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

1. 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).

2. 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.

3. 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).

4. The applicants appeared before the Tribunal on 13 December 2016 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent. 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, 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?

8. 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.

9. 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.

10. 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

11. 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.

12. 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.

13. Several documents were attached to the submission including a medical certificate confirming the stress condition of the applicant’s wife, correspondence from the children’s schools and sporting bodies confirming their success and the applicants’ active involvement, copies of the employers’ various standard business sponsorship and nomination approvals, support letters from the employers indicating the detriment they would suffer if the applicant and his wife are required to depart Australia, employment contracts, private health insurance contracts, statements by the applicants as prepared and lodged by the previous agent, the MARA complaint and passport copies.

14. Prior to the hearing the applicants also provided a copy of the outcome of their MARA complaint, dated 1 December 2016, in which their former agent was formally warned. MARA found that the agent had breached his obligations under clauses 2.1, 2.3 and 2.4 of the relevant Code of Conduct because he had not adequately researched the applicants circumstances, had incorrectly advised that they did not need to lodge a subclass 457 visa application, had failed to provide accurate advice and that, due to the applicant’s wife becoming unlawful, she had been required to satisfy additional requirements for her second subclass 457 visa application.  It was also found that the agent did not demonstrate sound knowledge of the legislation, did not take fully into account the applicants’ dependence on his knowledge and experience, and did not deal with them ‘competently or diligently, and as a result did not act in her legitimate interests.’

    The hearing

15. At the hearing the applicant confirmed he had been granted a visa as a secondary applicant to his wife’s subclass 457 visa application and had arrived in Australia in April 2014. He said his wife’s employer was starting up business in Australia and wanted her to work for it because there was no-one in Australia trained in the product. He said they decided to come as a family because they thought it would give their children a better future. He told the tribunal he came after his wife and children because he had to sell his business and organise the family’s affairs in the UK. He said they had two (mortgaged) properties in the UK which they are currently renting. Following his arrival in Australia he said he looked for work, eventually commencing with Lithocraft as a contracts administrator/planner in October 2014. He said he had fitted in well and after about 6 months employment, Lithocraft agreed to sponsor him.

16. He was unclear about the dates of his initial subclass 457 visa but confirmed its cessation date of 20 February 2015 and that his application for a new subclass 457 visa, as sponsored by Lithocraft, was made on 7 April 2015.

17. The tribunal outlined the provisions of Schedule 3 that he was required to meet. When asked about the reason for the gap between the expiry of his last visa on 20 February 2015 and his application of 7 April 2015, and whether it was beyond his control, the applicant told the tribunal that his wife had been organising the renewal of their visas and they had employed the agent to do it. He confirmed that his employer had sought to sponsor him around the same time and, while he had thought it strange that he had not seen any paperwork, the agent had said to leave it to him. He said it was when his wife had inquired about the expiry of their Medicare coverage she was told that there was a problem with immigration. She immediately contacted the agent who he said, consistently with his wife’s evidence, brushed them off. He maintained they had visas and told them to go back to Medicare. After this happened a few times, the agent told them to go on to the Department’s website and that it would confirm their visa status. When they had attempted to do this they realised there was a problem and contacted the agent. He told them to leave it with him. In the meantime the Department had called the applicant’s wife at work and advised her of their status and they were required to cease work. He claimed that he and his wife had gone into a panic. The agent acknowledged his mistake and said that he would look after it. They were told to present to the Department and diverted from their holiday to the Department’s Sydney office in order to do so. They were given Bridging visas and initially were not permitted to work. He said the agent then organised for working rights for them and they were able to return to their employment. He had no knowledge of calls to DIBP or advice on the Department’s website as referred to in the submission made by the agent to the Department.

18. When addressing the issue of whether the failure to lodge his visa application was beyond his control, the tribunal observed that the same agent had been retained by his employer for his nomination approval application. The tribunal asked the applicant why they had continued to engage him. He responded that he had all the paperwork from their prior application and it was convenient for his employer to do so. He said he had thought that, as a paid professional, he could rely on him.

19. The tribunal asked why he had not sought a second opinion regarding his immigration status, given the agent’s apparent failings, or contacted the Department and asked about his visa status. He reiterated that he, and particularly his wife, had raised the issues with the agent, that he constantly gave his reassurance, they were paying him and they had relied on him.

