Singh (Migration)

[2022] AATA 1687

Singh (Migration) [2022] AATA 1687 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parwinder Singh

REPRESENTATIVE:  Ms Sara Khodajoo

CASE NUMBER:  2103449

HOME AFFAIRS REFERENCE(S):          BCC2016/4026151

MEMBER:Antonio Dronjic

DATE:31 May 2022

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 31 May 2022 at 4:01pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – substantial compliance with conditions on previous visa – wilfully breached the ‘no work’ condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.221, 457.224; Schedule 4, PIC 4013; Schedule 8, Condition 8101

CASES
Baidakova v MIMIA [1998] FCA 1436
Jayasekara v MIMIA (2006) 156 FCR 199
Kim v Witton (1995) 59 FCR 258
MIMA v Modi (2001) 116 FCR 496
Shrestha v MIMA [2001] FCA 1578

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 Home Affairs on 10 March 2021 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 November 2016. 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 (Cth) (the Regulations).

   History of proceedings

3. The Department initially refused to grant the visa on 3 October 2017, on the basis that the applicant was unable to meet public interest criterion (PIC) 4013 for the purposes of satisfying the requirements of cl 457.224. The applicant’s last substantive visa, a Subclass 573 student visa, was cancelled on 7 December 2016 under s 116(1)(b) of the Act while the applicant was onshore. As he applied for a Subclass 457 visa on 29 November 2016, he was affected by a risk factor.

4. On 18 October 2017, the applicant sought a review of the Department’s decision and on 22 April 2020, the Tribunal (differently constituted) remitted the matter back to the Department with its direction that the applicant meets PIC 4013 for the purposes of cl 457.224.

5. On 10 March 2021, the delegate again refused to grant the visa on the basis that cl 457.221 was not met because the applicant had failed to provide information, when requested by the Department, that he complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.  

6. The applicant applied for review of the primary decision on 18 March 2021 and provided a copy of the Department’s decision to the Tribunal.

7. On 10 May 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 30 May 2022.

8. On 27 May 2022, the applicant’s representative submitted the following documents to the Tribunal:

   ·A copy of the applicant’s statutory declaration dated 27 May 2022;

   ·A copy of a letter from the applicant’s current employer, Blackout Restaurant and Lounge, dated 25 May 2022;

   ·Copies of payslips issued by the applicant’s current employer; and

   ·Legal submissions dated 27 May 2022.

9. The applicant appeared before the Tribunal via video link on 30 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review.

10. The applicant is 29 years of age and a citizen of India. He first came to Australia as a holder of a student visa in February 2014. In Australia he had completed a Certificate III and IV in Commercial Cookery. As stated in the applicant’s representative’s submissions of 27 May 2022, the applicant’s last substantive visa, a Subclass 573 student visa, was cancelled on 7 December 2016 under s 116(1)(b) of the Act while the applicant was onshore as he breached the condition 8202 that was imposed on his visa.

11. According to his evidence, in mid-2016, the applicant commenced part-time employment as a cook at the sponsoring business (Umpire Strikes Back Pty Ltd) that operated a restaurant called Laser Pick in Collingwood, Victoria. On 29 November 2016, the applicant applied for a Subclass 457 visa based on the sponsorship and nomination made by Umpire Strikes Back Pty Ltd.

12. He continued to work at the sponsoring business as a part-time cook until mid-2019. The applicant stated that he ceased working at the Laser Pick restaurant because the business needed to employ a full-time cook and he was unable to do so because of the conditions imposed on his visa. The last time he had any contact with the sponsoring business was in February 2021. On that occasion, he was told by the business owners that the position for a full-time cook was no longer available as they were not certain if the business would continue its operations. He later found out that the restaurant was closed.

13. From mid-2019 until February 2022, he continued to work as a part-time cook at several restaurants including one located in Armadale and one located in Chapel Street.

14. In his evidence the applicant confirmed that he submitted his statutory declaration dated 27 May 2022 to the Tribunal. He stated that everything in the declaration was true and correct and that he does not wish to change any part of that declaration or add anything to it.

15. The Tribunal observed that the applicant, in his statutory declaration, acknowledged that it was noted in the student visa cancellation record that his bridging visa A was also cancelled. He maintained that he did not properly comprehend that information. He claims that the migration agent who was engaged for the purposes of applying for a Subclass 457 visa, misinformed him by stating that once the application for a Subclass 457 visa was lodged, the applicant was entitled to work in Australia.

16. The applicant stated in his evidence that a few months after his application for a Subclass 457 visa was refused by the Department on 10 March 2021, he did a VEVO check and realised that he does not hold a bridging visa A. On 13 July 2021, he was granted a bridging visa E which was not subject to a ‘no work’ condition.

17. In February 2022, he commenced a part-time employment as a cook at Blackout Restaurant in Fitzroy, Victoria. This restaurant is operated by Sherr Pty Ltd. The applicant gave evidence that his current employer did not sponsor him or nominate him for the position within the business.

