Najeeb Kamil (Migration)

[2017] AATA 192

Najeeb Kamil (Migration) [2017] AATA 192 (3 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Najeeb Kamil

VISA APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1508006

DIBP REFERENCE(S):  BCC2015/613450

MEMBER:Miriam Holmes

DATE:3 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 February 2017 at 9:16am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Standard business sponsor stream – Subclass 457 – Jurisdiction issue – Applicant offshore – Secondary applicant not listed on application – Three year exclusion period – No compelling circumstances

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347, 348, 359AA
Migration Regulations 1994, Schedule 2, r 1.03, r 1.20, r 4.02, r 5.02(k), cl 457.325, cl 457.234, PIC 4014

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration 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, Mr Singh, applied for the visa on 25 February 2015 from offshore.

3. At the time the visa 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). In the present case, the visa applicant has applied for the visa on the basis that he is a dependent of the holder of a subclass 457 visa held by Ms S Kaur. Her subclass 457 visa was granted on 13 January 2014.

4. The delegate refused to grant the visa on 27 May 2015 on the basis that the visa applicant did not meet the requirement in cl.457.325 because the delegate was not satisfied that the applicant met Public Interest Criterion 4014.

5. The review applicant, Mr Kamil, appeared before the Tribunal on 12 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms S Kaur, the visa applicant’s wife.

6. The review applicant was represented in relation to the review by his registered migration agent, Mr U Mishra. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Jurisdiction

8. The first issue for consideration by the Tribunal is whether it has jurisdiction to consider the review application made by Mr Kamil. The Tribunal raised this issue at the hearing and gave the representative until 16 January 2017 to provide written submissions. The Tribunal received written submissions on 12 January 2017 and the representative submitted that the Tribunal does have jurisdiction.

9. The visa applicant was offshore when the visa application was made on 25 February 2015 and when the review application was made by Mr Kamil (as the sponsor).

10. The Tribunal’s jurisdiction arises under s.348 of the Act if an application is properly made under s.347 for review of a Part 5-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable and the circumstances in which they are reviewable. A decision to refuse a sub class 457 visa application made by a visa applicant is a Part 5-reviewable decision under s.338(9) if the applicant made the visa application while outside the migration zone, and the applicant was “sponsored” or “nominated” as required by a criterion for the grant of the visa (see r.4.02(4)(l)). For the reasons below, the Tribunal finds that the decision identified in the review application is reviewable in the circumstances of this case.

11. The visa application by Mr Singh was made on 25 February 2015 on the basis that he was the dependent of Mrs Kaur. Mrs Kaur was granted a subclass 457 visa on 13 January 2014. At the time of the visa grant Mrs Kaur was the subject of an approved nomination by Mr Kamil. During the visa application process, a letter dated 2 February 2015 from Mr Kamil of Waves Imports International  was provided to the Department. This letter stated that “we will extend our sponsorship” to include Mr Singh. There is no evidence available that Mr Kamil was ever listed in the original nomination application made by the sponsor in relation to Mrs Kaur.

12. The Tribunal had regard to the wording in r.4.02(4)(l) which states:

    (l)  a decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa to a non-citizen if:

    (i)  the non-citizen is outside Australia at the time of application; and

    (ii)  the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

    (A)  an Australian citizen; or

    (B)  a company that operates in the migration zone; or

    (C)  a partnership that operates in the migration zone; or

    (D)  the holder of a permanent visa: or

    (E)  a New Zealand citizen who holds a special category visa;

13. The Tribunal is satisfied that Mr Singh was outside Australia at the time of the application and therefore he meets the requirement in r.4.02(4)(l)(i). The Tribunal then considered the application of r.4.02(4)(l)(ii). In interpreting this requirement, the Tribunal also had regard to the reasoning in AAT Decision 1412960 and cl.457.234. The relevant aspect of cl.457.234 that applies to Mr Singh is cl.457.234(2)(a). For the reasons set out in AAT Decision 1412960, and after considering the wording of cl.457.234(2), the Tribunal concludes that it is not a criterion for the grant of a visa for a secondary visa applicant, such as Mr Singh, to be sponsored or nominated, where he was not listed in the nomination application. Therefore he does not meet the requirement in r.4.02(4)(l)(ii).

