Sadranu (Migration)

Sadranu (Migration) [2017] AATA 558 (20 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr AISAKE ANTHONY SADRANU                   Mr AISAKE ANTHONY SADRANU
Miss MELAIA VUGONA SADRANU
Miss MILIKA RADALAWA SADRANU
Mrs MONIKA DITUKANA SADRANU
CASE NUMBER:  1515307
DIBP REFERENCE(S):  BCC2015/1206455
MEMBER:D. Dimitriadis
DATE:20 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 20 April 2017 at 5:11pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – No substantive visa – Failed to lodge 457 visa before cessation of previous substantive visa – Employer’s error – No compelling reasons – Factors within applicant’s control
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1, Item 1223A(3)(d), r 2.61, r 5.19(4), Schedule 2, cl 457.211, cl 457.223(4)(a), Schedule 3, Criterion 3004
CASES

Montero v Minister for Immigration & Anor [2014 FCCA 946]
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
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 22 October 2015 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 24 April 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.211 because the applicant did not satisfy Schedule 3 criterion 3004.
The applicant applied for review with the Tribunal and provided a copy of the delegate’s decision record to the Tribunal.
The applicant appeared before the Tribunal on 7 December 2016 to give evidence and present arguments. The interpreter informed the Tribunal that he knew the applicant and had actually provided a character reference for the applicant for this case. The Tribunal decided to adjourn the hearing and arrange for a different interpreter.
The applicant appeared before the Tribunal on 30 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded 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 Schedule 3 criterion 3004.
Does the applicant satisfy the relevant Schedule 3 criteria?
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 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.
Schedule 3 criteria 3003 and 3005 are not relevant in this case.
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.
Is criterion 3004 met?
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.
Criterion 3004 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. 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; that the applicant intends to comply with any conditions of the visa; and that, 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.
The records of the Department of Immigration (the Department) indicate that the applicant’s last substantive visa was a Subclass 457 (Class UC) visa which was granted on 22 March 2011 and ceased on 22 March 2015. The applicant provided a copy of the delegate’s decision record to the Tribunal at the time he lodged the application for review and it confirms that the applicant’s Subclass 457 visa ceased on 22 March 2015.
In the present case, the applicant did not hold a substantive visa at the time of making the visa application on 24 April 2015. His last substantive visa was a Subclass 457 visa which ceased on 22 March 2015. The applicant did not apply for the Subclass 457 visa (the subject of this review) until 24 April 2015. Therefore at the time the applicant applied for a Subclass 457 visa, he did not hold a substantive visa.
The Tribunal is satisfied that the applicant ceased to hold a substantive visa on or after 1 September 1994. The applicant meets Schedule 3 criterion 3004(a). The applicant therefore must meet Schedule 3 criterion 3004(c) – (h).
The Tribunal will firstly consider whether the applicant satisfies Schedule 3 criterion 3004(c) which requires that the applicant is not the holder of a substantive visa because of factors beyond his control.
The application for a Subclass 457 visa (the subject of this review) was made on 24 April 2015, in connection with a related nomination made by South Pacific Engineering Pty Ltd which was approved by the Department on 29 May 2015. One of the requirements for the grant of a Subclass 457 visa is that an applicant is the subject of a current approved nomination: cl.457.223(4)(a).
The applicant’s statement dated 8 October 2015
The applicant provided a statement to the Department and stated that his first Subclass 457 visa was granted on 22 March 2011 and his family and he entered Australia on 5 May 2011. The applicant has been working for the employer since then. The employer was satisfied with the applicant’s skills and professional attitude and agreed to continue the applicant’s employment for permanent residency before his 457 visa expired.
The applicant stated that he started reminding his employer to proceed with his ENS application in January 2015, mainly by telephone, because his employer was really busy and was always on business trips. The applicant contacted his employer many times in relation to his further visa application but his employer was really busy and asked the applicant to wait. The employer told the applicant that the application was lodged on 10 February 2015 and the applicant would not need to worry about it. The applicant trusted his employer because he was the person who dealt with the whole process of the previous 457 visa application and everything was smooth without any problems.
The applicant stated that on 1 April 2015 his employer called and said that there was something wrong with the applicant’s visa application and they organised a meeting on 10 April 2015 because the employer was on a business trip. The employer told the applicant that he had received an acknowledgment letter for the ENS nomination application on 31 March 2015 from the Department but the applicant’s ENS visa application “could not go through via online system.”