20. When asked if there were any compelling reasons to grant the visa, he referred to his employment. He claimed that he is regarded as a mainstay of the company and that they had struggled to fill his position. He said he had fitted in well and believed he had contributed to the company’s increased productivity and profitability. He said he had brought 23 years industry knowledge to the position. Correspondence from his employer confirmed the applicant is highly valued employee. The Operations Manager states that he has “played a critical role in winning some of our new contracted clients. Phil has been heavily involved in finding new and more efficient ways to meet our client’s needs” and has successfully negotiated several contracts. It is further claimed that his loss would “adversely affect profitability and productivity” and his departure “would be a considerable loss” and heavy costs would be incurred in replacing him”, Similar correspondence was received in relation to his wife’s employment. The applicant claimed that they would be greatly disadvantaged by a return to the UK as he had sold his business and he and his wife would have great difficulty sourcing new employment.

21. His wife’s evidence in relation to the compelling circumstances was consistent with that of the applicant. As confirmed by his children at the hearing, they have adapted well and ‘love it in Australia’. The children were persuasive in their evidence of their reasons for wishing to remain in Australia and that their futures are here and would be adversely impacted if they are required to depart. This evidence is further discussed in the decision related to his wife’s application (AAT 1512702).  

22. The applicant claimed that he had complied substantially with his last substantive visa and intended to comply with any conditions that attached to a subclass 457 visa if granted ( cl.3003(e) and (g).

23. The tribunal then considered whether the applicant would have been entitled to be granted the visa if he had applied for it on the day he last held a substantive visa, that is, 20 February 2015. (3004(f)(i)). The tribunal noted that although his employer was an approved sponsor at that time, it had not applied for a nomination approval for him until 7 April 2015, the same day the applicant applied for this visa. Therefore there was no nomination application either made or approved in respect of him at 20 February 2015. He therefore would have been unable to meet an essential criterion, cl.457.223(4)(a), for the grant of the visa at 20 February 2015. The tribunal also noted some concerns on the Department’s file regarding the applicant’s satisfaction of cl.457.224(1) (PIC 4001) and these were addressed at the hearing with the applicant. The tribunal allowed the applicant’s representative some time to provide further submissions in this regard. The representative provided a further submission however it did not engage with the decision in Quan[1] (as requested by the tribunal at the hearing) and it is also premised on an application for nomination approval having been made on 16 January 2015 which, as was later acknowledged, is not correct.

    [1] Quan v MIMAC [2013] FCCA 1254

    FINDINGS AND REASONS

    Is criterion 3003 met?

24. 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 to him.

    Is criterion 3004 met?

25. The requirements of Item 3004 depend, to some extent, on whether the applicant’s circumstances fall within cl.3004(a) or cl.3004(b), that is whether:

    ·The applicant ceased to hold a substantive visa or criminal justice visa on or after September 1994 (cl.3004(a)) or

    ·The applicant entered Australia unlawfully on or after September 1994 and has not subsequently been granted a substantive visa (cl.3004(b))

26. As noted above, the applicant ceased to hold a substantive visa on 20 February 2015. Therefore cl.3004(a) applies to him. 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. In addition, the tribunal must be satisfied that: the applicant would have been entitled to be granted the visa on the day he or she last held a substantive or criminal justice visa; that the applicant intends to comply with any conditions of the visa; and that, 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.

27. As recorded in the delegate’s decision, the delegate did not accept that the applicant had demonstrated that he was not the holder of a substantive visa because of factors beyond his control. Consequently the applicant was found not to satisfy cl.457.211 and the visa was refused, as were the visas of his wife and children under cl.457.321.

28. The tribunal has come to the same conclusion as the delegate but for different reasons, as discussed below.

    Whether the applicant would have been able to satisfy the criteria or be granted the visa on the day he last held a substantive visa: 3004(f).

29. The requirements of Item 3004(f) depend on whether the applicant’s circumstances fall within cl.3004(a) or cl.3004(b). Specifically:

    oin 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; 3004(f)(i)  or

    oin 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; 3004(f)(ii).

30. As noted above, the applicant’s circumstances fall within cl.3004(a). It requires that the Minister is satisfied that 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 visa.

31. The applicant applied for this Temporary Business Entry (Class UC) visa on 7 April 2015 however he last held a substantive visa on 20 February 2015. The Tribunal has considered whether it is satisfied that the applicant “would have been entitled to be granted” a Class UC visa if he had applied on 20 February 2015. The ordinary meaning of “entitled” denotes “a legal right or just claim to do, receive, or possess something.”[2]

    [2] accessed 23 January 2017

32. In considering whether the applicant would have been so entitled, the tribunal notes the distinction in the wording between 3004(f)(i) and (f)(ii). That is, (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 notes the 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[3]. 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).

    [3] 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.

1. The Department’s Procedures Advice Manual (PAM 3) 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.

2. The tribunal notes that, while it may be guided by policy, it is not bound to follow it.[4] 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 notes that the policy generally reflects a distinction in the meaning of the wording between cl.3004(f)(i) and (f)(ii) and seems to accord with a plain reading. 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.

