Kwon (Migration)

[2019] AATA 2923

Kwon (Migration) [2019] AATA 2923 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daero Kwon

CASE NUMBER:  1615018

DIBP REFERENCE(S):  BCC2016/1297167

MEMBER:Warren Stooke AM

DATE:14 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 March 2019 at 2:46pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – sponsorship for employment by standard business sponsor – substantive visa expired at time of application – Working Holiday visa expired – applied while on Bridging visa – did not previously hold Subclass 771 or special purpose visa – not the subject of nomination – did not have substantive visa – decision under review affirmed

LEGISLATION
Acts Interpretation Act 1901 (Cth), ss 15AC
Migration Act 1958 (Cth), ss 45, 46, 48, 65, 84,86, 116
Migration Regulations 1994, Schedule 2, cls 457.211, 457.223, Schedule 3, criteria 3003, 3004, 3005

CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 March 2016. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.211 of the Regulations was not met because the applicant’s substantive visa had expired at the time of application for a 457 visa.

4. The applicant was invited to appear before the Tribunal on 6 February 2019 to give evidence and present arguments. On 30 January 2019 the applicant applied to have the case set down for hearing post his return from overseas in early March 2019. The Tribunal agreed to this adjournment and set the matter down for hearing on 14 March 2019.

5. On 13 March 2019, the Tribunal was informed by the applicant, which was confirmed by his agent, that he wished to forgo his rights to a hearing scheduled for 14 March 2019 and asked that the Tribunal determine the matter on the papers. The applicant stated: “My request is due to the expiry of the corresponding nomination as well as changes in circumstances and I wish to explore other options available to me.”

6. The applicant was represented in relation to the review by his registered migration agent.

   Substantive issues

7. At the time the visa 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). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

8. The delegate refused to grant the visas on 14 September 2018 on the basis that cl.457.211 was not met because the applicant’s substantive visa (a subclass 417 Working Holiday visa) had expired and a Bridging visa was issued on 22 March 2016. The applicant made the subclass 457 visa application on 29 March 2016 whilst subject to a Bridging Visa. In this regard, the applicant’s Working Holiday visa expired on 13 February 2016.

9. The Tribunal notes that Criterion3004 required that the applicant satisfied the Minister that he was not the holder of a substantive visa at the time of the subclass 457 visa application because of factors beyond his control, that there were compelling reasons for granting the visa, that the applicant had substantially complied with the terms of the last substantive visa he held (and any subsequent bridging visa granted to him), and that he would have been entitled to be granted a subclass 457 visa on the day on which he last held a substantive visa. The applicant also had to intend to comply with the conditions to which a subclass 457 visa would be subject.

10. The Tribunal notes that the applicant was granted a subclass 417 (Working Holiday) visa on 23 January 2014 and was subject to several applications for extension. The applicant made his subclass 457 visa application on 29 March 2016, which was beyond the expiry of the last substantively held 417 Working Holiday Visa, which was 13 February 2016. The Tribunal received a review application from the applicant on 29 March 2016.

11. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of Criterion3004 of Schedule 3 to the Regulations for the purposes of cl.457.211 of Schedule 2 to the Regulations.

    Does the applicant satisfy the relevant Schedule 3 criteria?

13. 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.

14. 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?

15. 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?

16. 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.

17. 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.

18. 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.

    Applicant’s Evidence

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

20. In considering whether the applicant would have been so entitled, the Tribunal notes that there is a distinction in the wording between sub-items 3004(f)(i) and (f)(ii). Specifically, sub-item (f)(i) requires an assessment as to whether the applicant would have been entitled to be granted a visa of the class applied for when he or she last held a substantive visa, whereas (f)(ii) requires that the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully. The Tribunal acknowledges the legislative interpretation presumption that, where the legislature could have used the same word but chose to use a different word, the intention was to change the meaning[2]. In seeking to correctly interpret and apply the different language in relation to the different categories of applicants, the Tribunal has had regard to Departmental policy in relation to item 3004(f).

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

    “MUST HAVE OTHERWISE BEEN ENTITLED TO THE VISA APPLIED FOR

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

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

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

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

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

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

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

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

    Criterion 3004(f)(ii):

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

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

22. The Tribunal notes that, while it may be guided by policy, it is not bound to follow it.[2] In the circumstances of this application the Tribunal accepts that it is a relevant consideration and has had regard to it in the context of the applicant’s individual circumstances. The Tribunal further notes that the policy reflects a distinction in the meaning of the wording between sub-items 3004(f)(i) and (f)(ii) that seems to accord with a plain reading of the wording. It acknowledges the fact that the provisions apply to different groups of people who, it appears the legislature has determined, are to be assessed differently under the Act and Regulations.

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

    Section 65 Decision to grant or refuse to grant visa

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

    Minister:
    
    (a) if satisfied that:
    
    

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

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

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

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

    is to grant the visa;

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

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

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

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

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

28. On the evidence before the Tribunal:

    i.It is not satisfied that the applicant is the subject of a 457 visa application with CPM Tile and Stones Pty Ltd, as he has advised the Tribunal that his nomination has expired and his circumstances have changed to the extent that he is exploring other options;

    ii.It finds that the applicant was subject to a Bridging visa at the time of application for a 457 visa; 

    iii.It finds that the applicant breached his visa conditions by not having a substantive visa at the time of application.

29. Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to refuse the applicant’s visa.

    The discretion

30. The Act and the Migration Regulations 1994 (Regulations) do accommodate the use of discretion is to be guided by having regard to all compelling and the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.^[3] However, PAM3 constitutes a useful starting point for the exercise of the discretion.

31. A 457 visa authorises the visa holder to stay in Australia temporarily. It does not create an expectation of a permanent stay. It enables a business to sponsor temporarily a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of skilled occupations.

32. The Tribunal has reviewed the submission of the applicant’s representative [Department File–Folio 52-65] as part of the review of the delegate’s decision.

33. The Tribunal notes that as part of the assessment of ‘compelling’ circumstances, that the impact on the applicant should be considered, if the delegate’s decision is to be affirmed. In this regard, the applicant has not put to the Tribunal any new material concerning ‘compelling’ circumstances that should be considered by the Tribunal. As such, the Tribunal is not satisfied that the exercise of discretion in the applicant’s favour, in these circumstances, would be appropriate.

34. There is no evidence before the Tribunal that the applicant has not co-operated with the department. To the contrary, the applicant has cooperated with the Department since arriving in Australia.

1. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future applications into account.

2. There are no secondary visa holders whose authority to remain in Australia would be affected by the Tribunal’s decision. This consideration does not apply.

3. In considering whether to exercise its discretion to grant the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

4. Before this decision, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the applicant returned to the United Kingdom. The applicant did not say anything at the hearing, and did not submit any written evidence, that would change that position.

5. Accordingly, the Tribunal is applicant not satisfied criterion 3004 has been met.

6. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.457.211.

7. Given the findings above, the appropriate course is to affirm the delegate’s decision regarding the application.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

   Warren Stooke AM
   Member

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

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

   [3]See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. The courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.

   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.