The applicant did not have much knowledge about the nomination or the visa application but he realised that something had gone wrong. He discussed with his employer who advised him to visit Immigration the next working day. He went to the Department on Monday 13 April 2015 and was told that he was not holding a substantive visa and all of his family members were “illegal” after 22 March 2015. The applicant was granted a Bridging E visa. He then went to a migration agent and learned that he could not lodge his ENS application so he decided to renew his 457 visa. His employer agreed with the applicant’s decision and the applicant lodged the visa application on 24 April 2015.
The applicant provided to the Department a reference letter dated 21 April 2015 from Mr Noel Lal of South Pacific Engineering Pty Ltd.
The representative provided a letter to the Tribunal stating that, although the applicant was aware of his visa expiry date, he was not in control of his visa matter.
The representative provided a letter dated 8 November 2016 from Ravinesh Pratap who stated that on 14 April 2015 he called Mr Noel Lal, the director of SPE (South Pacific Engineering), and asked him about the applicant’s visa extension and Mr Lal stated that the Subclass 457 visa was to expire in May 2015. Mr Pratap stated that, in light of this reply and the fact that the applicant was not attending work, he told Ian Holmes of his concerns about the applicant’s situation. Mr Pratap stated that he returned the applicant’s tools to the applicant that evening and told him, in the presence of Ian Holmes, the conversation with Mr Lal. The applicant told Mr Pratap that Mr Lal had overlooked the visa expiry with the arrival date which was on 5 May 2011 whereas the expiry was on 22 March 2015.
The applicant also provided a letter dated 8 November 2016 from Mr Ian Homes who confirmed that on 14 April 2015 Mr Pratap, the foreman, told him after his conversation with Mr Lal, that the applicant’s Subclass 457 visa was to expire in May 2015. That evening Mr Holmes heard the applicant tell Mr Pratap that Mr Noel Lal had overlooked the visa expiry date which was 22 March 2015. The applicant’s arrival date was 5 May 2011.
The Tribunal hearing on 30 January 2017
The Tribunal informed the applicant of the relevant requirements of Schedule 3 criterion 3004. The applicant agreed that his last substantive visa was a Subclass 457 visa which ceased on 22 March 2015 and he applied for a further Subclass 457 visa on 24 April 2015.
The applicant stated that he works as an electrician. He has work rights on his Bridging visa E which he currently holds. He can work anywhere in Australia without restrictions. He is currently employed by South Pacific Engineering that sponsored him. He works full-time and has worked for this company since 2011.
The applicant stated that from 2011 he had to apply for another visa when his visa expired. He had started advising his employer well in advance that his visa was going to expire on 22 March 2015. They only held telephone conversations because the employer was away most of the time on business trips. There were three of them in the same situation but he was the only one affected because of the late application. The other two got the visas. The applicant was the only one who was barred by the system. When the applicant rang the employer after this happened, he told the applicant not to worry and he would come and fix the visa situation. That is why the applicant continued working because of the financial burden on his family, the children’s school fees and the daily living arrangements. The applicant stated that it was beyond his control because the failure of the system did not allow his visa application. The first application went through ENS (Employer Nomination Scheme) and the second application was for the Subclass 457 visa. The applicant stated that the Employer Nomination Scheme application was lodged on 10 February by the employer.
The applicant stated that the system told him that he was without a substantive visa. The Tribunal informed the applicant that the nomination application for the ENS appears to have been approved by the Department. The applicant stated that he did not apply for any visa because the employer was going to do everything.
The applicant confirmed that he was aware that his employer lodged a nomination application under ENS. The applicant was given a copy of the nomination. The Tribunal informed the applicant that it is a permanent visa that he was nominated for and asked if he considered going offshore to Fiji and applying for the visa there. The applicant stated that he did not consider applying for the visa offshore because his employer said he was going to do all the visa matters. The Tribunal informed the applicant that he has left everything to the employer but the Tribunal has to decide whether it was beyond the applicant’s control that he was not the holder of a substantive visa. The Tribunal informed the applicant that it would consider whether there was anything he could have done so that he had applied for the visa within time. The Tribunal asked the applicant if he could have rung the Department and made an enquiry there. The applicant stated that the employer, Mr Noel Lal, would handle step 1 and 2 and the applicant would handle step 3.
