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

1. 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).

2. 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).

3. 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.

4. 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.

5. The applicant was represented in relation to the review by his registered migration agent.  She did not attend the 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 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?

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 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

9. 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.

10. 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.

11. 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?

12. 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?

13. 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.

14. 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.

15. 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.

16. The Tribunal explained to the applicant that each of the relevant subparagraphs of Criterion 3004 must be satisfied for it to make a favourable decision.

17. The visa application was lodged on the basis of the applicant’s proposed employment with Grandway Management Pty Ltd for the position of Café or Restaurant Manager.

    Would the applicant otherwise qualify but for Schedule 3 criteria - cl. 3004(f)?

18. On 17 December 2018 the Tribunal wrote to the applicant, via his registered migration agent, in accordance with s.359A of the Act inviting him to comment on or respond to information that he appears not to be able to satisfy the mandatory Schedule 3 Criterion 3004(f)(i) because he would not have been entitled to be granted a Subclass 457 visa if he had applied for it on the day when he last held a substantive visa, that is 11 April 2015, because the nomination in respect of the applicant was not made until 10 March 2016.  Comments or a response were invited in writing by 31 December 2018.

19. On 28 December 2018 a copy of a statutory declaration dated 14 May 2016[1] was provided.  Relevantly the applicant states:

    [1] This being the same statutory declaration that was provided to the department.

    The factors that caused me to become a person without a substantive visa and the reasons why these factors were being your control

    I lodged a partner visa application on 09 April 2015 with the sponsorship of my exclusive partner, an Australian citizen.  I made a valid application and was granted a Bridging A visa pending a decision on the application.  In January 2016, I discovered that my partner, whom I trusted and was exclusively involved with, had been unfaithful and she did not inform me of her affair with another person.  After I confronted her, our relationship broke down and we were no longer a couple.  As a result, my former partner informed DIBP of the Change of Circumstances with our relationship and withdrew her sponsorship.

    I have substantially complied with the conditions on your previous visa

    I complied with all the conditions of my previous visas, namely my Working Holiday and Student visas.  I met all the course requirements and whether I complied with the conditions of my previous visas have ever been in question at the time of making the Partner visa application.

    I intend to comply with the conditions on this visa, should it be granted

    I will comply with the conditions of my 457 visa, should it be granted.  My record of compliance as the holder of my Working Holiday and Student visa is testament to m y record of visa compliance.

    The compelling reasons that exist to grant you a visa

    I had no control over the breakup of my relationship, as I was committed to my former partner and it was devastating to learn she had been unfaithful and the relationship has to end.  I had made a long-term commitment to my former partner that she did not reciprocate and the grant of Partner (Provisional) visa was solely reliant on our continuing and genuine relationship.  This Change of Circumstances was not my doing and a compelling reason confirming I had no control over the demise of my relationship and as a consequence the refusal of my Partner visa application, as sponsorship had been withdrawn.

    Grandway Management Pty Ltd, trading as The Rocks, Mornington, is a reputable Australia (sic) business, would be impacted if my visa was not granted.  I have an important staff member for a number of years to date and attempting to fill the critical vacancy now, in a regional area is very difficult, which is why they wish to sponsor me.  It is particularly difficult recruiting qualified, experienced and reliable staff in the hospitality industry.  Due to increased demand and turnover from the workforce, the hospitality industry has for some time experienced a shortage of skilled workers.  Chefs, Cooks and Managers rate the most difficult positions to fill.  This is predicted to continue with these skilled workers to represent the greater shortfalls for businesses.  As such, if my visa is not granted, Grandway Management Pty Ltd would have a business critical vacancy which they would find difficult to fill due to the skill shortages in the industry.

20. During the hearing the Tribunal explained the requirements of Schedule 3004(f) and noted that although it had sent him a letter inviting him to respond or comment on information relevant to this criteria he had not done so, only providing the statutory declaration previously provided to the department in May 2016 that did not address this requirement.

21. Invited to expand on his employment at ‘The Rocks’, the nomination and 457 application the applicant said he started working at Grandway Management ‘The Rocks’ on 2 or 4 September 2015 and was still working there up until December last year when he ceased working there, taking leave due to stress.  Since December 2018 he has been doing casual shifts at a café near Mornington.  The applicant agreed he was not working at ‘The Rocks’ in the nominated occupation at the time his last substantive visa ceased but said he was working for the same employer in a different business;’D.O.C’, from September 2013.  He decided he needed experience in Australian business management.

22. Asked if he understood the issue the Tribunal was considering the applicant said yes.  Invited to make any additional submissions or comments the applicant said this was one of 2 options his migration agent gave him; to apply offshore or onshore and because he was onshore at the time he decided to apply here.  He has not applied for any other visa since this application.

23. 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 11 April 2015.

24. The application of cl.3004(f)(i) was the subject of judicial consideration in Quan v MIMAC [2013] FCCA 1254 ('Quan'). In that case, the Tribunal (differently constituted) had found that the applicant would not have been entitled to a Subclass 457 visa when she last 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 applicant specify the employer by whom they 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 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.

25. Relevantly, 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]).

26. The Court found that 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.  As such, it was not necessary for the Tribunal to consider whether there were compelling reasons for granting the visa pursuant to cl.3004(d).

27. In the present case, the applicant confirmed in his oral evidence that a nomination application in respect of him for the occupation of Café or Restaurant Manager was not lodged until 10 March 2016 which was some 10 months after his student visa expired on 11 April 2015.  Indeed his evidence was that commenced employment with Grandway Management Pty Ltd at ‘The Rocks’ on 3 September 2015, over 5 months after his student visa expired.  Given these facts the applicant would have been unable to specify a proposed employer at the relevant time, being the time his last substantive visa ceased.  It follows that he would have been unable to satisfy the requirements for making a valid 457 application in April 2015.

28. While the applicant contended that he was employed by the same employer, albeit at a different business, no evidence was given or is available to the Tribunal that a nomination in respect of the applicant was ever lodged or approved by this employer prior to the one lodged on 10 March 2016.

29. It is therefore not disputed that on the day when the applicant’s last substantive visa expired no nomination in respect of him had been lodged or approved.  Having regard to the reasoning in Quan, the applicant was not entitled to be granted a visa of the class applied for if he had applied for the visa on the day when he last held a substantive visa given that he was not identified in a nomination lodged by a standard business sponsor.  He therefore does not meet cl.3004(f)(i).

30. As there is no evidence that the visa applicant entered Australia unlawfully, cl.3004(f)(ii) does not apply.  It follows that the visa applicant does not meet cl.3004(f).

31. Accordingly, the applicant does not satisfy criterion 3004 for the purposes of cl.457.211.  Given these findings, it is not necessary to consider the applicant’s claims and evidence in relation to the remaining criteria under 3004 or any of the 3005 criteria.

32. 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

33. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Karen Synon

    
    

    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.