hypothetical question and there is no requirement that an applicant show that an approved sponsorship and nomination were in place on the last day they held a substantive visa.
2.The expression ‘entitled to’ does not import a requirement that there be a sponsorship or nomination on foot as of that date. Had parliament so intended, then it would have specifically stated that the approval of a sponsorship and nomination were requirements on the last day the applicant held a substantive visa and words would have been used to make this clear and beyond doubt.
3.To require an applicant to show that there was an approved sponsorship and nomination in place before their visa expired would be to make cl.3004(f)(i) serve no practical purpose. It would seldom if ever be the case that an applicant would have thought of securing an approved sponsorship and nomination before their visa expired and if they did, it would beg the question why having secured these approvals, they would not also lodge their new visa application before their own existing visa expired.
In the present case, the Tribunal should find the following:
1.That the decision in Zhuang’s case is binding appellant authority on the correct interpretation of Criterion 3004(f)(i).
2.There is no evidence before the Tribunal to indicate that the applicant does not satisfy the remaining requirements in criterion 3004, particularly 3004(f)(i).
Conclusion
The Tribunal should remit the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the first named applicant meets the following criterion for a subclass 457 visa:
·Schedule 3 criteria 3004 for the purposes of cl.457.211 of Schedule 2 to the Regulations.

On 22 October 2020, the Tribunal wrote to the applicants via their agent and advised that it had scheduled a hearing to be conducted by teleconference on 10 November 2020.
On 6 November 2020, the applicants’ agent returned the hearing response form, requesting that if possible, the hearing be conducted by videoconference.
On 9 November 2020, the Tribunal advised that the hearing would be conducted by videoconference.
On the same date, the Tribunal received the following additional submissions from the applicants’ agent:
Criterion 3004(f)(i) and The Federal Court decision in Zhuang v Minister for Home Affairs [2019] FCCA 3699
1. In this case, a question arises as to the proper construction of cl 3004(f) as it appears in Schedule 3 to the Migration Regulations 1994 (Cth).
2.       Clause 3004 relevantly provides:
If the applicant:
(a)      ceased to hold a substantive or criminal justice visa on or
after 1 September 1994; …
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
(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; …
3.       Satisfaction of clause 3004 (including (f)) is a time of application criterion for the relevant visa class applied for here.
4.       The Tribunal is obliged to follow the law as it has been declared by the Australian courts: see Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325 at [3]-[7] per Allsop J.
5.       Clause 3004(f) should be interpreted to mean simply that the Tribunal assume, for the purposes of the application before it, that the visa applicant “had applied” on the day they last held their substantive visa, and then to assess their satisfaction of the visa criteria on that basis. Clause 3004(f) did not have the effect of requiring that time of decision criteria (satisfaction of some, e.g. nomination approvals, being in the gift of other persons) be satisfied at the time that they last held a substantive visa.
6.       Clause 3004 was necessarily concerned with a class of tardy visa applicants and it could not have been the intention, therefore, to require those who had not lodged their application to have had nonetheless organised, and had approved, employer nominations for some as-yet unmade application.
7.       In Zhaung, Colvin J was concerned with a visa applicant whose substantive (student) visa had expired in 2009 and who had applied for a temporary business visa in 2016. The Tribunal acted procedurally unfairly in dealing with that later application and the Federal Court so found (see [33]). Essentially, the Tribunal had determined the review application adversely on a basis that had not been put in issue by the delegate and for which no sufficient notice had been given by the Tribunal.
8.       In the Federal Circuit Court proceedings for judicial review of that Tribunal decision, the Court rejected the applicant’s grounds of review and additionally found that, in any event, relief should be refused on discretionary grounds, as the applicant had failed to demonstrate that he had an approved sponsor for the purposes of the temporary business visa application as at the time when his substantive visa expired: see Zhuang v Minister for Home Affairs [2019] FCCA 3699 at [50], as cited in the Federal Court’s reasons at [27]. While the Circuit Court did not cite Kaur, it fully discussed the issue of the asserted need for the applicant to have held an employer nomination at the time of the expiry of his last substantive visa (see [37]-[50] of the Circuit Court’s reasons). It is well established that, even if jurisdictional error is made out, the reviewing court can refuse relief if there would be no utility in granting it because, for example, there is no prospect of the visa applicant being eligible for the visa should the matter be remitted to the Tribunal (although here, the Circuit Court wrongly reversed the onus on this question: see [49] of its reasons).
9.       Thus, the Federal Court on appeal, having upheld a ground of appeal concerning procedural fairness had to revisit the question of the asserted futility of relief. It did so in comprehensive reasons at [39]-[56] and more particularly from [50] onwards. Justice Colvin identified that the critical issue was concerned with whether the applicant had an approved business sponsor (sic; read, nomination), which he refers to in his reasons as having been required by “Criterion B”, namely cl 3004(f) (see [5]).
Justice Colvin then critically states as follows, in passages which are set out as some length and to which I have added emphasis by way of underline ([52]-[55]):
However, Criterion B did not require a visa applicant to have actually taken the particular steps required to obtain a visa. Rather, Criterion B required 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 ... visa'. Therefore, the criterion was itself framed in terms where it was to apply where there had been no application. It required consideration of an hypothetical, namely what would have occurred if the present visa applicant (applying after the substantive visa had expired) had actually made the application just before the visa expiry. In this case, on a date in 2009.
Therefore, inherent in the hypothetical is the making of an application. A party making such an hypothetical application would have been aware of the need for an approved sponsor and would have obtained one if they were able to do so. Therefore, on its proper construction, the provision required a consideration as to whether, if an application had been made on the relevant date in 2009, it could have been supported by an approved sponsor. That was a factual question which required a consideration of the position of Mr Zhuang many years earlier. It was an inquiry which was never part of the issues considered by the delegate or the Tribunal.
It may be that Mr Zhuang is able to demonstrate that he could have obtained a sponsor if he had made his application on the date in 2009. That is a matter that is entrusted to the Tribunal for determination. It was not for the primary judge, or this Court on review, to form a view as to whether that was the case.
I do not accept the submission for the Minister that in order to satisfy Criterion B, applicants such as Mr Zhuang have to demonstrate that, in fact, prior to the relevant date (in this case a date in 2009) they had in place an approved sponsor. Securing an approved sponsor is part of what would be done in order to bring an application. It is not something that would have been done if an application had not been made, being the premise upon which Criterion B operates. It would be self-defeating if a person had to have taken a step that would only be taken if an application was in fact being made in order to meet a criterion that, on its face, applies where such an application has not been made.