14. The issue then becomes whether Mr Singh must meet r.4.02(4)(l)(ii) for there to be a reviewable decision under r.4.02(4)(l) and s338(9). In AAT Decision 1412960, the Tribunal considered whether the Tribunal had jurisdiction in respect of an onshore secondary visa applicant. In that case, the Tribunal determined that there was a reviewable decision under s338(2), and that s.338(2)(d) did not need to be met by the secondary visa applicant as the Tribunal concluded that on the facts of that case (where the secondary visa applicant was not named in the nomination application) it was not a criterion for the grant of a visa to a secondary visa applicant that the secondary visa applicant was sponsored or nominated. The wording of s.338(2)(d) is different to the wording in r.4.02(4)(l)(ii), although both provisions (s.338(2) and r.4.02(4)(l)) list a set of various requirements for a decision to be considered a Part 5 -reviewable decision. The Tribunal considers that a consistent approach should be taken in relation to determining jurisdiction where there is no sponsorship or nomination criterion in relation to a subclass 457 secondary visa applicant, irrespective of whether they are offshore or onshore when they make the visa application. Therefore, the Tribunal determined that Mr Singh, the secondary visa applicant was not required to meet r.4.02(4)(l)(ii) and that there is a reviewable decision where the secondary visa applicant meets only r.4.02(4)(l)(i). For these reasons, the Tribunal is satisfied that there is a Part 5 - reviewable decision.

15. The Tribunal notes that only the sponsor or nominator has standing to make a review application (section 347 and r.5.02(k)) in respect of a reviewable decision in r.4.02(4)(l). Whilst there is no criterion that the secondary visa applicant in this case is sponsored or nominated, the Tribunal is satisfied there is a sponsor, Mr Kamil, with standing. The Tribunal notes that the definition of “sponsor” in r.1.20(1) does not apply to subclass 457 visas ( see r.1.20(4)). Section 337 of the Act states that “sponsored” includes being included in the nomination. In this case, the applicant was not included in the nomination. However, the Tribunal considers that there is a relevant sponsor, as cl.457.234(2)(a) requires the standard business sponsor for the primary applicant to agree in writing that the secondary visa applicant may be a “secondary sponsored person” in relation to the standard business sponsor. The definition of ‘standard business sponsor’ is set out in r.1.03, in conjunction with s.5(1). Mr Kamil meets the requirements in r.1.03 and s.5(1) at the time the review application was lodged on 12 June 2015, as he was approved as a standard business sponsor on 16 October 2012 until 16 October 2015. Further for the purposes of cl.457.234(2)(a) Mr Kamil was the standard business sponsor of the primary applicant, Mrs Kaur.

16. Therefore the Tribunal is satisfied that it has jurisdiction to consider the review application.

    PIC 4014

17. The issue in the present case is whether the visa applicant meets the requirements in PIC 4014 for the purposes of cl.457.325.

18. Clause 457.325 requires that a secondary visa applicant meets various public interest criteria, including PIC 4014. PIC 4014 provides that in certain circumstances, including where a person previously departed Australia on a Bridging (sub class 050) visa, there is a three year exclusion period before the person can apply for a visa to return to Australia. A copy of PIC 4014 is attached to his decision.

19. The Tribunal had regard to the Department’s movement records and the delegate’s decision and finds that:

    • On 4 April 2009 Harpreet Singh travelled to Australia on a student visa. The visa was valid until 15 March 2011;
    • On 4 March 2011 Harpreet Singh was granted a Bridging A visa which was in effect until 4 March 2013;
    • On 4 March 2013 Harpreet Singh was granted a Bridging B visa that was in effect to 25 April 2013;
    • On 28 June 2013 Harpreet Singh was granted a Bridging E visa  until 26 July 2013;
    • On 2 August 2013 Harpreet Singh was granted a Bridging E visa  until 30 August 2013;
    • On 30 August 2013 Harpreet Singh was granted a Bridging E visa  until 27 September 2013;
    • On 27 September 2013 Harpreet Singh was granted a Bridging E visa until 25 October 2013;
    • On 25 October 2013 Harpreet Singh was granted a Bridging E visa until 27 November 2013;
    • On 28 November 2013 Harpreet Singh was granted a Bridging E visa  until 31 January 2014;
    • On 31 January 2014 Harpreet Singh was granted a Bridging E visa  until 11 January 2015;
    • On 11 January 2015 Harpreet Singh departed Australia.

