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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Kailay (Migration)
Sign in free to access the full text
Details
AGLC
Kailay (Migration) [2021] AATA 1184
Case
[2021] AATA 1184
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by an applicant who was in Australia at the time of application but did not hold a substantive visa. The applicant sought review of a decision that he failed to satisfy criterion 3004 of Schedule 3 to the Migration Regulations 1994 (Cth). The core of the dispute revolved around whether the applicant's failure to hold a substantive visa was due to factors beyond his control, whether there were compelling reasons for granting the visa, and whether he would have been entitled to the visa had he applied earlier.
The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3004, which applies when an applicant does not hold a substantive visa at the time of application. This criterion necessitates satisfaction that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied with the conditions of previous visas. Furthermore, the Tribunal had to consider whether the applicant would have been able to satisfy the visa criteria if they had applied on the day they last held a substantive visa, as interpreted by the Federal Court in *Zhuang v Minister for Home Affairs* [2019] FCCA 3699.
The Tribunal found that the applicant's former migration agent had their registration cancelled by the Office of the Migration Agents’ Registration Authority (OMARA) due to serious misconduct, including failing to act in clients' interests and failing to act in accordance with instructions. The Tribunal accepted that the agent's negligent actions, specifically withdrawing the applicant's visa application without authority, constituted factors beyond the applicant's control, thereby satisfying criterion 3004(c). Regarding criterion 3004(f), the Tribunal applied the reasoning in *Zhuang*, holding that it required an assessment of whether the applicant *could have* secured a nomination had they applied earlier, rather than requiring an already approved nomination at the time of their last substantive visa. The Tribunal was satisfied that there were compelling reasons for granting the visa, considering the circumstances leading to the applicant's predicament and the employer's commitment to re-employ him.
Consequently, the Tribunal concluded that the applicant met criterion 3004 of Schedule 3. The decision under review was remitted for reconsideration, with the Tribunal finding that the applicant had satisfied the necessary criteria for the grant of the subclass 457 visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEStatus 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
Decision
Reasons for decision
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 36991. 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 orafter 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’ interestso Failing to act in accordance with client’s instructionso Failing to inform clients of relevant factso Making misleading and inaccurate statementso Failing to demonstrate a sound knowledge of migration legislationo Was not a person of integrityo 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 visa19. 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 BIn 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 visas20. 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.…
Ratio Decidendi
Legal Principle Established
The Department’s Procedures Advice Manual (PAM3, as at 20 January 2021) provides the following guidance:…Two separate considerationsCriteria 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 inactionCases 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.