McInerney (Migration) - [2017] AATA 290

McInerney (Migration) [2017] AATA 290 (24 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Philip Martin Patrick McInerney
Mrs Shirley Ann McInerney
Master Joseph Michael McInerney
Master Samuel Paul McInerney
CASE NUMBER:  1512613
DIBP REFERENCE(S):  BCC2015/1043075
MEMBER:Mary-Ann Cooper
DATE:24 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 24 February 2017 at 2:23pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – No substantive visa – Previous subclass 457 (dependant) visa ceased – Migration agent’s incorrect advice – Nomination criteria – Wife’s application remitted
LEGISLATION
Migration Act 1958, ss 45, 46, 65

Migration Regulations 1994, Schedule 1, Schedule 2, Schedule 3, cl 3004, cl 457.211, cl 457.223, cl 457.224, cl 457.321, Item 1223A, PIC 4001
CASES
Drake (No. 2) (1978-1980) 2 ALD 634
Durzi v MIMIA [2006] FCA 1767
Quan v MIMAC [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 26 August 2015 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 7 April 2015. 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 because at the time of his application he did not hold a substantive visa and did not meet Schedule 3 criteria as required by cl.457.211(b)(ii).
The applicants appeared before the Tribunal on 13 December 2016 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, at the time of application, the applicant meets the requirements of cl.457.211, particularly the Schedule 3 criteria 3003, 3004 and 3005.
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 as long as the last substantive visa they…

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 McInerney (Migration)

Details

AGLC: McInerney (Migration) [2017] AATA 290
Case: [2017] AATA 290
Decision Date: 24 February 2017

CaseChat Overview and Summary

This matter concerned an application for Temporary Business Entry (Class UC) visas, subclass 457, by a husband and his children. The applicants had previously held subclass 457 visas as secondary applicants, which ceased on 20 February 2015. Their migration agent had lodged documents for their wife's sponsorship and nomination but failed to lodge new visa applications before their existing visas expired. The applicants subsequently applied for new subclass 457 visas on 7 April 2015, at which time they held bridging visas. The Administrative Appeals Tribunal (the Tribunal) affirmed the decision not to grant the visas.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.211 of the Migration Regulations 1994, specifically the Schedule 3 criteria 3003, 3004, and 3005. Clause 457.211 requires applicants in Australia without a substantive visa at the time of application to satisfy these Schedule 3 criteria. The applicants argued that their failure to hold a substantive visa was due to the migration agent's inadequate knowledge and that there were compelling reasons to grant the visa, including significant stress to the wife, loss of permanent residency opportunities, adverse impacts on employers and children, and incurred costs.

