Mudulu (Migration) - [2019] AATA 282

Mudulu (Migration) [2019] AATA 282 (6 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Andrea Mudulu
CASE NUMBER:  1610566
DIBP REFERENCE(S):  BCC2016/1052132
MEMBER:Karen Synon
DATE:6 February 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 06 February 2019 at 10:35am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Schedule 3004 requirements not satisfied – last substantive visa ceased prior to application – factors beyond the applicant’s control for substantive visa ceasing – compelling reasons for visa grant – substantial compliance with previous visa conditions – whether the applicant would have been entitled to the same class visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.211; Schedule 3, cl 3004
CASES
Quan v MIMAC [2013] FCCA 1254
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 5 July 2016 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 11 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 was not met because the applicant did not satisfy one of the Schedule 3004 requirements.
The applicant appeared before the Tribunal on 6 February 2019 to give evidence and present arguments. The applicant requested the assistance of an interpreter in the Italian and English languages however her services were not required by the applicant during the hearing.
The applicant was represented in relation to the review by his registered migration agent. She did not attend the 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 the visa applicant satisfies the requirements of the Schedule 3 criterion 3004 for the purposes of cl.457.211(b)(ii).
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 so long as the last substantive visa they held was not a Subclass 771 (Transit) or special purpose visa and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
Visa status at the time of application
During the hearing the applicant…

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 Mudulu (Migration)

Details

AGLC: Mudulu (Migration) [2019] AATA 282
Case: [2019] AATA 282
Decision Date: 6 February 2019

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)), by an applicant who did not hold a substantive visa at the time of application. The applicant's last substantive visa, a Subclass 572 student visa, had ceased on 11 April 2015, and the Subclass 457 application was lodged on 11 March 2016. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant satisfied the Schedule 3 criterion 3004, which applies when an applicant does not hold a substantive visa at the time of application.

The legal issues before the Tribunal were whether the applicant met the requirements of Schedule 3 criterion 3004. This criterion necessitates satisfaction that the applicant is not holding a substantive visa due to factors beyond their control, that compelling reasons exist for granting the visa, and that the applicant has substantially complied with the conditions of their previous visas. Furthermore, the Tribunal had to be satisfied that the applicant would have been entitled to the visa had they applied at an earlier relevant point, intended to comply with visa conditions, and that any previous transitional visa held was not subject to a condition precluding further visa grants while remaining in Australia.

The Tribunal found that criterion 3003 was not applicable to the applicant. In relation to criterion 3004, the Tribunal noted that the applicant's last substantive visa ceased on 11 April 2015, and the application was lodged almost a year later. The Tribunal concluded that the applicant had not provided sufficient evidence to demonstrate that the cessation of their substantive visa was due to factors beyond their control, nor had they established compelling reasons for the grant of the visa. Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 457 visa.

Orders

Orders of the court

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Background

Background to the litigation

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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 the visa applicant satisfies the requirements of the Schedule 3 criterion 3004 for the purposes of cl.457.211(b)(ii).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 so long as the last substantive visa they held was not a Subclass 771 (Transit) or special purpose visa and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.Visa status at the time of application During the hearing the applicant confirmed that his last substantive, a student (subclass 572) visa ceased on 11 April 2015 and that he lodged this 457 application on 11 March 2016. Therefore, in the present case, the applicant 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. On the basis of the information provided by the applicant, which accords with the information recorded in the primary decision and on the Department’s records, the Tribunal finds that the applicant’s last substantive visa was a TU Subclass 572 visa which expired on 11 April 2015. The applicant lodged this 457 application on 11 March 2016.Is criterion 3003 met? 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 and the applicant must meet Schedule 3 criteria, including 3004: cl.457.211(b)(ii).Is criterion 3004 met? 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. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his 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 able to satisfy the criteria or be granted the visa on the day he 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.

Decision

Reasons for decision

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.DECISION The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.Karen SynonMemberATTACHMENT - 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.Karen SynonMemberATTACHMENT - 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.