The Tribunal informed the applicant that he could have gone to see a migration agent or the Department and made enquiries. The applicant stated that he was relying on the employer’s words that he would fix everything. The Tribunal informed the applicant that it may not be satisfied that it was beyond his control. The applicant stated that he relied on his words and when the ENS failed, he asked the applicant to go for 457. The applicant rang him at the time and he was in Tasmania. His words were not to worry and he would put the applicant back on a 457 visa because of the failure in the first place.
The Tribunal informed the applicant that it would consider the evidence but it may not accept that it was beyond his control. The Tribunal brought to the applicant's attention that there was only a short statement by Mr Lal provided to the Department. The applicant stated that this was the only statement provided and it was like a reference letter. There is not a more recent one than that. Mr Lal is still the Managing Director there.
The applicant stated that he was going by his employer’s word that he would fix everything and for the applicant to continue working. The applicant believes that the employer misinterpreted the date of the applicant’s arrival with the date of the visa expiry date.
The applicant stated that he communicated with his employer in writing. He sent two emails in 2014 to remind the employer of the applicant’s situation. The applicant knew that his visa was running out on 22 March 2015 and he started ringing the employer from January 2015 since he was on a lot of business trips. The applicant wrote in his email about his situation regarding his children. The applicant stated that he asked an Immigration officer at an expo at the Town Hall and he said that after two years the applicant can apply for permanent ENS 186. Since then he has been reminding his employer.
The Tribunal informed the applicant that it has to consider whether there are compelling reasons for granting the visa. The applicant stated that since leaving Fiji, through the hardships and difficulties he faced in Fiji personally, he had to find a way out. When he arrived five years ago, he saw the Subclass 457 visa as the way out of the situation he was in. The applicant stated that his wife works full-time and she has been full-time since 2013.
The Tribunal asked the applicant why he did not go and speak with the Department before his visa ran out or why he did not speak with a migration agent. The applicant stated that part of his work requirements is to go interstate and a lot of the time he is outside Sydney. Most of his communication with the Managing Director was over the telephone.
The Tribunal brought to the applicant's attention that he and his wife had full-time jobs in 2013 and 2014, they were both earning money and they could have followed up the matter of the visas personally. The applicant stated that this was the promise given to him in 2011 from Fiji for him not to worry about applying for permanent residency. The applicant was totally reliant on that promise which he kept even after he arrived in Australia.
The applicant stated that the employer told him not to worry about applying for permanent residency. The employer told the applicant that all he had to do was work and the employer would fix everything, the ENS application and the visa application. The Tribunal brought to the applicant's attention that he is the one applying for the visa for himself, his wife and his three children. The applicant stated that he was totally relying on his word that all the applications will go through the employer.
The applicant stated that he is glad that his children have received an education here. The standard that they achieved in Australia, they will not achieve back home. His youngest son is in year 12. His daughter finished the HSC in 2015 and graduated in a talent development program. She has been invited to a lot of communities to show her talent. She is a singer. It is run by 2GB radio station and she was in the schools spectacular. His oldest child, his other daughter, is working in aged care. She has been working for about 18 months. The Tribunal informed the applicant that she may not be a member of the family unit if she is not dependent on the applicant. The applicant stated that they all live together and she is dependent on them for a lot of things. She is looking forward to doing other courses as well.
The applicant stated that there are compelling reasons in terms of his Bridging E visa. He took his family’s visas seriously and did not mean to breach any visa conditions. There was not much that he could do without his employer’s support and it was beyond the applicant’s control. The applicant stated that he has been working very hard since he started working in the nominated occupation. He is important for the business and his professional skill is critical for the business. He has travelled around Australia completing assigned projects and he needs to continue his employment with his sponsor to support his children’s education and his family’s life in Australia.
The applicant stated that there was a reason for leaving Fiji because of what happened to him in 2008. The applicant saw this 457 visa as a way for him to escape the situation he was in where he had been a scapegoat. The biggest compelling reason is the reason he left Fiji with his situation and for the benefit of his children. The Tribunal informed the applicant that he provided a statement dated 8 October 2015 to the Department, but he did not make any mention about his situation in Fiji in that letter. The applicant stated that this was mainly dealing with the 457 visa.
