Reid (Migration) - [2017] AATA 753

Reid (Migration) [2017] AATA 753 (12 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr John James Reid
CASE NUMBER:  1608097
DIBP REFERENCE(S):  BCC2016/1251479
MEMBER:Danica Buljan
DATE:12 May 2017
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 12 May 2017 at 4:00pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Onshore application – No substantive visa
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, Part 457, Schedule 3, Item 3005, cl 457.211

CASES
HAQUE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUSAFFAIRS [2006] FMCA 55
Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
MINISTER OF IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS V KURTOVIC [1990] FCA 22
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V POLAT (1995) 57 FCR 98
Minister for Immigration and Citizenship v You [2008] FCA 241
Sapkota v Minister for Immigration and Border Protection [2014] FCCA 1285
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292
WANG V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS [1997] 71 FCR 386
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 17 May 2016 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 22 March 2016. 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 the applicant did not meet the requirements of item 3005 of Schedule 3 and, therefore, clause 457.211 of the Regulations. Specifically, the delegate found that, as the applicant had previously been granted a subclass 457 on the basis that he satisfied item 3004 of Schedule 3, he did not satisfy item 3005.
The applicant lodged an application for review with the Tribunal on 3 June 2016 and a copy of the primary decision was included with the application for review.[1]
[1] AAT Case file 1608097 (T1)
The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[2] D1 - Departmental file BCC2016/1251479, f.1-30
[3] T1 - AAT Case file 1608097, f.1-70
The applicant appeared before the Tribunal on 1 March 2017 and 6 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Holly Wales, the applicant’s partner.
At the second hearing on 6 April 2017 the Tribunal discussed the applicant’s movement records with him, including the implications these had for his current subclass 457 visa. As a result, on 10 April 2017 the Tribunal invited the applicant under section 359A of the Act to comment on / respond to the information set out in his departmental movement records.[4]
[4]T1, f.63-66
On 21 April 2017 the applicant requested an extension of time in which to provide his comments/response to the Tribunal on the basis that he had sought legal advice and needed additional time to collect relevant information.[5] On 24 April 2017 the Tribunal granted this request.[6]
[5]T1, f.67
[6]T1, f.68-69
On 9 May 2017 the applicant responded to the Tribunal invitation (dated 10 April 2017) by stating that he had no further information and would “respectfully abide by the Member’s decision.”[7]
[7]T1, f.70
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 applicant meets the requirements of clause 457.211. Relevantly to this matter, clause 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 clause 457.211 so long as the last substantive visa they held was not one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
Does the applicant satisfy the relevant Schedule 3 criteria?
Are criteria 3003 and 3005 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.
As set out in the primary decision record the applicant provided with his application for review[8] , the applicant was in Australia when he lodged his application for the subclass 457 visa on 22 March 2016. The applicant also confirmed this information at the Tribunal hearing on 1 March 2017. Therefore, the Tribunal finds that the applicant must meet the requirements of clause 457.211.
[8] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
The Tribunal also notes that in his subclass 457 visa application form the applicant stated that he held a bridging visa (WE) at the time of application.[9] The applicant also confirmed this information in his submission to the Tribunal on 7 February 2017[10], and during his oral evidence at the hearing on 1 March 2017. As a result, the Tribunal finds that the applicant did not hold a substantive visa at the time of application, and that he did not previously hold a Subclass 771 or special purpose visa.
[9]D1, f.5
[10]T1, f.23
In relation to the requirements of clause 457.211 the Tribunal observes that the applicant’s departmental movement records[11] indicate that he arrived in Australia on 14 February 2008 as the holder of a Working Holiday (Subclass 417) visa valid to 14 February 2009. However, these records also indicate that the applicant did not depart Australia on or before 14 February 2009 in accordance with the requirements of this visa.
