New Hampton Pty Ltd (Migration)

[2020] AATA 2291

New Hampton Pty Ltd (Migration) [2020] AATA 2291 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  New Hampton Pty Ltd

VISA APPLICANT:  Mr Lok Bahadur Chhetri

CASE NUMBER:  1833164

DIBP REFERENCE(S):  BCC2017/4897799

MEMBER:Bridget Cullen

DATE:25 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 25 May 2020 at 1:35pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – late response to s 359A invitation – not entitled to appear before the Tribunal – not holder of substantive visa at time of application – Schedule 3 criteria – factors beyond applicant’s control – need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.211, 457.221A; Schedule 3, Criterion 3004

CASES
Hasran v MIAC [2010] FCAFC 40

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 22 October 2018 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 21 December 2017. 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 the visa applicant did not meet cl.457.211 of Schedule 2 to the Regulations because at the time of the application was lodged, the applicant did not hold a substantive visa.

4. On 18 February 2020 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information before the Tribunal was that the applicant applied for the visa off shore on 21 December 2017, and onshore at the time the decision was made (on 22 October 2018), and that at the time the application was lodged, the applicant had last held a substantive visa on 30 August 2016. The information was relevant as one of the requirements for the grant of the Subclass 457 visa is that if the visa applicant was outside Australia at the time of the application but inside Australia at the time of the decision, and did not hold a substantive visa at the time of decision, then the applicant must satisfy Schedule 3 criteria, which relevantly includes 3004.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 3 March 2020 (and 10 March 2020 following the Tribunal granting an extension of time to respond), the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

7. The review applicant was represented in relation to the review by its registered migration agent, Komal Khatiwada of Shamser Thapa & Associates (MARN 0853554).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets cl.457.221A of Schedule 2 to the Regulations.

   Does the applicant satisfy the relevant Schedule 3 criteria?

10. Relevantly to this matter, for visa applications made on or after 14 September 2009, cl.457.221A requires that an applicant who is outside Australia at the time of application but in Australia at the time of decision must either at that time hold a substantive visa other than a Subclass 771 or special purpose visa, or if not the holder of a substantive visa meet specified requirements. These are that the last held a substantive visa was not a Subclass 771 or special purpose visa and the Schedule 3 criteria 3003, 3004 and 3005 are met. These criteria are extracted in the attachment to this decision.

11. In the present case, the applicant did not hold a substantive visa at the time of decision, and did not previously hold a Subclass 771 or special purpose visa.

    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.

    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 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.

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 or she 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 visa applicant last held a substantive visa on 30 August 2016 (a TU-573 – Student visa). The visa applicant applied for the visa whilst offshore, on 21 December 2017, and was onshore at the time the Delegate made their decision on 22 October 2018.

17. The Tribunal wrote about the above to the applicant pursuant to s.359A on 18 February 2020, with a due date of 3 March 2020. On 3 March 2020, the representative wrote to the Tribunal, requesting an extension, and on 4 March 2020, the Tribunal wrote back granting an extension until 10 March 2020.

18. The Representative responded to the s.359A letter on 11 March 2020.

19. The response includes a letter from the review applicant asserting that the visa applicant is a valued and skilled chef and that “The Department did not grant him the visa because he was trapped into bridging visa at that time.”  Further, the letter says that the visa applicant is willing to transfer offshore to “facilitate positive outcome for his visa”.  However, the review applicant does not address the substantive point, explaining why the visa applicant did not leave between the time he last held a substantive visa, and why he instead remained in Australia on a series of bridging visas. 

20. There is no information before the Tribunal explaining how there were factors outside the visa applicant’s control, or compelling reasons for granting the visa. Although the visa applicant was subject to an approved nomination, the Tribunal must have regard to all of the criteria, including cl.457.221A.  The expressed desire of the review applicant to employ the visa applicant does not amount to compelling circumstances.

21. There is simply no information explaining the reasons that the visa applicant needed to remain in Australia on a bridging visa for a lengthy period of time.

22. Accordingly, the applicant does not satisfy criterion 3004.

23. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl.457.221A.

24. 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

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

    Bridget Cullen
    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.