11.      It is submitted these passages in Zhaung are directly to the contrary of the Circuit Court’s decision in Kaur and other cases of that Court which have referred to it (such as Kumar). These passages instead stand for the proposition that a nomination does not need to be approved at the time that the last substantive visa expired, but that it is a much more fact intensive and evaluative inquiry by the Tribunal concerning whether a visa applicant could have secured a nomination had they applied for one at the time.
12.      This reasoning in Zhaung is part of the ratio decidendi of that case. That is because, without this essential reasoning, the Circuit Court’s finding that there was no utility in remitter would have stood, and the appeal would therefore not have been allowed. Therefore, this reasoning was critical to the orders made by the Federal Court, in allowing the appeal, and cannot therefore be characterised as obiter dicta.
13.      It is submitted that the Federal Circuit Court decision in Kaur has been impliedly overruled by Zhaung. It is not to the point that Kaur (or Kumar) may not have been brought to Colvin J’s attention – those authorities were not binding on him in any event and his decision cannot be considered “per incuriam” (i.e. effectively of no precedential force) for not having cited them.
14. This is not a case where there are conflicting Federal Court decisions such that the Tribunal is entitled to “choose” which one it considers correctly states the law. That is because the other Federal Court decision which deals with this topic, Quan v Minister for Immigration and Border Protection [2013] FCA 1239, is a decision to refuse an extension of time to appeal. Being the refusal of an interlocutory application only, it does not have the status of precedent: see X v Director of Public Prosecutions [1995] 2 VR 622 at 626, as accepted in Kaur at [28]. Therefore, it is submitted that the Federal Court’s decision in Zhaung holds the field and is the authority on what cl 3004(f) requires of visa applicants. It is more than just helpful guidance – it is authoritative and in our respectful submissions, the Tribunal must follow it.
15.      There is nothing before the Tribunal to indicate that the applicant would not meet the criteria for the grant of the sub class 457 visa had he applied on 7 January 2017 when his last substantive visa ceased.
Criterion 3004(c)
16.      Criterion 3004(c) requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his control.
The applicant lodged an FOI request on 31 July 2029 in order to obtain all relevant documents relating to his visa application and on 29 August 2019 the department wrote to the applicant and provided relevant documents.
17.      The departments FOI letter dated 29 August 2019 stated the following:
…
18.      We make the following points in relation to this departmental response (which we have only just become aware of):
•         The initial 457 visa application was lodged on 6 January 2017.
•         The applicant did not provide any instructions to his agent to agree to the visa application being withdrawn should the related nomination be refused. To do so would leave the applicant without a visa. He did not authorise his agent to answer “YES” to the relevant question.
•         The Agents registration as a migration agent was cancelled on 16 January 2017 (10 days after the initial 457 visa was lodged).The cancellation notice issued by OMARA cited many reasons for the cancellation which included:
o        Failing to act in the clients’ interests
o        Failing to act in accordance with client’s instructions
o        Failing to inform clients of relevant facts
o        Making misleading and inaccurate statements
o        Failing to demonstrate a sound knowledge of migration legislation
o        Was not a person of integrity
o        Was not a fit and proper person to hold registration or to give migration advice and assistance
•         The applicant was never informed that the agent had answered “yes” to the relevant question and that they had agreed to the visa application being withdrawn.
•         Had the agent answered “NO” to the relevant question, it was open to the applicant’s employer to lodge a new nomination and have it joined the already lodged 457 visa application.
The agent was negligent in answering the question the way they did, but more importantly, the applicant gave no instructions to his agent agreeing to his 457 visa being withdrawn if the nomination was refused. The agent acted without authority and the applicant was unaware of the agents conduct.
•         The agent continued to act for the employer and the applicant despite the cancellation of her migration agent’s registration.
•         The agent failed to disclose to the employer and the applicant that the initial visa application had been refused and that she had proceeded to lodge a new nomination and new visa application without informing the employer and the applicant. This is evident from the email sent by the employer to the agent on 27 September 2019 asking the agent why the applicants visa was refused given that he was the holder of a 457 visa when the application was lodged on 6 January 2017 – Attachment A
•         It is also clear that the agent failed to disclose to the employer and to the applicant that her MARA registration was cancelled despite telling them that they should not be concerned and that she had just failed to re-register in time.
•         Despite the cancellation of her registration as an agent on 16 January 2017, email exchanges show that the agent was continuing to act in this matter in September 2018 along time after her registration was cancelled.
Compelling reasons for the grant of the visa
19.      The 457 nomination was approved on 31 May 2018. The applicant has previously worked for the nominating employer between September 2013 and May 2017 when his work rights ceased. Had the applicant continued to have work rights, it is reasonable to assume he would have continued to work for the same employer. The applicant was only able to secure work rights in February 2020. Covid –19 business restrictions meant that the applicant was not able to resume his previous employment but the employer has provided the tribunal with a letter dated 6 November 2020 confirming that the employer will re employ the applicant in his nominated occupation once his visa is finally approved – Attachment B
In considering compelling reasons, it is also relevant to consider the circumstances which led to the applicant to be in his current predicament of not being the holder of a substantive visa when his application was lodged, and which were beyond his control. Taking these circumstances into account on a cumulative basis, the Tribunal should find that there are compelling reasons for the grant of the visa to the applicant.
Compliance with conditions of previous substantive or bridging visas
20.      There is no evidence before the Tribunal to suggest that the applicant has no complied with the conditions of his previous substantive or bridging visas.
21.      Having regard to the above submissions and those previously filed with the Tribunal, it is submitted the following conclusions should be drawn in this matter:
That the applicant meets criterion 3004 of Schedule 3 for the purposes of cl.457.211 of Schedule 2 of the regulations.
…
Also provided were the following documents:
·email from Joe Grech of Titanium Caravans Pty Ltd (the nominating employer) dated 27 September 2018 to the applicant’s former agent, Ms Kantara, questioning why the Department appears to have allocated a new file number for the applicants’ subclass 457 visa application and whether this means they are treating it as a new visa application;
·letter dated 6 November 2020 from Mr Grech confirming that his company employed the applicant from September 2013 to May 2017 but that he did not have work rights after that date. Mr Grech states that he only recently became aware that the applicant had regained work rights in February 2020 and that his company would be happy to re-employ the applicant; and
·statement from the applicant.