The Tribunal brought to the applicant's attention that on the second page is a heading: ‘compelling reasons to grant my 457 visa application’. The applicant stated that it is true that he did not mention it in that paragraph, but he will add that as a compelling reason. The Tribunal informed the applicant that the visa was refused on 22 October 2015 and the first time he mentioned the situation in Fiji was today at the hearing. The Tribunal informed the applicant that he applied for the visa in April 2015 and it is about one year and nine months since he applied for the visa and the first time he mentioned the situation in Fiji is today.

The applicant stated that it was a big reason why he left Fiji and it took him another year to put an application to the Tribunal. The applicant was last in Fiji in August 2013 for his father’s funeral. He took his wife with him.
In terms of his employment, compelling reasons are that he could expand his knowledge regarding the trade he is in. This is relevant to his employment. The applicant stated that his employer did not attend the hearing to give evidence. The applicant spoke with him and he said that everything is with Immigration.
The Tribunal asked the applicant if there is a current letter from the employer. The applicant stated that he approached the employer about this last month and he said that he sent this to the Department. The Tribunal informed the applicant that it does not know if the employer has sent anything recently to the Department.
The applicant stated that his employer applied for approval of a nomination for a 457 visa after the applicant’s visa ceased. The representative stated that the nomination was approved on 29 May 2015. The representative showed to the Tribunal a copy of the letter of approval. It showed that the nomination of an occupation by South Pacific Engineering Pty Ltd was approved. The Tribunal informed the applicant that it can see that the nomination was approved and the employer made efforts to obtain the nomination but that nomination has now ceased. The applicant stated that the employer will apply for approval of another nomination.
The applicant stated that he has complied with all his visa conditions and he will comply with visa conditions if the visa is granted to him.
The applicant stated that his skills at his employment are required and very much needed by his employer. He has developed his skills while working here and he has expanded his knowledge while working in this trade. He fits in very much at his employment and he can fully utilise his skills where there is a skills gap. In Australia, the applicant works on cranes and he does load testing for the Defence Department on navy ships. He has worked at Garden Island. He has also worked outside of Sydney in Nowra on HMAS Albatross and he works on the ship.
The applicant stated that other companies also subcontract him but the majority of the work is with the Department of Defence.
The applicant stated that another compelling reason is to broaden and improve his skills, especially with the opportunities in Australia to utilise his skills.
The representative stated that the applicant was granted a Subclass 457 visa in 2011 and this visa was organised and arranged by the Managing Director of the employer. It was complicated but the outcome was successful and the visa was granted. This is why the applicant trusted and believed in the employer. Secondly for the ENS application, the employer told the applicant that everything was done for the visa application and he did not need to worry. Thirdly, the representative stated that the applicant is a person who has been working really hard to make contributions to the employer and he concentrated on his job. He never complained about work assignments. It is a very busy work schedule. The applicant is vulnerable and obeys the employer’s instructions. The applicant reminded the employer in December 2014 and January 2015 many times by telephone and emails about the visa issues. The applicant took the visa very seriously. The applicant and his family do not want to breach any visa conditions and they wanted everything to go smoothly towards permanent residence. The applicant called the employer many times and tried to arrange a face to face meeting to talk with the employer but failed. The representative also referred to the references from the applicant’s colleagues, Ravinesh Pratap and Ian Holmes, who have already been granted the ENS. Their visa applications were arranged by the employer and were lodged by the employer on behalf of these colleagues. The employer tried to go through ENS online system but found that he could not do it and then he called the applicant and said there was something wrong and the applicant went to the Department and was told he was illegal and then the applicant came to the representative.
The representative requested time to provide a further letter from the employer. The Tribunal allowed until 13 February 2017.
On 10 February 2017 the Tribunal received a detailed reference dated 9 February 2017 from Mr Noel Lal, Managing Director of South Pacific Engineering Pty Ltd. Mr Lal stated that the employer is happy to offer the applicant long term employment to utilise his expertise and training within the organisation.
The Tribunal has considered the evidence, both oral and written and the submissions. The Tribunal has had regard to the judgment in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 of Smith FM who referred to a judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162 and stated at paragraph 17:
The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person. A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.