The Tribunal found that the applicant did not hold a substantive visa at the time of application and had not previously held a Subclass 771 or special purpose visa, thus triggering the requirement to meet Schedule 3 criteria. While the applicants contended that their inability to secure a substantive visa was due to factors beyond their control, specifically the migration agent's error, the Tribunal ultimately affirmed the delegate's decision. The Tribunal noted that the wife's application had been remitted as a primary applicant, but there was no evidence that she met the primary criteria for the visa in this application, nor that the remaining applicants met the primary criteria. Consequently, as the applicant did not satisfy the primary criteria, the secondary applicants also failed to satisfy clause 457.321.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Accordingly, the tribunal finds that the applicant was in Australia on 7 April 2015, the date of the visa application, and that he did not hold a substantive visa on that date and did not previously hold a Subclass 771 or special purpose visa. Therefore cl.457.211 applies to him. It follows that he is required to meet Schedule 3 criteria 3003, 3004 and 3005 under cl.457.211(b)(ii).Background and pre-hearing submissions Departmental records and the evidence provided confirm that the applicant’s wife had been sponsored by her UK employer, which was commencing business in Australia, and arrived in Australia on 23 January 2014 on a subclass 457 visa. The applicant and the couple‘s children followed later on subclass 457 visas as secondary applicants. The applicants’ visas ceased on 20 February 2015 and, although their agent had lodged documents relating to the sponsorship and nomination of the applicant’s wife, no new visa applications had been made. Following attempts to renew their Medicare card, the applicants discovered that their visas had expired. They were directed by the Department to cease work and to report to it. The applicants were then granted bridging visas and the subclass 457 applications the subject of this review were made on 7 April 2015. The applicant’s current representative provided submissions and various documents prior to the hearing. In summary, it was claimed that the applicant was not the holder of a substantive visa at the time of this visa application because he and his wife had relied on their then migration agent who had not had adequate knowledge of the law. As the agent had previously successfully applied for their initial subclass 457 visas, they had trusted he would do the same again. It was not until the applicant’s wife attempted to renew their Medicare card that the problems with their immigration status were discovered. It was submitted that the failure to lodge the visa applications was not within the applicants’ control in a practical or realistic sense because they had engaged an agent to conduct the associated work and there had been no reason not to trust him. In relation to compelling reasons to grant the visa, it was submitted that the applicant’s wife had suffered significant stress as a consequence of the agent’s failures, that she and her family had now lost the opportunity of permanent residence (by virtue of their age), that she and her husband’s employers would be adversely affected by their departure, that they had incurred significant costs and if required to return to the UK would incur further expense and “would go back to certain unemployment.” It was also claimed that there would be a significant adverse impact on their children who had settled well in Australia. It was further claimed that the applicants had substantially complied with the conditions of their previous visas and intended to comply with the conditions of this visa. In relation to criterion 3004(f) it was asserted that had the applicant applied on or before the expiry of his previous 457 visa he would have been entitled to be granted it.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether, at the time of application, the applicant meets the requirements of cl.457.211, particularly the Schedule 3 criteria 3003, 3004 and 3005.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 as long as the last substantive visa they held was not one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision. As recorded in the delegate’s decision, a copy of which was provided with the review application, and as confirmed by Departmental records and the applicant at the hearing, he 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. At the time of this application he was in Australia as the holder of a Bridging visa D (WD-040), his last substantive visa, a subclass 457 (dependant) visa, having ceased on 20 February 2015. Accordingly, the tribunal finds that the applicant was in Australia on 7 April 2015, the date of the visa application, and that he did not hold a substantive visa on that date and did not previously hold a Subclass 771 or special purpose visa. Therefore cl.457.211 applies to him. It follows that he is required to meet Schedule 3 criteria 3003, 3004 and 3005 under cl.457.211(b)(ii).Background and pre-hearing submissions Departmental records and the evidence provided confirm that the applicant’s wife had been sponsored by her UK employer, which was commencing business in Australia, and arrived in Australia on 23 January 2014 on a subclass 457 visa. The applicant and the couple‘s children followed later on subclass 457 visas as secondary applicants. The applicants’ visas ceased on 20 February 2015 and, although their agent had lodged documents relating to the sponsorship and nomination of the applicant’s wife, no new visa applications had been made. Following attempts to renew their Medicare card, the applicants discovered that their visas had expired. They were directed by the Department to cease work and to report to it. The applicants were then granted bridging visas and the subclass 457 applications the subject of this review were made on 7 April 2015. The applicant’s current representative provided submissions and various documents prior to the hearing. In summary, it was claimed that the applicant was not the holder of a substantive visa at the time of this visa application because he and his wife had relied on their then migration agent who had not had adequate knowledge of the law. As the agent had previously successfully applied for their initial subclass 457 visas, they had trusted he would do the same again. It was not until the applicant’s wife attempted to renew their Medicare card that the problems with their immigration status were discovered. It was submitted that the failure to lodge the visa applications was not within the applicants’ control in a practical or realistic sense because they had engaged an agent to conduct the associated work and there had been no reason not to trust him. In relation to compelling reasons to grant the visa, it was submitted that the applicant’s wife had suffered significant stress as a consequence of the agent’s failures, that she and her family had now lost the opportunity of permanent residence (by virtue of their age), that she and her husband’s employers would be adversely affected by their departure, that they had incurred significant costs and if required to return to the UK would incur further expense and “would go back to certain unemployment.” It was also claimed that there would be a significant adverse impact on their children who had settled well in Australia. It was further claimed that the applicants had substantially complied with the conditions of their previous visas and intended to comply with the conditions of this visa. In relation to criterion 3004(f) it was asserted that had the applicant applied on or before the expiry of his previous 457 visa he would have been entitled to be granted it.

Decision

Reasons for decision

As noted above, the tribunal has remitted his wife’s subclass 457 visa application as a primary visa applicant. She has made no claims to be regarded as a primary applicant in this application and there is no evidence before the tribunal in the circumstances of this application that she meets the primary criteria for the visa. There is no claim or any evidence before the tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 457.321, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa. As the applicant does not satisfy the primary criteria for a subclass 457 visa, or any other subclass, the tribunal finds that the secondary applicants also do not satisfy clause 457.321 and, therefore, the criteria for a subclass 457 visa, or any other subclass.DECISION The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.Mary-Ann CooperMemberATTACHMENT - 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 applicants Temporary Business Entry (Class UC) visas.Mary-Ann CooperMemberATTACHMENT - 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.