MABOGODAGE (Migration)

[2017] AATA 312

MABOGODAGE (Migration) [2017] AATA 312 (8 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dasun Randika MABOGODAGE
Ms Tayani Chathurika Fernando WEERASOORIYA MAHAWATTAGE
Miss Tanalee Dihansa MABAGODAGE

CASE NUMBER:  1509143

DIBP REFERENCE(S):  BCC2014/1034678 CLF2015/41670

MEMBER:Karen Synon

DATE:8 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

Statement made on 08 March 2017 at 10:56am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Sport stream – Genuine temporary entrant – Visa class closed – No approved nomination – Time of decision criteria

LEGISLATION

Migration Act 1958, ss 65, 140GB, 359A

Migration Regulations 1994, Schedule 2, cl 401.212, cl 401.214, cl.401.311(a), r 2.75A, r 1.13

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 18 June 2015 to refuse to grant the visa applicants Temporary Work (Long Stay Activity) (Class GB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 April 2014.  At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. The criteria for a Subclass 401 visa are set out in Part 401 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 only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Sport stream. This stream enables the entry of sportspersons to participate in sporting activities or engage in competition with Australian residents. The delegate refused to grant the visa because the applicant did not meet cl.401.214 of Schedule 2 to the Regulations because he was not satisfied that the applicant genuinely intends a temporary stay in Australia.

5. On 8 July 2015 the applicants applied for review of the primary decision and provided a copy of the department’s decision to the Tribunal.

6. The applicant appeared before the Tribunal on 8 March 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.  He did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. While the issue in the primary decision is cl.401.214, a preliminary the issue that arises on review is whether the applicant is the subject of a current nomination.

   Nomination requirements

10. Clause 401.212 requires that an applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased (see r.2.75A). That nomination must be have been made by a person who was, at the time of approval, a long stay activity sponsor, exchange sponsor, sport sponsor or religious worker sponsor.

11. Additionally, this criterion requires either that there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with the nominator, or that it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B of the Regulations.

12. On 5 January 2017, in accordance with the provisions of s.359A, the Tribunal wrote to the applicants inviting them to comment on or respond to the following information in writing by 19 January 2017:

    The Tribunal has had regard to information contained on Departmental file records indicating that you are not presently the subject of an approved nomination.  In particular, records contained on the Department's Integrated Client Service Environment (ICSE) database indicate that a nomination in respect of you was granted on 1 August 2014.  This nomination therefore ceased by operation on law on 1 August 2015.

13. On 18 January 2017 an extension of time in which to respond was requested and granted.

14. On 19 January and 6 February 2017 the following documents were received:

    ·     The department’s notification of the approval of the Donvale Cricket Club’s nominations dated 1 August 2014 and 18 June 2015; and

    ·     A screen shot confirming that the Donvale Cricket Club applied for a 408 visa in respect of the applicant on 18 January 2017.

15. Also on 6 February 2017 the applicants’ representative requested that an extension of a further 28 days be provided “until decision of the nomination application”.

16. In response on 14 February 2017 the applicants’ representative was advised that the Tribunal notes that the new nomination lodged is for a 408 visa and the decision under review is the refusal of a 401 visa and therefore, because they not related, the hearing scheduled for 8 March would proceed as advised.  The applicants’ representative was further advised that only issue at that hearing will be whether the applicant is the subject of a valid 401 nomination.

17. At the commencement of the hearing the applicant provided the following documents:

    ·     A contract between the applicant and the Donvale Cricket Club;

    ·     A letter of support from Cricket Australia dated 16 January 2017;

    ·     A letter of support from David Bourke, Vice President, Donvale Cricket Club;

    ·     Acknowledgement from the department of a 408 nomination lodged on 18 January 2017;

    ·     The department’s notification of the approval of the Donvale Cricket Club’s nomination dated 18 June 2015; and

    ·     A covering letter from the applicant in which he detailed his value as a cricket player and coach with the Donvale Cricket Club and said that at the time of application he had an approved nomination however that nomination expired.   He requested “an extension for me to submit new nomination approval”.

18. At the hearing the Tribunal explained that the 401 visa class closed on 19 November 2016 as documented on the department’s website.[1] Therefore the applicant is not able to satisfy an essential requirement of the visa, cl.401.212, which requires him to be identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased. The Tribunal noted that according to the documentation provided with his 359A response his last 401 nomination creased on 18 June 2016 and the Tribunal accepts this however the fact remains that he is not now the subject of an approved nomination and the visa class has closed. The Tribunal emphasised that this is a time of decision criteria which means he must be the subject of an approved 401 nomination at the time the Tribunal makes its decision.

    [1] < 6 March 2017.

19. The applicant said that he played cricket for the Donvale Cricket Club and they requested him to stay on for 2 years.  He applied for a 2 year visa and he got a bridging visa in 2015.  When he received the information from the Tribunal he talked to the President and they tried to apply for another 401 but could not, so applied for a 408 visa.  He also moved lawyers.  He is planning to go home on 31 March.

20. The Tribunal referred to the various documents he had provided at the commencement of the hearing and in particular to the request in his covering letter “to provide extension for me to submit nomination approval”.  The Tribunal explained that as the new nomination lodged in respect of him is for a 408 nomination, a decision on that nomination cannot affect the outcome of this review in relation to a 401 visa and, for this reason, the Tribunal will not grant an extension of time.  The Tribunal explained that when he applied for this visa Class GB contained only one subclass being the Subclass 401 (Temporary Work (Long Stay Activity) and therefore this was the only visa in respect of which the Tribunal can lawfully make a decision.  The Tribunal noted that likewise, a negative decision on this review, would not affect the 408 nomination being considered by the department.

21. The Tribunal asked the applicant if he understood that because he did not have an approved 401 nomination in respect of him that had not ceased the Tribunal could not make a decision in his favour.  He said he did.

22. On the basis of the available information, the Tribunal is not satisfied that the applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act and that the approval of the nomination has not ceased.

23. Therefore, cl.401.212 is not satisfied.

24. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Sport stream.  No claims have been made in respect of the other visa streams.  As requirements that must be met by a person seeking the visa in the Sport stream have not been met, the decision under review must be affirmed.

25. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 401 visa, the secondary applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.401.311(a) which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 401 visa.

    DECISION

26. The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

    Karen Synon
    Member