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

3. In relation to cl.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, this necessarily entails consideration of section 65 of the Act because it 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.

4. On the tribunal’s analysis, 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 cl.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.

5. In Quan v MIMAC [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]).

6. 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 that all the criteria be met (s.65(1)(a)(i) and (ii)) - i.e. time of decision criteria and health criteria - or whether something less is required.

7. As noted above, under s.65 of the Act, an applicant is not entitled to be granted a visa until, relevantly, 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 time of application and time of decision criteria. The adoption of such an approach appears to create a heavy burden on applicants who need to meet cl.3004 to satisfy cl.457.211. Notwithstanding this concern, 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 high bar to meet cl.3004 is arguably not inconsistent with that policy. In addition, in a context in which cl.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 warrant to so confine the more broadly worded cl.3004(f)(i).

8. In respect of this application, unlike the situation in Quan, Departmental records confirm that the applicant was able to make a valid application under Item 1223A of Schedule 1 as he could specify the person who proposed to nominate an occupation in relation to him. Departmental records confirm that person, his employer, was an approved sponsor for the periods 13 August 2012 to 13 August 2015 and 29 October 2015 to 29 October 2020. [5] The nomination approval application in respect of this applicant however was not made until the date of his visa application, 7 April 2015. Therefore, although he may have met the Schedule 1 requirements on the last day he held a substantive visa, as discussed above, an entitlement to the grant of a visa would only have arisen if the Minister was satisfied that the criteria for it under the Act and Regulations were met: s.65(1)(ii). This includes an assessment of the Schedule 2 criteria for the grant of the visa. The criteria for the subclass 457 visa are set out in Part 457 of Schedule 2 to the Regulations, and include, for applicants applying on the basis of sponsorship by an Australian business, the criteria in cl.457.223(4).

   [5] The sponsorship on foot at 20 February 2015 was, however, sponsorship in relation to a different nominee.

9. Among other requirements, cl.457.223(4) relevantly required as follows:

   Standard business sponsorship

   (4)      The applicant meets the requirements of this subclause if:

   (a)      each of the following applies:

   (i)      a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)      the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)      the approval of the nomination has not ceased as provided for in regulation 2.75; and

10. As noted above, at the date of his substantive visa expiry on 20 February 2015, there was no nomination application lodged or approved in respect of the applicant. While the Department’s records demonstrate that the employer’s sponsorship had been approved on 5 February 2015, the nomination approval application was not lodged until 7 April 2015 and was not approved until 16 April 2015, both dates after the expiry date of the applicant’s visa. The applicant therefore would not have been able to satisfy the mandatory nomination criteria in cl. 457.223(4)(a), for a subclass 457 visa, on 20 February 2015.

11. Subclass 457 is the only visa subclass available in the Temporary Business Entry (Class UC) class. No claims have been made in respect of any stream other than the standard business sponsor stream and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. The tribunal therefore finds that the applicant would not have been entitled to the grant of a Temporary Business Entry (Class UC) visa on any basis if he had applied on the day he last held a substantive visa, that is, 20 February 2015.

12. It follows, the applicant would not ‘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.’ The applicant therefore does not satisfy Schedule 3 criterion 3004(f).

13. As the applicant does not satisfy Schedule 3 criterion 3004(f), it is unnecessary to consider whether he satisfies Schedule 3 criteria 3004(c), (d), (e), (g) and (h).

14. For these reasons, the applicant does not meet Schedule 3 criterion 3004 and therefore does not satisfy c.457.211(b)(ii).

15. The tribunal acknowledges that it came to a different conclusion in respect of his wife, also a primary visa applicant for a subclass 457 visa, however her circumstances were readily distinguishable from those of this application[6]. That is because she had previously been successfully sponsored and nominated by her employer and the sponsorship and second nomination had also been approved as at the date of the cessation of her visa on 20 February 2015.  On this basis, in particular her past successful application for a subclass 457 visa with the same employer, the tribunal was satisfied she would have been entitled to be granted the visa on 20 February 2015. In the circumstances of this applicant there was no nomination approval application even lodged at the time of the cessation of his previous visa nor was there a prior record of a successful 457 visa grant with his employer.

    [6] AAT 1512702

    CONCLUSION

16. For the above reasons, for the purposes of cl.457.211(b)(ii), the applicant does not satisfy Schedule 3 and, because all the relevant clauses must be met, cl.457.211 is not met.

17. 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 applicants

18. The delegate also refused visas to the secondary applicants, the wife and children of the visa applicant and who are included in his application.

19. 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

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

    Mary-Ann Cooper

    
    

    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.