The applicant’s statement is as follows:
1.I came to Australia 22 January 2013 on a 457 visa. My wife was the primary visa holder and I was the secondary visa holder. My wife’s occupation was that of mixed crop farmer and she was employed by her employer in NSW. After a short while, she moved to Victoria to work for a different employer (farmer).
2.The 457 visa was granted on 7 January 2013 and was valid until 7 January 2017.
3.I lodged a new 457 visa on 6 January 2017 however on this occasion, I was the primary visa applicant. I was granted a BVA.
4.My employer was Titanium Caravans in Epping. I recall starting to work full time as a manufacturer and I continued working up until May 2017.
5.My employer became an approved sponsor on 14 January 2016 and it is valid until 14 January 2021.
6.       The employer 457 nomination was approved on 31 May 2018.
7.In January 2017 I received a letter from immigration informing me that my Australian agent was no longer registered. This notice was sent to my agent in India and he sent it to me.
8.I rang my agent Mrs Mumthaj Begum Kantara about this and she just told me that she had forgotten to renew her MARA registration and that I should ignore the letter.
9.In September/October 2018, the agent Mr Saini sent me and my employer an SMS message that simply said, “please find attached AAT forms for you and Mr Harpal to lodge within 21 days”.
10.      I then discovered that my 457 visa had been refused on 27 September 2018.
11.I recall my employer emailed my agent asking why the visa was refused on the basis that I did not have a substantive visa when the application was made given that I did have a visa on 6 January 2017 when the application was lodged.
12.I recall that after this, I was receiving emails from my agent but her emails were coming from a different email address which I now know to be Rajkumar Saini.
13.I now believe that my old agent had her registration cancelled and that she had entered into an agreement with Mr Saini for him to only act as the agent on the record and that she was using his email address to correspond with me and other clients. She may have been working from Mr Saini’s office.
14.I lodged an FOI request to obtain a copy of my file because I was concerned that I was receiving emails from a different address. I lodged the FOI application In July 2019.
15.I received my FOI documents on 29 August 2019. I then discovered the following:
•My 457 visa application that was lodged on 6 January 2017 had been withdrawn without my knowledge or approval on 31 March 2017.
•That a 956 form was lodged with the department without my consent or knowledge appointing Mr Saini as my new agent in my application. I never appointed him as my agent.
That a new 457 visa application was lodged on 2 May 2017 without my knowledge or approval. This then resulted in my BVA which I was granted with my initial application being converted to a BVC.
16.I then contacted my agent Mrs Kantara who told me to contact Mr Saini as he was handling my case.
17.I had no idea what was going on and I contacted Mr Saini and we then started to exchange SMS messages and he maintained that it was the department that withdrew my application and not him or my previous agent Mrs Kantara.
18.      I now know this to be false.
19.I asked him to give me my entire file back and he told me to get it from Mrs Kantara. I recall I went to her house to get my file and it was clear that she was still working on my file and not Mr Saini. She told me that she and Mr Saini were working together.
20.Every time I would message Mr Saini I would get a reply from Mrs Kantara instead.
21.I have never appointed my Saini as my agent and I do not have any cost agreements with him. I have never paid him any money to do any work for me.
22.I had made 2 applications for work rights and both times my application was refused.
23.My third application was made by my current agent John Kotsifas from JK Legal and it was approved in February 2020.
24.I have been the victim of a massive fraud and my visa application lodged on 6 January 2017 when I held a substantive visa was withdrawn without my consent or knowledge.
25.It is for this reason I have found myself holding a BVC and it was for this reason why the department refused my 457 visa on 27 September 2018 – failure to meet Schedule 3 requirements (I was not the holder of a substantive visa when my 457 visa application was lodged).
26.I now know that the reason why my visa was withdrawn is because my agent answered “YES” to a question asked when lodging the application. The question asked whether I wanted to withdraw my 457 application if a related nomination was refused. The agent answered “YES” to this question.
27.I gave no instructions to the agent to answer the way she did because to do so would result in me not having any visa should the nomination be refused. The first nomination was refused but I do not think the agent told my employer that this occurred and I was also not told that my visa had been withdrawn because of this. No additional application fees were given to the agent to relodge my application so it would appear that the agent lodged the application and paid for it herself in the hope that I would never find out.
28.The damage caused to me and the lost opportunities that I have endured as a result of this fraudulent conduct by both of these agents is enormous. I have suffered without work rights for a long period of time and I had to leave my employment because I had no work rights.
29.Further, the transitional arrangements put in place after the 457 visa was abolished meant that anyone who held or had lodged a 457 visa application before the 17 April 2017, was protected by the transitional arrangements and could still lodge a 186 ENS visa after 2 years and the age requirements was still 50 yrs of age. My first application lodged on 6 January 2017 met the transitional requirements by the application lodge on 2 May 2017 did not. My first 457 visa was granted in 2013 but I am unsure whether I meet the transitional arrangements because I was dependant 457 visa holder and not the primary applicant.

The applicant appeared before the Tribunal on 10 November 2020 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicant confirmed the contents of his written statement. In response to the Tribunal’s query, the applicant said that he had been granted permission to work as the holder of a bridging visa C since February 2020, but had not been able to find employment due to the restrictions in Melbourne caused by the COVID19 pandemic. He said he was hopeful that now that the restrictions had been eased, he would be able to find work. He added that his nominating employer, Mr Grech of Titanium Caravans Pty Ltd, was willing to re-employ him once he was granted a subclass 457 visa. The applicant advised that he and his wife, who had also been granted permission to work at the same time but who had also been unable to find work during the Melbourne lockdown, had nevertheless continued to undertake voluntary work in Melbourne and regional Australia since March 2017.
The applicant told the Tribunal that the original subclass 457 visa, for which his wife was the primary visa holder, was lodged and granted in India in 2013. It was granted on the basis of an agricultural employer in regional Australia sponsoring his wife and he and their son were her dependents. This visa was valid until 7 January 2017. Before it expired, the applicant had lined up Titanium Caravans Pty Ltd to nominate him for a new subclass 457 visa, in relation to which he was the primary applicant and his wife and son were his dependents. The applicant told the Tribunal that he had worked manufacturing caravans for this company from September 2013 on a full time basis, as permitted by the terms of his dependent subclass 457 visa, and his boss, Mr Grech, was very happy with his work and hence willing to nominate him for the visa. The applicant said that he engaged his former agent, Ms Kantara, and she worked with him and Mr Grech to prepare the sponsorship and nomination to be submitted by the employer, and the subclass 457 visa application, to be submitted by the applicants. The applicant said that in total, he paid about $9,500 in 2 instalments for this to happen.
