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

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).
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).
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.
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.
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.”
The applicant was represented in relation to the review by his registered migration agent.
Substantive issues
At the time the visa application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set…

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 Kwon (Migration)

Details

AGLC: Kwon (Migration) [2019] AATA 2923
Case: [2019] AATA 2923
Decision Date: 14 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal, through Member Warren Stooke AM, considered an application for a Temporary Business Entry (Class UC) visa, subclass 457. The applicant had applied for this visa while holding a Bridging visa, having previously held a Working Holiday visa that had expired. The applicant was not the subject of a nomination and did not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether the applicant would have been entitled to be granted the subclass 457 visa had they applied for it at a time when they last held a substantive visa or, alternatively, if they would have satisfied the criteria for the visa on the day they last entered Australia unlawfully. This involved interpreting the specific wording of sub-items 3004(f)(i) and 3004(f)(ii) of Schedule 3 to the Migration Regulations 1994, which distinguish between an applicant's entitlement based on their last substantive visa and their ability to satisfy criteria on the day of unlawful entry.

The Tribunal reasoned that the distinction in wording between sub-items 3004(f)(i) and 3004(f)(ii) indicated a legislative intention to apply different tests. Sub-item (f)(i) requires an assessment of entitlement to the visa when the applicant last held a substantive visa, whereas sub-item (f)(ii) requires satisfaction of the visa criteria (excluding Schedule 3 criteria) on the day of unlawful entry. The Tribunal noted that Departmental policy, as outlined in the Procedures Advice Manual (PAM 3), distinguished between these sub-items, with (f)(i) requiring an assessment of entitlement and (f)(ii) focusing on satisfying criteria. However, the Tribunal also acknowledged that such policy guidelines are advisory and cannot override the plain wording of the legislation. Ultimately, the Tribunal found that the applicant did not meet the criteria under the relevant provisions.

The Tribunal affirmed the delegate's decision not to grant the applicant the Temporary Business Entry (Class UC) 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

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 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] 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). The Department’s Procedures Advice Manual (PAM 3) (as at 27 July 2017) states:“MUST HAVE OTHERWISE BEEN ENTITLED TO THE VISA APPLIED FORCriteria 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.”

Decision

Reasons for decision

Given the findings above, the appropriate course is to affirm the delegate’s decision regarding the application.DECISION The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.Warren Stooke AMMember[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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.Warren Stooke AMMember[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.