O Rourke (Migration)

[2018] AATA 1569

O Rourke (Migration) [2018] AATA 1569 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dereck Thomas O Rourke

CASE NUMBER:  1708377

DIBP REFERENCE(S):  BCC2015/3842972

MEMBER:Ian Berry

DATE:16 April 2018

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 16 April 2018 at 3:33pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Whether the applicant satisfies Special Return Criterion 5001 – Applicant’s previous visa cancelled under s. 501 – Applicant did not respond to requests for information – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.225, 457.324, Schedule 5, Special Return Criteria 5001, 5002, 5010

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 3 April 2017 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 13 December 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).

3. The delegate refused to grant the visa on the basis that cl.457.324 was not met because the applicant, when requested to do so, provided no evidence of sponsorship.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant had breached visa Special Return Criterion 5001. Clause 457.225 of Schedule 2 to the Regulations provides for the applicant to have satisfied Special Return Criteria 5001, 5002 and 5010.

   Background

6. The applicant is a Northern Ireland citizen who entered Australia on 7 January 2009 to work under the TZ417 visa scheme. The applicant and his partner, while both from Northern Ireland, met in Australia and commenced living together.

7. The partner’s 457 visa was granted on 14 January 2015.  

8. The applicant applied for his 457 visa on 12 February 2016. The applicant’s partner’s sponsor agreed to sponsor the applicant.

9. By letter from the sponsor dated 26 February 2016, that sponsorship was withdrawn.

10. The Departmental file records a Magistrates Court record of there being eight charges against the applicant. These charges  related to offences under the Drugs Misuse Act (Queensland) ranging from trafficking, supplying, producing, and possession of dangerous drugs including permitting the use of a place to possession of property suspected of being the proceeds of an offence. These charges were mentioned in the Brisbane Magistrates Court on 6 January 2016. He surrendered his passport and was given bail.

11. In the meantime, the Department’s letter of 1 February 2017 requested more information, in particular, an Australian Federal Police clearance National Police Check. The information must be provided in a time period of 28 days from the letter deemed to be received by him.

12. The Departmental file does not indicate the date it received information of the alleged offences of the applicant.

13. In the light of the alleged offences and of the applicant still continuing to be on bail set the matter for hearing. On 6 December 2017 at 1pm, the hearing date and time passed without an appearance from the applicant.

14. On 2 February 2018, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information about the alleged offences the full details of which were set out in the letter.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 16 February 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information 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.

16. The review applicant has not provided the information 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 information.

17. The applicant did not respond.

18. The Tribunal contacted the Queensland Police Service to enquire whether the offences were ongoing.

19. On 23 February 2018, a subpoena was directed to the Commissioner of Police. On 2 March 2018, the Commissioner’s office responded advising the matters had been dealt within the Holland Park Magistrates Court, Brisbane Magistrates Court and the Supreme Court of Queensland. Convictions were recorded in all courts except the Brisbane Magistrates Court where the first offence was determined with a plea and no conviction being recorded.

20. The applicant was sentenced to 12 months imprisonment, with a parole date set at 16 December 2017.

21. Movement details relating to this applicant confirm his departure from Australia on 15 December 2018.

22. On 13 March 2018, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide information, and to comment about the cancellation of his Bridging Visa pursuant to section 501 of the Migration Act on 20 July 2017 the full details of which were set out in the letter.

23. The invitation was sent to the last address provided in connection with the review and advised that, if the information and or comments were not provided in writing by 27 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information or the applicant’s 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.

24. The review applicant has not provided the information 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 information.

25. The applicant did not respond to the Tribunal’s letter.

26. Accordingly, cl.457.225 is not met.

27. Therefore cl. 457.22 is not met.

28. 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.

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

    Ian Berry
    Member