In response to the Tribunal’s query, the applicant said that the agent did not tell him a lot about the process, but she gave him a checklist to give to Mr Grech to get information together for the nomination application. The applicant said that Mr Grech then liaised directly with the agent about what was needed for the nomination. In response to the Tribunal’s query, the applicant said that he did not complete the subclass 457 visa application himself, the agent did, after he had provided information to her about his family and work experience details. He was not given a copy of it at that time. Nor did he remember signing it but he did remember signing what he thought was the nomination application, along with Mr Grech. The applicant later received a copy of the visa application lodged on 6 January 2017 from either the agent or through his FOI request to the Department, but this was not until late 2018 at the earliest. The applicant said that he was not specifically asked whether he wanted to withdraw the visa application in the event that the nomination was refused. The applicant’s current agent advised the Tribunal that after careful examination of material received via FOI, he had worked out that the former agent had ticked a box in the original subclass 457 visa application indicating that, if the associated nomination application was refused, then the visa application was to be withdrawn. He told the Tribunal that the consequence of this were not explained to the applicant by the former agent, either prior to lodging the subclass 457 visa application or when the associated nomination application was refused. The applicant said that he was definitely not advised by the agent that his visa application had been withdrawn on 31 March 2017, or that a new one was to be lodged on 2 May 2017. He recalled the former agent telling him that his employer’s nomination had been refused due to a mistake about the Australian employees’ salaries but that this could be fixed by the correct information being sent to the Department. In relation to the subclass 457 visa application made on 2 May 2017, the applicant was adamant that he was not advised at the time that this was being done, did not sign it and did not pay the visa application fee for it. He only found out some of this around 15 May 2017, when his boss Mr Grech was advised by the Department that the applicant no longer had work rights as his first subclass 457 visa application had been withdrawn on 31 March 2017 and the later one lodged on 2 May 2017 had been lodged after he ceased to hold a substantive visa.
In response to the Tribunal’s query, the applicant said that he and Mr Grech continued to communicate with the former agent Ms Kantara about the nomination and associated visa applications until late September 2018. He did not recall being advised by Ms Kantara that her migration agent’s registration had been cancelled in 2017, nor that his matter had been transferred to another agent, Mr Rajkumar Saini. He denied seeing or signing the form 956 appointing Mr Saini as his agent and lodged with the Department by the latter on 5 March 2017. The current agent advised that the FOI material they received indicated that there was a form 956 purportedly signed by the applicant on 1 March 2017 and a refund request for having withdrawn the earlier subclass 457 visa application later in March 2017, also purportedly signed by the applicant, which the applicant did not recall ever seeing, and which he emphatically denied signing. In response to the Tribunal’s query, the current agent advised that no complaint had been lodged in relation to Mr Saini over these matters but they were considering doing so. The applicant’s current agent clarified that the former agent Ms Kantara had had her registration cancelled by OMARA on 16 January 2017 for various matters constituting serious misconduct and it had never been reinstated. He noted, however, that she appeared to still be actively working on the applicant and the employer’s cases after having had her registration cancelled, as evidenced by email and text correspondence between her and the applicant and/or Mr Grech up until late September 2018, that he had provided to the Tribunal. He further clarified that the second subclass 457 visa application made on 2 May 2017 was made online so was not required to be physically signed by the applicant.
The applicant’s current agent submitted that the applicant’s case was allegedly transferred to Mr Saini from Ms Kantara as a result of her registration being cancelled, but the applicant was never properly advised of this until late 2018. Moreover, the applicant had never met Mr Saini, never paid him any fees or signed a costs agreement with him. Nor had Mr Grech, the applicant’s employer. At the very least, a costs agreement would have been expected if Mr Saini really had taken over as the migration agent, rather than being a ‘front’ for Ms Kantara, who was continuing to work on the cases even after her de-registration.
The Tribunal discussed with the applicant and his agent the fact that s.98 of the Act effectively deemed the actions of a migration agent to be those of their client, and that it appeared to the Tribunal that Ms Kantara made a legitimate choice in the first subclass 457 visa application form to tick ‘yes’ to the question of whether the visa application should be withdrawn if the associated nomination were refused, as this meant that the applicant would not be affected by s.48 of the Act. The applicant’s current agent conceded that making that choice was open to the agent, and was not necessarily done with malice or negligence. However, he argued that it could not be said that Ms Kantara acted in the applicant’s best interests by ticking ‘yes’ to withdrawing the subclass 457 visa application, as at that time, even if the associated nomination was refused, a new nomination could be lodged and if approved, could be linked to the original subclass 457 visa. The agent noted that the ability to do this was removed by legislative amendment, but this did not occur until late 2018. He further noted that in the applicant’s case, there were 2 failed nominations by Titanium Caravans (27 February 2017 and 25 May 2017) but a third one was approved prior to the legislative amendments: therefore, this could have been linked to the original subclass 457 visa application if it had not been withdrawn. The agent further noted that other legislative amendments also meant that, as the applicant did not hold a subclass 457 visa before April 2017 in his own right, he did not have the advantage of more favourable, grand-fathered subclass 186/187 criteria for permanent residence. While there was an element of speculation as to whether the applicant would have been able to be granted a subclass 186 or 187 visa if he had applied under the earlier criteria, he had still lost the opportunity due to the former agent’s original actions of opting to withdraw the applicant’s first subclass 457 visa application on the refusal of the associated nomination application. The applicant’s current agent submitted that the former agent’s actions did not constitute a reasonable professional choice that was in the applicant’s best interests. He further submitted that the applicant did not have the choice, or the consequences of the choice, explained to him.
The Tribunal noted that it was considering the detailed submissions on PIC 3004(f) and Zhuang’s case made by the applicant’s agent prior to the hearing, and did not have any additional questions to him about these. The agent summarised his submissions as being that Zhuang should now be taken to be the binding authority, and that its circumstances were on all fours with the applicant’s case.