20. In accordance with the procedure in s.359AA the Tribunal invited the review applicant to comment on this information. After a short break for the review applicant to speak with his representative, Mr Kamil stated that he agreed with the Department’s information regarding Mr Singh’s migration history.

21. The Tribunal finds that:

    ·Mr Harpreet Singh last held a substantive visa on 15 March 2011.

    ·Mr Harpreet Singh left Australia on 11 January 2015 whilst the holder of a Bridging E visa granted on 31 January 2014.

    ·The last bridging E visa  held by Harpreet Singh was not granted within 28 days of his last substantive visa ceasing.

    ·The last bridging E visa held by Harpreet Singh was granted whilst he held another bridging visa but that other bridging visa was not granted whilst the applicant held a substantive visa or within 28 days of the substantive visa ceasing.

    ·On 25 February 2015 Harpreet Singh applied for a Temporary Business Entry (Class UC)(subclass 457) visa.

22. Therefore the Tribunal finds that the risk factor in PIC 4014(4) does apply to Mr Singh and that Mr Singh does not fall within the exclusions in PIC 4014(5). Consequently, as Mr Singh made an application on 25 February 2015 for a Temporary Business Entry (Class UC)(subclass 457) visa within three years of departing Australia on 11 January 2015, the visa applicant is not eligible for the subclass 457 visa, unless he meets the requirement in PIC 4014(1)(b).

23. The Tribunal considered whether Mr Singh meets the requirement in PIC 4014(1)(b). PIC 4014(1)(b) provides that the applicant may meet the requirements in PIC 4014 if there are compelling circumstances that affect the interests of Australia, or there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.

24. The terms “compelling circumstances that affect the interests of Australia” and “compassionate or compelling circumstances that affect the interests of Australian citizens”  are not defined in the Regulations. The Tribunal had regard to the policy statements set out in the Procedures Advice Manual (PAM 3) regarding when the waiver in PIC 4014(1)(b) may be applied and the various examples given as to what may constitute compelling circumstances that affect the interests of Australia, or constitute compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa. However, The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

25. The policy regarding PIC 4014(1)(b) includes the following information  -

    Compelling circumstances

    Affecting the interests of Australia

    There may be compelling circumstances affecting the interests of Australia if:

    • Australia’s trade or business opportunities would be adversely affected were the person not granted the visa
    • Australia’s relationship with a foreign government would be damaged were the person not granted the visa or
    • Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

    …

    Affecting interests of an Australian citizen/resident

    There may be compelling circumstances affecting the interests of such persons if not granting the visa would mean that:

    • a business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business
    • …

26. At the hearing, Mr Kamil gave the following information in relation to PIC 4014(1)(b). Mr Kamil operates a business known as Waves Imports International. Mr Kamil is the owner operator and director of the business.  The business has been operating for 15 years. Initially the business operated by importing Bollywood movie DVDs from China. However, in the last 5 years the business has changed direction, now it produces multimedia publications for Bollywood movies, other marketing material and printing material, primarily in the Hindi language. After the change in direction, Mr Kamil established a production house in Melbourne with printers and other relevant facilities.  The business has employed up to 4 to 5 employees (who were mostly part time) at any one time over the years. The business currently operates with Mr Kamil, and two full time staff, including Ms Kaur (the wife of the visa applicant) and a part time staff member. Mr Kamil is the owner of the business and he is responsible for the financial aspects of the business, client liaison, marketing and attracting new clients. Mr Kamil works full time. The two full time staff (including Ms Kaur) are responsible of preparing the art work, including designs for advertisements and marketing materials for Indian restaurants and movies and other businesses. Ms Kaur also assists in managing queries from customers and liaising with new clients. Ms Kaur has worked in the business for the last 5 years. She initially worked part time (10 – 15 hours per week) and commenced working full time about 2 or 2.5 years ago. Ms Kaur commenced working with him after he advertised the position.  Ms Kaur gave similar evidence that she commenced with the company in 2011. The other full time staff member is also responsible for art work (like Ms Kaur) and is responsible for printing. This employee is also the holder of a sc457 visa. The part time staff member is responsible for the printing aspects of the business.    

27. In response to the Department policy described above, Mr Kamil stated that the business will be affected if his employee, Ms Kaur, is affected by her husband not being in Australia. He stated that if Ms Kaur is not present in Australia then his business will be affected.  The representative suggested the business might close down if Ms Kaur leaves, however Mr Kamil gave evidence that if Ms Kaur left the business then he would look for a new employee. He stated that it will cost him time and money to identify a replacement employee. He said it would affect the costs of the business and he could lose clients and would not be able to fill orders on time, although he would not close the business. The Tribunal noted during the hearing, that there are other Hindi speaking persons in Australia who may be able to fill the position and Mr Kamil replied that not everyone has experience in graphic design and most can only work part time.

28. The Tribunal considered whether the impact on Mr Kamil’s business, if Ms Kaur leaves the business, constitutes compelling circumstances that affect the interests of Australia, or constitutes compassionate or compelling circumstances that affect the interests of  an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa. Mr Kamil has operated the business for 15 years and had numerous employees in the period. It is only in recent years that Mr Kamil has changed the nature of the business and Mr Kamil has another employee who undertakes similar duties to Mrs Kaur. The Tribunal considers that an employee leaving their employment in a business is a common occurrence in operating a business and is something all business managers and owners are required to manage. In this case, the business has another employee undertaking similar duties, so the business will still have a person with the relevant skills to undertake the relevant duties. Further, the Tribunal did not consider Mrs Kaur’s skills unique or exceptional and that there are other Hindi speaking persons in Australia who may be available to undertake the work. Mr Kamil expressed concern they may only work part time, although the Tribunal notes that Mrs Kaur initially worked in a part time capacity and it may be that the business can recruit 2 part time persons to undertake the work.  After consideration of the evidence available the Tribunal is not satisfied that the impact on Mr Kamil’s business, if Ms Kaur leaves the business, constitutes compelling circumstances that affects the interests of Australia, or constitutes compassionate or compelling circumstances that affects the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.

29. Ms Kaur (the visa applicant’s wife) also gave evidence to the Tribunal. She stated that she married Mr Singh in January 2013. He left Australia on the advice of the representative. It was intended to be a new beginning. He applied for a sc 457 visa (as a secondary applicant) from offshore on the advice of the representative. At the time he left Mr Singh did not know about PIC 4014 and the three year exclusion period. It will be two years in January 2017 that Mr Singh will have been in India, outside Australia. Ms Kaur stated that she does not want to have to choose between her career and her family (her husband). She is happy with her career in Australia but wants her husband in Australia to give her support.  The Tribunal asked Ms Kaur why she cannot return to India. Ms Kaur replied that if Mr Singh does not get the visa she will have to make the decision. She was in India when he returned to India in January 2015 and then she returned to Australia on 3 February 2015. As discussed at the hearing, Mrs Kaur is not an Australian citizen, or an Australian permanent resident or eligible New Zealand citizen and the Tribunal is not satisfied that her and her husband’s personal circumstances business constitutes compelling circumstances that affect the interests of Australia, or constitutes compassionate or compelling circumstances that affects the interests of  an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.

1. The Tribunal has considered the information but is not satisfied that either singularly or cumulatively that the circumstances constitute compelling circumstances that affect the interests of Australia, or constitute compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, to justify the granting of the visa. Accordingly, the Tribunal was not satisfied that the requirements of PIC 4014(1)(b) are met.

2. Therefore the Tribunal is not satisfied that the visa applicant meets the requirements in PIC 4014 and consequently the visa applicant does not meet the requirement in cl.457.325.

3. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

   DECISION

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

   Miriam Holmes
   Senior Member

   
   

   ATTACHMENT  -  PIC 4014

   4014

   (1)  If the applicant is affected by the risk factor specified in subclause (4):

   (a)  the application is made more than 3 years after the departure of the person from  Australia referred to in that subclause; or

   (b)  the Minister is satisfied that, in the particular case:

   (i)  compelling circumstances that affect the interests of Australia; or

   (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the departure.

   (4)  Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

   (a)  an unlawful non-citizen; or

   (b)  the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

   (5)  Subclause (4) does not to apply to a person if:

   (a)  the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or

   (b)  a bridging visa held by the person at the time of departure was granted:

   (i)  within 28 days after a substantive visa held by the person ceased to be in effect; or

   (ii)  while the person held another bridging visa granted:

   (A)  while the person held a substantive visa; or

   (B)  within 28 days after a substantive visa held by the person ceased to be in effect.