[11]T1,f.15-16
The Tribunal further notes that on 18 August 2009 the applicant applied for a subclass 457 visa and that he was granted a bridging visa C on this date. Notably, the applicant had been in Australia without a substantive visa for approximately 6 months at that time. Accordingly, as this particular visa application was lodged after the applicant’s subclass 417 had expired on 14 February 2009 he was not the holder of a substantive visa when he lodged this particular visa application. As a result, the Regulations required the applicant to satisfy the requirements of item 3004 of Schedule 3 in order to be granted the subclass 457 visa.
Importantly, on 28 October 2009 the Department granted the applicant a subclass 457 visa (which is a substantive visa) on the basis that he satisfied item 3004 and the Schedule 3 criteria at that time. This visa was valid to 28 October 2011.
However, the applicant’s departmental movement records indicate that he was not granted another substantive visa on or before 28 October 2011. Accordingly, he became a person who did not hold a substantive visa after 28 October 2011.
The applicant gave oral evidence that he subsequently sought to apply for another subclass 457 visa in Australia. He also told the Tribunal that the Department advised him in late 2011 that he would need to go offshore to make this application, which he did.
The Tribunal notes that the departmental movement records confirm that the applicant was granted a bridging visa C on 22 December 2011, which was valid to 6 March 2012. They also indicate that the applicant departed Australia on 6 March 2012 and that whilst offshore he lodged an application for a subclass 457 visa on 16 March 2012. The applicant was then granted a subclass 457 on 16 March 2012 that was valid to 16 March 2016. As a result, the applicant returned to Australia on 22 March 2016 as the holder of a subclass 457 visa.
At the hearing on 6 April 2017 the Tribunal discussed the applicant’s movement records with him in depth, at which time he did not dispute the facts set out in these records. In addition, the Tribunal formally invited the applicant to comment upon the information contained in his movement records in its section 359A letter (dated 10 April 2017). Importantly, despite being allowed additional time in which to provide his comments/response to this information, the applicant did not dispute the facts set out in the departmental records in the response he provided to the Tribunal on 9 May 2017.
Accordingly, the Tribunal finds that, at the time of application on 22 March 2016, the applicant did not hold a substantive visa. This is because the applicant was last granted a substantive visa on 16 March 2012, being a subclass 457 visa, which was valid to 16 March 2016. As a result, the Tribunal finds that the applicant does not meet the requirements of subclause 457.211(a).
Consequently, in order to meet the requirements of clause 457.211 the applicant must meet the requirements of paragraphs 457.211(b)(i) and (ii) in subclause 457.211(b).
Given that the last substantive visa the applicant held prior to the lodgment of his application on 22 March 2016 was a subclass 457 visa, which is not a subclass 771(Transit) visa or a special purpose visa, the Tribunal finds that the applicant meets the requirements of paragraph 457.211(b)(i).
Paragraph 457.211(b)(ii) requires the applicant to satisfy Schedule 3 criteria 3003, 3004 and 3005.
In this case, based on the departmental records before it, the Tribunal finds that item 3003 of Schedule 3 does not apply to because he was the holder of a substantive visa after 1 September 2004.
To meet item 3005 the applicant must not have previously been granted a visa (or entry permit) on the basis of the satisfaction of any of the Schedule 3 criteria, or the criteria in Schedule 6 to the Migration (1993) Regulations, or regulation 35AA, or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.
Subregulation 2.03(2) provides that, if a criterion in Schedule 2 refers to a criterion in Schedule 3 by number, then that criterion must be satisfied by the applicant as if it were set out at length in the Schedule 2 criterion. Consequently, an applicant will not satisfy criterion 3005 if he or she has previously been granted a visa on the basis of satisfaction of any Schedule 2 criteria.[12]
[12] Sapkota v Minister for Immigration and Border Protection [2014] FCCA 1285 at [16].
Accordingly, given the evidence before it, the Tribunal finds that the applicant was previously granted a subclass 457 visa on 28 October 2009 on the basis of satisfying the criteria set out in Schedule 3. As a result, the Tribunal finds that the applicant does not satisfy item 3005(a) and item 3005 of Schedule 3 for the purposes of the current application for review.