The Tribunal then discussed with the applicant and his current agent whether it could be satisfied that there were compelling reasons for the grant of the visa, noting that the purpose of the (now closed) subclass 457 visa was to grant temporary visas to overseas workers to enable Australian employers to fill labour shortages. It queried whether, given that the applicant had not been able to work for his nominating employer between May 2017 and February 2020 due to not having a bridging visa with permission to work, it could be said that there were compelling reasons for granting the visa now. The Tribunal observed that this was particularly so as the nominating employer had not re-employed the applicant despite the applicant having held a BVC with permission to work since February 2020, and it could be assumed that there were now more Australians looking for work in this field since the rise in unemployment due to the COVID19 pandemic. The applicant reiterated that Mr Grech, his boss, was keen to re-employ him but wanted to have certainty of employment (the 4 years of the subclass 457 visa), and that as far as he knew, Mr Grech had not filled his position in his absence. The applicant’s agent undertook to obtain further information addressing this issue from Mr Grech. In the meantime, he drew the Tribunal’s attention to the fact that emails and texts between Mr Grech and the Department and Ms Kantara from 2017 to late 2018 (well after the subclass 457 visa refusal) indicated that Mr Grech wished to continue to employ the applicant and was adversely affected by not being able to do so. He further noted that Mr Grech tried several times to assist the applicant to get permission to work from the Department, which further corroborated that he had a need for the applicant’s services.
The Tribunal agreed to defer its decision until 24 November 2020 to allow the applicant and his agent to provide additional material to support their case.
On 24 November 2020, the Tribunal received the following additional submissions from the applicant’s agent, together with supporting documents:
…
We now provide the following information:
1.Further confirmation from the employer that the position is still available to the applicant
We attach the following:
·Employers letter dated 11 November 2020 confirming that he still requires the applicant to fill a temporary short-term vacancy.
·Employers letter dated 6 November 2020 which has previously been provided to the Tribunal.
Further, Attachment A to the supplementary submissions that were previously filed, refers to numerous emails between the employer and the agent where the employer calls upon the agent to sort out the applicants work rights so he can resume his employment. Some of these emails are more than 12 months after the applicant ceased his employment because he ceased to have work rights. The applicant was only able to obtain work rights on 27 February 2020 despite a number of previous applicants having been made which were all unsuccessful. The emails demonstrate that the employer continued to have a need for the applicant to return to work and that he was highly regarded by the employer. In some of these emails the employer indicates that “ I have tried replacing him with other workers but none of them are experienced like Harpal” – Email dated 27 Jul 2018
2.That the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control
The original submissions filed in this matter made reference to the remarks of Smith FM in Su & Ors v Minister for Immigration and Citizenship. After indicating that the test is in that sense subjective, Smith FM held:
“... what is ‘beyond control’ should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.”
In the supplementary submissions that have been previously filed, it became clear that what occurred was that the applicant’s agent answered “YES” to a question posed in the ON LINE application process which asked, “if the sponsorship or nomination is refused, do you wish to withdraw your visa application?”.
This is clear from the departments FOI response letter dated 29 August 2019 addressed to the applicant which stated:
Please note: I relation to your "visa application withdrawn request” , I have contacted the relevant business area.
The business area advised that on your 'Temporary Work (Skilled) (subclass 457) Visa application form', under the heading APPLICATION WITHDRAWAL, you had answered "YES" to the question "If the application for sponsorship or nomination is refused or withdrawn, do you wish to withdraw your visa application? The relevant page is contained in the FOI released documents (folio 11 of file BCC2017/66466).
For the purpose of your FOI request, folio 11 of file BCC2017/66466 has been identified to fall within the scope of your FOI request in relation to "visa application withdrawn request', although no further separate document could be located on the file.
·We attach a copy of the departments FOI letter
The agent was well aware that the applicants substantive visa expired on 7 January 2017 and that if the nomination that was lodged prior to the visa expiring was refused, the applicants 457 visa application would automatically be withdrawn. The consequences of this happening were that the applicant would be required to lodge another 457 visa but this time, he would not be the holder of a substantive visa when the subsequent application is made and that he would be granted a Bridging visa C (BVC) with no travel rights and no work rights instead of being on his original BVA which was granted to him when the 457 visa was initially lodged on 6 January 2017.
It is submitted that the agent failed to have regard to the consequences of her actions and the devastating implications for the applicant by answering “YES” to the critical question.
It is clear from the 457-visa refusal decision of the department on 27 September 2018 that the subsequent 457 visa application was lot lodged by the agent until 2 May 2017.
The following occurred:
·First nomination was lodged on 6 January 2017 and refused on 23 February 2017.
·Second nomination was lodged on 2 May 2017 and refused on 25 May 2017
·Third nomination was lodged on an unknown date but was subsequently approved on 31 May 2018
·The applicants second 457 visa was lodged on 2 May 2017 and refused on 27 September 2018
The agent answered “NO” to the same question in the online application when she lodged the applicants second 457 visa on 2 May 2017 and this is clear because the second nomination was refused on 25 May 2017 which was after the 2 May 2017 when then second 457 application was lodged. Had the agent answered “Yes” again, then the second 457 visa application would also have been automatically withdrawn but it was not. The agent had now realised the error she had initially made and the consequences that would follow if she answered “YES” once again.
We attach the following:
·Decision to refuse nomination letter dated 23 February 2017
·Decision to refuse nomination letter dated 25 May 2017
The following is submitted:
·The applicant did not authorise the agent to answer “YES” to the critical question
·The applicant was not aware of the agents conduct and his sworn evidence before the tribunal was that he was never provided with a draft of the visa application to check and approve before it was lodged by the agent.
·It would appear that the employer was also unaware that the first nomination was refused let alone the subsequent (second) nomination that was also refused.
·There was no good reason for the agent to answer “YES” because to do so would have obvious and dire consequences for the applicant because the following would result:
oHe would be subject to Schedule 3 once a further 457 application was lodged
oHe would be granted a BVC instead on a BVA
oHe would not have any travel rights to ravel outside Australia and return
oHe would not have any work rights (unless an application was made for work rights and approved) and he would need to cease his employment with the employer until work rights were granted by the department.
We now know that work rights were consistently refused and were only granted in February 2020.
·Quan v Minister for Immigration and Border Protection had been decided in 2013 and was at the time, the leading authority and which would have been fatal to the applicants 457 visa application. The agent should have been aware of this case and the AAT cases which consistently applied this decision as accepted law on Schedule 3 and 457 visa applications.