The Tribunal has considered whether the applicant, in his own particular circumstances, might have been able to do something to prevent the relevant event occurring. Was the applicant able to do something so that he applied for the Subclass 457 visa before his previous substantive visa ceased? The Tribunal is of the view that the applicant could have done a number of things so that he applied for the visa before his previous substantive visa ceased. He could have applied for the visa himself before his previous Subclass 457 visa ceased. Once he delegated the responsibility to his employer, he could have regularly followed up with him as to whether the visa had been lodged and he could have asked for a copy of the visa application before or after it was lodged. The applicant could have contacted the Department to inquire about the progress or he could have obtained his own migration advice.
The evidence before the Tribunal is that the applicant was aware that his visa was going to expire on 22 March 2015. The Tribunal accepts that the applicant tried to contact the employer and he spoke with the employer about his visa expiring. Although the applicant stated that he sent emails to the employer, these have not been provided to the Tribunal. The applicant’s evidence is that he relied on the employer to apply for the ENS nomination and lodge the Subclass 186 visa application on the applicant’s behalf. The applicant’s evidence was that the employer had promised that he would apply for the permanent visas on the applicant’s behalf and the applicant believed the employer, put his trust in him and totally relied on him. However, the visa application was not lodged before the applicant’s previous substantive visa ceased and Mr Lal of the employer informed the applicant that there was a problem with the visa lodgement and recommended that the applicant attend the Department. The employer told the applicant that he had received an acknowledgment letter on 31 March 2015 for the ENS nomination application lodged on 10 February 2015 from the Department but the applicant’s ENS visa application could not go through via online system.
Although the applicant stated that most of his communication with the Managing Director was on the telephone, the Tribunal is satisfied that the applicant could have made enquiries of the Department about the progress or lodgement of a visa application in his name, particularly as Mr Lal of the employer was away a lot on business trips.
The Tribunal has considered the applicant’s claim that he trusted his employer because he was the person who dealt with the whole process of the previous Subclass 457 visa application and everything was smooth without any problems. However, the Tribunal is satisfied that, in the circumstances of this case, lodging a Subclass 457 visa before the previous Subclass 457 visa ceased, was within the control of the applicant in a practical and realistic sense. The applicant had an employer that has been supporting him and was willing to nominate him. The applicant could have made enquiries of the Department and/or approached a migration agent and applied for the visa before his previous Subclass 457 visa ceased.
The applicant gave evidence that he had asked an Immigration officer at an expo at the Town Hall and he said that after two years the applicant can apply for permanent ENS 186 and since then he has been reminding his employer. This evidence leads the Tribunal to conclude that the applicant is able to make enquiries of the Department about visas and he did so at the expo.
Although the employer told the applicant that everything was done for the ENS application for the visa application and he did not need to worry, the Tribunal finds that it was within the control of the applicant to ask for the visa application from the employer and to make enquiries of the Department to confirm that a visa application had indeed been lodged. The Tribunal does not accept the applicant’s claim that it was beyond his control because the failure of the system did not allow his visa application. The applicant could have made enquiries of the Department or instructed a migration agent to act on his behalf and the applicant could have applied for the Subclass 457 visa before his previous substantive visa ceased. The applicant lodged the visa application on 24 April 2015.
Whether the employer did not know the date the applicant’s visa ceased and thought it was on 5 May 2015 (four years after the applicant arrived in Australia) rather than 22 March 2015 (the actual date of the expiration of the Subclass 457 visa), the Tribunal is satisfied that the applicant could have applied for a substantive visa before his previous substantive visa ceased. The applicant could have gone to the Department and spoken with an officer prior to his visa ceasing. He could have approached a migration agent or solicitor and obtained advice. Although the applicant applied on 24 April 2015 for a further Subclass 457 visa, this was more than a month after his previous Subclass 457 visa ceased.
The Tribunal is satisfied on the evidence that the applicant had an employer that was willing to sponsor him when the ENS application was lodged and when the applicant applied for a Subclass 457 visa. The applicant has had the support of a sponsoring employer since before he first arrived in Australia in 2011. The Tribunal is satisfied that it was within the applicant’s control to apply for a Subclass 457 visa with the support of a sponsor before his previous Subclass 457 visa ceased.