The Tribunal has had regard to the applicant’s submission and oral evidence at both hearings regarding the circumstances that led to him being a person who did not hold a substantive visa on 22 March 2016.
Specifically, the applicant stated that the process of approving the sponsorship and nomination applications lodged by Lawson Delaney (his proposed sponsoring employer) had taken longer than either he or his employer had anticipated. He also stated that both he and his employer had believed that his subclass 457 visa was valid to June 2016 based on the advice his employer’s migration agent had provided. As a result, the applicant stated that when he checked his immigration status in March 2016 he was surprised to learn that his substantive visa had expired.
To support these claims the applicant submitted a copy of the departmental decision notifying Lawson Delaney on 5 June 2015 that its nomination of the applicant as a ‘Recruitment Consultant’ had been approved, as well as the decision record relating to the grant of the applicant’s bridging visa on 21 March 2016.[13] The applicant also provided emails dated 9 June 2015 and 21 March 2016 between him, his employer and the latter’s migration agent.
[13]T1, f.26-35
The Tribunal notes that the email dated 9 June 2015[14], which was forwarded to the applicant, attached a copy of the decision record regarding the grant of the nomination approval in his favour. This document also stated that the nomination approval relevantly ceased 12 months after the day on which it was approved.
[14]T1, f.25 reverse
In addition, the Tribunal observes that the email dated 21 March 2016[15] from the applicant’s employer to its relevant migration agent stated:
[The applicant] just spoke with immigration and has been told that his Visa expired last week. Per the attached, it is clear that it should not expire until 05 June 2016.
[15]T1, f.25
As a result, the Tribunal is satisfied that both the applicant and his employer incorrectly understood the contents of the nomination approval decision to mean that the applicant’s existing subclass 457 visa was valid until 5 June 2016, when it was only the nomination that was valid until this date.
The Tribunal therefore accepts that the applicant was genuinely surprised to learn on 21 March 2016 that his subclass 457 visa had ceased a week earlier. The Tribunal also does not dispute the applicant’s claim that, upon learning this, he promptly attended the offices of the Department on 21 March 2016, at which time he was granted a Bridging Visa E. Indeed, the Tribunal acknowledges that the applicant became aware of his immigration status because he was seeking in March 2016 to ensure that everything was in place for his new subclass 457 visa by 5 June 2016, in the erroneous belief that he had a valid subclass 457 visa until that date.
In the Tribunal’s view, it is particularly unfortunate in this case that the migration agent the applicant and his representative had engaged to assist them does not appear to have issued clearer instructions to the parties about the nomination approval in June 2015, including the fact that the applicant’s substantive subclass 457 would cease after 16 March 2016.
The Tribunal has also taken into account the applicant’s evidence that he had relied on the Department for advice about what he should do in these circumstances. As noted previously, the Tribunal also accepts that the applicant was genuinely surprised that his visa application was rejected. Given the evidence, it seems likely that the departmental advice the applicant was given in March 2016 did not take into account the applicant’s full immigration history, which included the fact that he had previously been granted a subclass 457 visa on 28 October 2009 on the basis of satisfying item 3004 of Schedule 3. The Tribunal acknowledges that this appears to have resulted in an unfortunate turn of events for the applicant.
However, the fact that a departmental officer may have given the applicant incorrect or misleading advice about the lodgment of his subclass 457 visa onshore in March 2016, unfortunately for the applicant does not provide a basis upon which the Tribunal can disregard the requirements of the legislation. This is because, as a general principle, misleading or incorrect advice by the Department and/or its officers does not give rise to an estoppel, or exempt an applicant from complying with statutory requirements.[16]
[16] Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990]FCA 22 at [12]; Minister for Immigration and Ethnic Affairs v Polat(1995) 57 FCR 98 (Davies, Whitlam and Branson JJ); Haque v Minister for Immigration and Multicultural and IndigenousAffairs [2006] FMCA 55; Wang v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 71 FCR 386
Finally, the Tribunal has considered the applicant’s personal circumstances at the time of its decision. In particular, the Tribunal has taken into account the fact that the applicant has been living in Australia for almost 10 years and that he is gainfully employed with Lawson Delaney as a senior recruitment consultant. In this role the applicant leads the technical, information technology and engineering sales division for Lawson Delaney because of his formal qualifications and engineering background in this field in the United Kingdom.
In addition, the Tribunal accepts that the applicant is in a committed, long-term relationship with an Australian citizen. Specifically, the applicant and Ms Wales presented as articulate, sincere and honest individuals who were committed to each other. The Tribunal accepts that the applicant has provided Ms Wales with financial support whilst she establishes her mobile florist business providing specialised services to corporate clients, and that she would find it difficult if the applicant could not remain in Australia.
The Tribunal has also taken into account that the parties have plans to purchase a home together and to start a family. The Tribunal can only express its hope that if the applicant lodges either an application for a subclass 457 visa offshore, a partner visa or some other application, that the Department processes any such application without undue delay.
However, for the purposes of the current application for review, the wording of clause 457.211 and item 3005 in Schedule 3 do not provide the Tribunal with any discretion to find in the applicant’s favour on the basis of these circumstances.
Accordingly, whilst the matters the applicant has raised may be relevant to the issue of possible Ministerial intervention under section 351 of the Act, they do not provide a basis for the Tribunal to find in the applicant’s favour in respect of item 3005 of Schedule 3 and clause 457.211.
CONCLUSION
As a result, given its findings in respect of item 3005(a), the Tribunal finds that the applicant does not meet the requirements of item 3005 of Schedule 3. Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 457.211(b)(ii) and subclause 457.211(b). As a result, the Tribunal finds that the applicant does not meet the requirements of clause 457.211.
Given these findings, the Tribunal has no alternative but to affirm the decision under review.
Other Matters
As noted above, the wording of item 3005 of Schedule 3 and clause 457.211 means that the Tribunal has no discretion to find in the applicant's favour on the basis of the circumstances he has put forward and, the Tribunal has no alternative but to affirm the decision under review.
The Tribunal has been not been given the legal power to waive mandatory criteria prescribed for this class of visa. The only person who is able to waive the criteria is the Minister where he believes it is in the public interest to do so. Section 351 of the Act states that he can only intervene once the Tribunal has made an unfavourable decision.
Although the applicant has not formally requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to section 351 of the Act, it has considered whether the circumstances in this case would mean it is appropriate to do so.
The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted because to do so would align with Australian community expectations.

However, not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who wish to remain permanently in Australia.
The Tribunal has therefore carefully considered whether the applicants' circumstances come within the policy guidelines set out in in PAM3 'Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)' for referral to the Minister for his intervention.
In this case, the Tribunal notes that the legislation (Schedule 3) has had the intended outcome, in terms of refusing a visa application in circumstances where an applicant has previously been granted a visa in circumstances where they were not the holder of a substantive visa.
Nevertheless, the Tribunal has some sympathy for the circumstances facing the applicant, his employer and his Australian partner, as there appears to have been a series of unfortunate misunderstandings that have led to the applicant’s current predicament.
However, the Tribunal also notes that the relevant guidelines indicate that it is not appropriate to refer a matter to the Minister where a person may be able to apply for a Partner visa onshore, or where they may have an application for a substantive visa (either onshore or offshore) with the Department.
Although the applicant indicated that he had sought legal advice about his immigration options, he has not informed the Tribunal regarding any particular pathway he might pursue in this regard.
Accordingly, given the limited evidence before it, whilst the Tribunal has considered the applicant's case and the Ministerial guidelines relating to the discretionary power set out in PAM3 'Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)', the Tribunal has decided not to refer the matter on the basis of the evidence that has been submitted to it.
The Tribunal notes that the applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Danica Buljan
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
457.211 If the applicant is in Australia at the time of application:
(a)the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or
(b)if the applicant does not hold a substantive visa at the time of application:
(i)the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and
(ii)the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.
Note Special purpose visa is defined in subsection 5 (1) of the Act
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.