·The applicant had “no capacity to control and avoid the happening of the event in a practical or realistic sense “– Su’s case
·We now know that had the applicants 457 visa not been withdrawn, he would be eligible to apply for a permanent 186 visa via the transitional arrangements that were put in place for applications that had a 457 visa or had applied for a 457 visa before 18 April 2017. Consequently, the applicant is now denied that opportunity because although his 457 application was lodged on 6 January 2017, it was withdrawn as a result of the agent’s unilateral and unauthorised conduct.
3.Compelling reasons for the grant of the visa
We repeat the submissions we have previously made namely that, in considering compelling reasons, it is also relevant to consider the circumstances which led to the applicant to be in his current predicament of not being the holder of a substantive visa when his application was lodged, and which were beyond his control.
Taking these circumstances into account on a cumulative basis, the Tribunal should find that there are compelling reasons for the grant of the visa to the applicant.
We also attach a letter dated 20 November 2020 from the applicant’s local member of parliament. This is submitted merely to highlight that whilst the applicant was without work rights, he volunteered his services during the bushfires earlier this year (we have previously submitted further material to the tribunal about then applicant’s assistance to Victorian farmers in rebuilding fences, and farmland as well as feeding stock) and more recently during covid by preparing and distributing meals to those in need
.…

The supporting letter from Maria Vamvakinou, MP for Calwell, is dated 20 November 2020 and records the ties to the community and community work of the applicant and his wife while supporting their application for permanent (this appears to be an error) residence.
In his letter of 11 November 2020, Mr Grech of Titanium Caravans Pty Ltd states as follows:
…
We understand that the subclass 457 visa is a temporary visa enabling employers to fill temporary skilled vacancies.
Harpal did not have any work rights when he ceased working in May 2017, and despite assisting him to make a number of work rights applications, they were all refused by the department. Harpal only obtained his work rights in February 2020 however because of COVID our business was effectively shut until recently.
We manufacture caravans that are used for long distance travel and recreation. Clearly, as a result of trading and travel restrictions for the better part of 2020, we experienced a severe decline in business activity and orders but we are confident we will resume our normal level of business activity despite the fact that this may take another few months to achieve.
The position is still open to him and we have confirmed that we would employ him again once his subclass 457 visa is approved. Given our experience with this application over the last 3 years and the difficulty we experienced trying to obtain work rights for him, we require the security of knowing that Harpal’s visa will be approved this time around.
We regard Harpal as one of our more experienced and competent employees who can make a valuable contribution to our business.
…
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Status of the nomination
Although the Tribunal wrote to the applicants pursuant to s.359A of the Act to invite them to comment on its preliminary view that the nomination in this case had expired after 12 months, the Tribunal notes that the nomination in this case appears to fall within the savings provision in cl 6704(15) of Schedule 13 to the regulations, inserted by F2018L00262 at the time of the closure of the subclass 457 visa program on 18 March 2018, and thus is still valid.
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 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, 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 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; 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, 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 is not the holder of a substantive visa because of factors beyond his or her control
The applicant’s evidence was that he employed a migration agent (not his current agent) to make his subclass 457 visa application prior to the expiry of his previous substantive visa, and this was in fact done. However, that visa application was withdrawn following the refusal of the employer’s nomination by the Department. The applicant maintained that the agent ticked a box on the subclass 457 visa application authorising it to be withdrawn in the event that the associated nomination was refused. This is borne out by documents obtained by the applicant pursuant to a Freedom of Information (FOI) request, which show that this box was ticked.
In response to the Tribunal raising with the applicant and his current agent the fact that s.98 of the Act effectively deems the actions of a person authorised by an applicant to be those of the applicant in respect of a visa application, the applicant and his current agent argued that the applicant’s former agent had not advised the applicant of the existence of the option to withdraw if the associated nomination was refused, nor of the implications of doing so if his last substantive visa had already expired. The applicant further maintained that his former agent then lodged a new subclass 457 visa application without consulting him (after his last substantive visa had expired), and that she continued to act in his matter despite being deregistered as an agent, through a proxy with whom the applicant had never signed a costs agreement.
The Tribunal notes that generally, where an applicant has authorised an agent to act on their behalf and that agent authorises the withdrawal of an application and/or lodges a visa application late, it would not be regarded as being outside the applicant’s control since he or she has authorised the agent to act on their behalf, and that agent’s actions are therefore taken to be theirs (as per s.98 of the Act).
The Department’s Procedures Advice Manual (PAM3, as at 20 January 2021) provides the following guidance:
…
Two separate considerations
Criteria 3003(c) and 3004(c) require the decision-maker to be satisfied that the applicant became an illegal entrant or a person without a substantive visa because of factors beyond the applicant’s control.
Two requirements must be satisfied:
·there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and
·those factors must have been beyond the applicant’s control.
The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa.
14.2 Meaning of ‘beyond the applicant’s control’
The phrase ‘factors beyond the applicant’s control’ is to be given its natural meaning and considered against all relevant circumstances of the applicant.
The test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances that were “external” to the applicant and over which they had no control.
Some circumstances may clearly meet the test, for example where a serious accident or illness renders the applicant incapable of making an application.
Other situations will be more difficult to assess, for example where an applicant claims to have:
·been unaware that they were an illegal entrant or without a substantive visa or
·misunderstood the period during which their visa was in effect or
·misunderstood the conditions attached to their visa.
…
Migration agent inaction
Cases arise where an applicant advises that their agent or lawyer was responsible for not making the application prior to their substantive visa ceasing.
Under law, the actions of the applicant’s agent or lawyer are taken to be those of the applicant. Failure by an agent or lawyer to act in their client’s best interests may be grounds for the client to take legal action, but would not normally be grounds for finding that the applicant became an illegal entrant, or a person in Australia without a substantive visa, due to factors beyond their control. Again, these types of cases need to be considered on their facts. If a migration agent has been deregistered, it may be reasonable to find that negligent action by the agent that has affected the applicant was a circumstance beyond the applicant’s control.
…
The Tribunal accepts that Departmental policy is not legally binding but should be given some weight where it does not conflict with or make more restrictive the underlying legislative provision(s).