The Tribunal considers that applying for a Subclass 457 visa before his previous substantive visa ceased was something that was within the applicant’s control. He could have applied for a Subclass 457 visa before his Subclass 457 visa ceased on 22 March 2015.
The Tribunal has had regard to the judgment of the Federal Circuit Court of Australia in Montero v Minister for Immigration & Anor [2014 FCCA 946]. Judge Manousaridis stated in that case:
In my opinion, although the Tribunal referred to Smith FM’s exposition in Su of the expression “beyond the control of a person”, the Tribunal did not apply it. The principal matter on which I base my opinion is the Tribunal’s failure to refer to, or otherwise indicate it considered, the fact that the applicant could not have applied for an Employer Nomination visa without the co-operation of his employer; and that the applicant, although he could urge, he could not direct his employer to do what it had to do to enable the applicant to apply for an Employer Nomination visa before the applicant’s 572 visa expired. In that regard, cl.857.213(a) of Schedule 2 to the Regulations, as it stood on the day the Tribunal made its decision (26 April 2013), required that as at the day on which the applicant applied for an Employer Nomination visa he must have “been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer”. Had the Tribunal correctly understood Smith FM’s exposition in Su of “beyond the control of a person”, the Tribunal would have considered whether some act on the part of the applicant’s employer was a necessary condition to the applicant’s being in a position to lodge an Employer Nomination visa while the applicant held a 572 visa and, if so, whether his employer’s performing such act was within the control of the applicant.
In this case the applicant applied for a Subclass 457 visa. The criteria are different from those to be met for a Subclass 857 visa. The applicant was able to apply for a Subclass 457 visa without the employer having already applied for approval of a nomination. The Schedule 1 requirements in Item 1223A(3)(d) state that in the case of an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 457 on the basis that the applicant meets the requirements of subclause 457.223(4), the application must specify the person who has nominated, or who proposes to nominate, an occupation in relation to the applicant; and the application must be accompanied by evidence that the person who has nominated, or proposes to nominate, the occupation is a standard business sponsor; or a person who has applied for approval under regulation 2.61 as a standard business sponsor but whose application has not yet been decided.
The applicant had to specify the person who has nominated, or who proposes to nominate, an occupation in relation to the applicant. The application also had to be accompanied by evidence that the person who has nominated, or proposes to nominate, the occupation is a standard business sponsor or a person who has applied for approval under regulation 2.61 as a standard business sponsor but whose application has not yet been decided. The Tribunal is satisfied that the applicant was able to specify a person who proposes to nominate an occupation in relation to the applicant.
The Tribunal is of the view that this requirement in Item 1223A(3)(d) does not require the co-operation of an employer to the extent referred to in the case of Montero v Minister for Immigration & Anor where it was a requirement that, as at the day on which the applicant in that case applied for an Employer Nomination visa, he must have been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer.
The Tribunal does not accept that failure to lodge the Subclass 457 visa application, before his previous substantive visa ceased, was a factor beyond the applicant’s control. The Tribunal is satisfied that lodging the Subclass 457 visa application before the previous substantive visa ceased was within the control of the applicant.
The Tribunal is satisfied that the applicant could have applied for the visa before his previous substantive visa ceased and that it was not beyond his control to apply for a Subclass 457 visa.
The Tribunal has considered the evidence and is not satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control. The Tribunal is therefore not satisfied that the applicant meets the requirements of Schedule 3 criterion 3004(c). Therefore he does not meet Schedule 3 criterion 3004. As the applicant does not satisfy Schedule 3 criterion 3004, it is unnecessary for the Tribunal to consider whether he satisfies Schedule 3 criteria 3003 and 3005.
The Tribunal finds that the applicant does not meet cl.457.211(b)(ii). The Tribunal finds that the applicant does not meet cl.457.211 at the time of application. For these reasons, the applicant does not satisfy Schedule 3 criterion 3004 for the purposes of cl.457.211.
The Tribunal acknowledges that the applicant and his family have settled into Australia. His children are working or studying and the applicant and his wife are working full-time. The Tribunal acknowledges that the applicant and his skills are valued by his employer. However, the Tribunal has found that the applicant does not meet Schedule 3 criterion 3004 for the purposes of cl.457.211.
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
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
D. Dimitriadis
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.

[2017] AATA 558

20 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction