Liu (Migration)

[2021] AATA 1168

Liu (Migration) [2021] AATA 1168 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yihan Liu
Mr Cangyu Li

CASE NUMBER:  1826050

DIBP REFERENCE(S):  BCC2018/944242

MEMBER:Bridget Cullen

DATE:16 February 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 16 February 2021 at 12.06pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– failed to satisfy Schedule 3 Criterion 3004 – applicant did not hold a substantive visa at the time of decision – relevant point in time – sponsor was not yet an approved Standard Business Sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, cls 457.221A, 457.223, Schedule 3

CASES
Hossain (Migration) [2019] AAT 4692
Kaur v MIBP [2018] FCCA 141
Quan v MIBP [2013] FCA 1239
Zhuang v MICMSMA [2020] FCA 742

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 3 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).

2. The visa applicants applied for the visas on 27 February 2018. 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.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.221A because they did not satisfy Schedule 3 Criterion 3004.

4. The applicants appeared before the Tribunal on 16 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Qiang Liu, a friend of the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Although the applicant required full interpretation, it was clear to the Tribunal that she had a level of proficiency in English, as she spoke to the Tribunal in English at different junctures. The representative described the applicant’s level of English as “reasonable,” and said that she did not require interpretation of discussions relating to “legalities”.

5. The applicants were represented in relation to the review by their registered migration agent, Mr Kian Christopher Bone, of Macpherson Kelley (MARN 1069183). The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the relevant Schedule 3 Criterion, namely 3003, 3004 and 3005.

   Does the applicant satisfy the relevant Schedule 3 criteria?

8. Relevantly to this matter, for visa applications made on or after 14 September 2009, cl.457.221A requires that an applicant who is outside Australia at the time of application but in Australia at the time of decision must either at that time hold a substantive visa other than a Subclass 771 or special purpose visa, or if not the holder of a substantive visa meet specified requirements. These are that the last held a substantive visa was not a Subclass 771 or special purpose visa and the Schedule 3 criteria 3003, 3004 and 3005 are met. These criteria are extracted in the attachment to this decision.

9. In the present case, the applicant did not hold a substantive visa at the time of decision and did not previously hold a Subclass 771 or special purpose visa.

   Is criterion 3003 met?

10. 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?

11. 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.

12. 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.

13. 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.

14. The applicant held a student visa that was granted on 30 January 2014, which ceased on 15 March 2016. A few days before this visa expired, on 7 March 2016, the applicant was nominated under the Regional Sponsored Migration Scheme and lodged an application for a Subclass 187 (Direct Entry) visa on the same day. The Regional Sponsored Migration Scheme nomination was refused on 8 February 2018.

15. The applicant subsequently withdrew their Subclass 187 (Direct Entry) visa application on 27 February 2018 and lodged the application for the Subclass 457 – Temporary Work (Skilled) visa which is subject to this application for review.

16. As the applicant did not meet the requirements of Criterion 3004 and did not demonstrate that there were factors beyond their control that led them not being the holder of a substantive visa, the delegate refused the visa.

17. On 18 February 2020, the Tribunal wrote to the applicant in the following terms:

    “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    -      Departmental records indicate that at the time you applied for the visa, on 27 February 2018, you were not the holder of a substantive visa.

    -     Departmental records indicate that the last substantive visa held by you was a Subclass 573 visa which was in effect until 15 March 2016.

    -     Departmental records indicate that as at 15 March 2016 you were 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 above information is relevant because one of the requirements for the grant of  the Subclass 457 visa is that if you are in Australia and you did not hold a substantive visa at the time of application, then you must satisfy Schedule 3 criteria, which relevantly includes 3004.

    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 15 March 2016, 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 15 March 2016. 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.

    You are invited to give comments on or respond to the above information in writing.”

18. The Representative provided a response on 17 March 2020, submitting that it was both inappropriate to apply cl.3004(f) to the applicant’s circumstances as applied in the decisions of Kaur v MIBP [2018] FCCA 141, Quan v MIBP [2013] FCA 1239 and Hossain (Migration) [2019] AAT 4692 as the applicant’s circumstances were distinguishable from those cases and that the Tribunal’s application of cl.3004(f) rendered the clause invalid to the extent that it is uncertain and unreasonable.

19. Following the hearing, the representative provided further submissions on 23 June 2020 in relation to Zhuang v MICMSMA [2020] FCA 742. The submissions acknowledge that case is not consistent with Kaur v MIBP but that the interpretation in Zhuang v MICMSMA should be favoured in this matter, and made submissions that the matter of Zhuang can apply in the applicant’s circumstances before the Tribunal now, and submitted that the Tribunal can remit the application on that basis.

20. The review applicant argues that following Zhuang v MICMSMA, the Tribunal is required to consider whether, if an application had been made on the date the visa applicant last held a substantive visa, it could have been supported by an approved sponsor. Colvin J at [53] stated that this was 'a factual question which required a consideration of the position of [the applicant] many years earlier'. There is no doubt that the relevant date for this assessment is the date on which the visa applicant last held a substantive visa.

21. Here, the Tribunal has considered whether the evidence before it demonstrates that the sponsorship and the nomination could have been obtained at the relevant point in time. The relevant date is 15 March 2016, which is the date on which the applicant’s last substantive visa, a Subclass 573 student visa.

22. The applicant asserts that refusal of the Subclass 187 (Direct Entry) visa nomination was a factor that was outside of the applicant’s control as it is a “company centric” visa.

23. Following the refusal of the Subclass 187 (Direct Entry) visa nomination, and withdrawal of the related visa application by the applicant, the applicant was nominated for the Temporary Work (Skilled)(Subclass 457) visa that is the subject of this review.

24. On 6 August 2018, the nomination, made by Huaxia International Pty Ltd, for the role of Café or Restaurant Manager, was approved.

25. At the relevant point in time, 15 March 2016, the sponsor, Huaxia International Pty Ltd, was not yet an approved Standard Business Sponsor. The sponsor was not approved as a Standard Business Sponsor until 10 April 2017, more than a year after the relevant point in time.

26. For these reasons, the Tribunal considers that as at 15 March 2016, being the day the applicant last held a substantive visa, the applicant would not have met the requirements in cl.457.223(4)(a) which requires that a nomination of an occupation made under s.140GB by an approved sponsor in relation to the applicant has been approved. The sponsor was not yet approved to be a Standard Business Sponsor.

27. Consequently, the Tribunal finds that the applicant would not have been entitled to be granted the Class UC (Subclass 457) visa if she had applied for the visa on the day she last held a substantive visa.

28. Given the above findings, the Tribunal finds that cl.3004(f)(i) is not satisfied. As noted above, the alternative requirement in cl.3004 (f)(ii) is not relevant to the circumstances of this case. Accordingly, the applicant does not satisfy cl.3004(f). As the Tribunal has found that the applicant does not meet one of the requirements in 3004, it is not necessary to consider any of the other requirements in 3004. For these reasons, the applicant does not satisfy Criterion 3004 for the purposes of cl.457.221A.

29. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    Secondary applicant

30. The secondary applicant is dependent for the grant of the visa on the applicant satisfying the primary criteria and being the holder of a subclass 457 visa. Accordingly, the secondary applicant does not meet cl.457.321.

31. There is no evidence before the Tribunal that the secondary applicant meets the primary visa criteria in his own right. Consequently, the secondary applicant does not satisfy the relevant criteria for the visa.

    DECISION

32. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Bridget Cullen
    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.