In this case, the applicant’s former agent was deregistered in January 2017. The summary of the decision of the Office of the Migration Agents’ Registration Authority (OMARA) states as follows:
On 16 January 2017, the Authority decided to cancel the Agent's registration as a migration agent. The decision was made following the Authority's investigation into four complaints in relation the Agent's conduct. In summary, the Authority was satisfied that the Agent had: • Failed to act in the legitimate interests of her clients; • Engaged in behaviour that demonstrated very limited regard to the clients’ dependence on the Agent; • Failed to demonstrate a sound working knowledge of migration legislation and be frank and candid about prospects of success; • Failed to act in accordance with instructions, keep clients fully informed and advise clients in writing of the outcome of their applications; • Failed to manage client money appropriately; • Failed to provide responses to the Authority’s requests for information, despite being given a number of opportunities to do so, and; • Made misleading and inaccurate statements in support of an application made to the Department. The Authority also found that the Agent had breached clauses 2.1, 2.3, 2.4, 2.6, 2.8, 2.9, 5.2, 5.5, 7.2 and 9.3 of the Code of Conduct and that she was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. Taking into account the serious impact that the Agent's conduct had on her clients, and in the interests of consumer protection, the Authority considered that a cancellation decision was appropriate in the circumstances.
The agent did not claim to be one of the complainants mentioned in the OMARA cancellation decision.
However, the failures, lack of communication and negligent conduct identified by OMARA in respect of the 4 complainants dealt with in the decision (at least 1 of whom was a subclass 457 visa applicant) are consistent with the applicant’s experiences with this agent. In particular, the OMARA decision identifies occasions on which the agent acted without the authority of her clients, to their detriment. Again, this is consistent with the applicant’s evidence. The Tribunal also finds it concerning that the emails provided by the applicant and his current agent suggest that the former agent continued to be involved in the applicant’s matter after having been deregistered, and it is unclear on what basis (if any) the new agent Mr Saini was appointed.
Although the matter is not clear cut, the Tribunal in this case extends the benefit of the doubt and accepts that the cause of the applicant’s first subclass 457 visa application being withdrawn, and a second subclass visa application not being lodged until after the expiry of his last substantive visa, was the unauthorised actions of his former agent, and that this was a factor beyond his control.
Accordingly, the Tribunal accepts that the applicant meets PIC 3004(c).
There are compelling reasons for granting the visa
There is no legal definition of ‘compelling’ in the Act or Regulations. Departmental policy, as set out in the Department’s Procedures Advice Manual (PAM3, as at 20 January 2021), provides the following guidance:
…
Criteria 3003(d) and 3004(d) require the decision-maker to be satisfied that there are compelling reasons for granting the visa.
‘Compelling’ is not defined in migration legislation and should be given its normal dictionary meaning: “brought about by moral necessity”.
Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person.
Circumstances beyond the applicant’s control may also constitute compelling reasons for granting the visa. For example, if the applicant became an illegal entrant, or without a substantive visa, due to a serious accident or illness, such might, depending on the circumstances, satisfy both 3003(c)/3004(c) and 3003(d)/3004(d).
All the circumstances of the case, individually and cumulatively, should be considered in determining whether there are compelling reasons for granting the visa.
Consideration of the likely consequences of not granting the visa may assist in considering whether particular circumstances are compelling.
…
The Tribunal notes that from May 2017 to February 2020, the applicant did not have permission to work on his bridging visa, and was not able to continue working for his nominating employer during that time, despite several requests by the applicant and his employer to the Department to obtain permission to work for the applicant. Nevertheless, the employer’s business was able to continue operating. This raises the issue of whether there are compelling reasons to now grant the applicant a subclass 457 visa, particularly as the employer did not re-engage the applicant once he was able to obtain permission to work approximately 12 months ago.
However, the Tribunal gives weight to the fact that Mr Grech, the owner of the nominating business, has provided detailed and consistent written evidence to the Tribunal to the effect that:
·the applicant has a relatively rare combination of skills and experience that is well suited to Mr Grech’s caravan manufacturing business, where the applicant had worked for a number of years until May 2017, when he lost his work rights;
·Mr Grech would have re-employed the applicant after May 2017 and made several requests to the Department supporting the applicant’s request to regain work rights;
·Mr Grech’s business was operating at a limited capacity from February 2020 until recently due to the restrictions imposed by the COVID19 pandemic, but is now picking up; and
·Mr Grech wishes to re-employ the applicant but is unwilling to do so without the security of the applicant having a substantive visa.
The applicant’s agent has also submitted that a compelling reason for granting the applicant a subclass 457 visa now is that, but for his former agent’s actions, he would most likely have been granted a subclass 457 visa in 2017, once his employer’s nomination of him was approved. The Tribunal notes that this took 3 attempts, with the third – and successful – nomination being approved in May 2018. However, the Tribunal accepts that it is most likely that the applicant would have continued to work for his nominating employer throughout 2017 on a bridging visa A with work rights had his former agent not elected to have his subclass 457 visa application withdrawn after the first refusal by the Department of the associated nomination. While it is possible that the Department would have refused to grant him a visa on the basis of the first (and second) nominations by his employer being refused, the Tribunal accepts that the applicant would most likely have work rights while seeking review of that decision.
In the particular circumstances of this case, and considering them cumulatively, the Tribunal accepts that there are compelling reasons for the applicant to be granted a subclass 457 visa.
Accordingly, the Tribunal is satisfied that PIC 3004(d) is met.
The applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held
The applicant gave evidence that he did not work while holding his bridging visa C, until his work rights were granted on 20 February 2020.
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his current bridging visa or his past visas.
Accordingly, the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to his last substantive visa and subsequent bridging visas, and that he therefore meets PIC 3004(e).
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
As discussed at hearing, there have been recent caselaw developments in relation to PIC 3004(f). As noted in the Tribunal’s s.359A letter to the applicant of 19 February 2020, previous case law indicated that, if an applicant did not have an approved nomination under r.2.72 for a subclass 457 visa by their Australian employer at the time that they ceased to hold their previous substantive visa, then they could not satisfy PIC 3004(f): see Kaur v MIBP [2018] FCCA 141.
However, this interpretation was not taken in the recent case of Zhuang v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] FCA 742 per Colvin J (3 June 2020). This was an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Tribunal that affirmed a decision of the Minister’s delegate not to grant the appellant a subclass 457 visa.
The appellant in this case did not hold a substantive visa at the time of the visa application, and his last substantive visa had ceased in 2009. He was therefore required to satisfy PIC 3004 of Schedule 3: cl 457.211(b)(ii). PIC 3004 requires, as discussed above, satisfaction that the appellant was not the holder of a substantive visa due to factors beyond his control (cl 3004(c)); that there were compelling reasons for the granting of the visa (cl 3004(d)); and that the appellant would have been entitled to be granted subclass 457 visa had he applied for it on the last day he held a substantive visa (cl 3004(f)(i)).
The appellant put forward to the Tribunal a factual position for why he was not the holder of a substantive visa, as well as expressing various compelling reasons for the grant of the visa. The Tribunal did not accept parts of the factual account given by the appellant. After making various adverse findings concerning his evidence, the Tribunal concluded that the appellant did not satisfy PIC 3004 as it was not satisfied that there existed factors beyond his control, or compelling reasons for the grant of the visa.
On appeal, the appellant contended there was a breach of procedural fairness as the Tribunal did not put him on notice that the credibility of his factual account was in dispute, the Tribunal did not challenge or question the account given by him at hearing and, as the factual position was accepted by the Minister’s delegate, the appellant was entitled to assume that the issue on review was whether the facts alleged were sufficient to meet PIC 3004. It was also argued that the Federal Circuit Court erred in exercising its discretion to refuse the relief sought on the basis of futility. The Minister argued that there was no realistic possibility of a different outcome - the appellant could not demonstrate compliance with cl 3004(f)(i) as the appellant would have to prove that he had an approved sponsor on the date his last substantive visa expired in 2009 as required for the grant of a subclass 457 visa: cl 457.223(1) and (4).

On appeal to the Federal Court, Colvin J allowed the applicant’s appeal, finding that:
·by reason of the terms of s 360 of the Migration Act 1958 (Cth), the appellant was entitled to know the issues in relation to the decision under review. It was a breach of that provision and procedurally unfair not to put Mr Zhuang on notice that there was an issue as to whether his account may be accepted so that Mr Zhuang may have a reasonable opportunity to respond and to provide further evidence; and
·the primary judge erred in finding that there would be no utility in granting the relief sought. On its proper construction, the provision required a consideration as to whether, if an application had been made on the relevant date in 2009, it could have been supported by an approved sponsor. It required consideration of a hypothetical. It would be self-defeating if a person had to have taken a step that would only be taken if an application was in fact being made in order to meet a criterion that, on its face, applies where such an application has not been made.
Of relevance to this case is the Court’s reasoning on the construction of PIC 3004(f)(i); namely, that it is a question of whether an applicant could have obtained a sponsor if they had applied when their last substantive visa expired, not that they had to have a sponsor at that time. While this case appears to be at odds with existing authority in Quan v MIBP [2013] FCA 1239 and Kaur v MIBP [2018] FCCA 141, which it did not consider, the Tribunal notes that it is a Federal Court case and therefore takes precedence over Kaur, and it is a more recent case than Quan. Although the authority on this point somewhat unclear, the Tribunal considers that it should take a beneficial approach and follow the reasoning in Zhuang.
The Tribunal gives particular weight to the following parts of Colvin J’s judgment in Zhuang [Tribunal’s emphasis in italics]:
…
Criterion B [PIC 3004(f)(i)] did not require a visa applicant to have actually taken the particular steps required to obtain a visa. Rather, Criterion B required 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 … visa'. Therefore, the criterion was itself framed in terms where it was to apply where there had been no application. It required consideration of an hypothetical, namely what would have occurred if the present visa applicant (applying after the substantive visa had expired) had actually made the application just before the visa expiry. In this case, on a date in 2009.
Therefore, inherent in the hypothetical is the making of an application. A party making such an hypothetical application would have been aware of the need for an approved sponsor and would have obtained one if they were able to do so. Therefore, on its proper construction, the provision required a consideration as to whether, if an application had been made on the relevant date in 2009, it could have been supported by an approved sponsor. That was a factual question which required a consideration of the position of Mr Zhuang many years earlier. It was an inquiry which was never part of the issues considered by the delegate or the Tribunal.
It may be that Mr Zhuang is able to demonstrate that he could have obtained a sponsor if he had made his application on the date in 2009. That is a matter that is entrusted to the Tribunal for determination. It was not for the primary judge, or this Court on review, to form a view as to whether that was the case.
I do not accept the submission for the Minister that in order to satisfy Criterion B, applicants such as Mr Zhuang have to demonstrate that, in fact, prior to the relevant date (in this case a date in 2009) they had in place an approved sponsor. Securing an approved sponsor is part of what would be done in order to bring an application. It is not something that would have been done if an application had not been made, being the premise upon which Criterion B operates. It would be self‑defeating if a person had to have taken a step that would only be taken if an application was in fact being made in order to meet a criterion that, on its face, applies where such an application has not been made.
Therefore, the primary judge was in error in finding that there would be no utility in granting the relief sought.
In the facts of this case, accepting the consistent oral and written evidence given by the applicant and Mr Grech, the Tribunal is satisfied that at the time the applicant’s last substantive visa expired in January 2017, he already had secured employment and sponsorship/nomination offer from an Australian employer, Mr Grech of Titanium Caravans Pty Ltd, who continues to support his visa application.
Accordingly, taking the approach set out in Zhuang, the Tribunal is satisfied that PIC 3004(f) is met in this case.
The applicant intends to comply with any conditions of the visa
The applicant indicated that he would comply with any conditions imposed on a subclass 457 visa granted to him, and there is nothing before the Tribunal to suggest otherwise.
Accordingly, the Tribunal is satisfied that the applicant meets PIC 3004(g).
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 further entry permit, while the holder remained in Australia
Having reviewed the Department’s records, the Tribunal is satisfied that the applicant’s last visa was not a transitional (temporary) visa, and therefore PIC 3004(h) does not apply in his case.
Accordingly, the Tribunal finds that applicant satisfies criterion 3004.
Is criterion 3005 met?
Criterion 3005 requires that 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 Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or r.35AA, r.42(1A) or (1C) of the Migration (1989) Regulations.
There is no evidence in the Department’s records that the applicant was previously granted a visa or entry permit on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or r.35AA, r.42(1A) or (1C) of the Migration (1989) Regulations.
Accordingly, the Tribunal finds that he meets PIC 3005.
For these reasons, the Tribunal also finds that the applicant satisfies PIC 3004 and 3005 for the purposes of cl.457.211.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 457 visa. As the second and third named applicants applied on the basis that they are members of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:
·PIC 3004 and 3005 for the purposes of cl.457.211 of Schedule 2 to the Regulations.
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.