18. The Tribunal noted that the applicant stated in his evidence that the business that sponsored the applicant for a Subclass 457 visa was now closed. As such, the nominated position is no longer available. The applicant confirmed his understanding that, as of 2018, it is no longer possible to apply for a Subclass 457 visa. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Has the applicant complied substantially with the conditions of the last relevant visa(s)?

20. If the applicant is in Australia, cl 457.221 requires that he or she must have complied substantially with the conditions that applied to the last of any substantive visas held and to any subsequent bridging visa. Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. The circumstances considered by Sackville J to be relevant in Kim v Witton included:

    ·the nature of the breach of condition;

    ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

    ·whether or not the applicant deliberately flouted the condition; and

    ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

21. However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 496. In addition, there are visa conditions to which the concept of substantial compliance has no logical application. In these cases, either the condition is satisfied or it is not: Jayasekara v MIMIA (2006) 156 FCR 199.

22. In the present case, the applicant’s last substantive visa was a Subclass 573 visa that was cancelled on 7 December 2016. He applied for a Subclass 457 visa on 29 November 2016 and was granted a bridging visa A which was also cancelled on 7 December 2016.

23. The applicant confirmed in his evidence that, in the student visa cancellation decision record it was stated that, because of this student visa cancellation, any other bridging visa held by the applicant was also cancelled. He claims that he did not ‘properly comprehend that information’. The Tribunal does not accept this explanation. There was nothing ambiguous or misleading about the information contained in the Department’s student visa cancellation decision. According to his own evidence, it was stated in the decision record that, because of the student visa cancellation any other bridging visa the applicant might have was also cancelled.

24. The applicant also claimed that he received misleading advice from his migration agent who he had retained to prepare and lodge his Subclass 457 visa application. The applicant claims that he was advised by his agent that as soon as he applied for a Subclass 457 visa he would be granted a bridging visa A and therefore would be allowed to work and remain in Australia. The Tribunal finds nothing misleading about that advice. If the applicant’s student visa was not cancelled on 7 December 2016, he would have been entitled to remain legally in Australia providing that he complied with the 8105-condition imposed on his bridging visa A.

25. The applicant became an unlawful non-citizen during the period from 7 December 2016 to 31 July 2019, when he was granted a bridging visa E that was subject to conditions 8101 (no work), 8505 (inform the Department of change of address) and 8207 (must not engage in studies or training in Australia).

26. Despite being an unlawful non-citizen and not having permission to work, the applicant continued to work for the sponsoring business as a part-time cook until mid-2019. Even after his first bridging visa E (which contained no work condition 8101) was granted on 31 July 2019, the applicant continued to work as a part-time cook at various restaurants in Melbourne including the restaurants located in Armadale and Chapel Street.

27. The applicant claims that it was only after the Department refused his Subclass 457 visa application for the second time on 10 March 2021 that he undertook a VEVO check and realised that his bridging visa A, granted in connection with the application for a Subclass 457 visa, was also cancelled on 7 December 2016.

28. The Tribunal notes that, according to the primary decision record, on 1 February 2021 the applicant was invited by the Department to provide further information, including information that he complied substantially with the conditions imposed on his bridging visa. Despite requesting and being granted an extension of time, he has failed to provide the requested information.

29. Based on the evidence before it, the Tribunal is satisfied that the applicant was aware that his bridging visa A was cancelled on 7 December 2016.

30. On 24 July 2019 the applicant applied for a bridging visa E. This visa was granted by the Department on 31 July 2019. Despite being aware that he was granted a bridging visa E that was subject to a ‘no work’ condition, it was not until 28 June 2021 that the applicant applied to the Department to change the conditions imposed on his bridging visa E. According to his evidence, he continued to work as a part-time cook between 31 July 2019 and 13 July 2021, when the Department removed the 8101 (no work) condition.

31. Based on the evidence before it, the Tribunal finds that the applicant did not comply with the condition 8101 that was imposed on his bridging visa E granted on 31 July 2019 and that he continued to breach this condition until 13 July 2021. The Tribunal finds that the applicant wilfully breached the 8101 condition imposed on his bridging visa E granted on 31 July 2019. Considering the purpose for which the bridging visa E was granted, the Tribunal considered this to be a significant breach.

32. According to the applicant’s representative’s submissions, the applicant’s student visa was cancelled because he breached the 8202 condition imposed on his student visa. Considering the applicant’s previous experience related to the student visa cancellation and his evidence given during the hearing, the Tribunal is satisfied that the applicant knew that by continuing to work as a part-time cook he was breaching the condition 8101 imposed on his bridging visa E. He was aware, or at the very least ought to have been aware, of the significance and consequences of such a breach.

33. For these reasons, the Tribunal finds that the applicant has not complied substantially with the applicable visa conditions. As such, the applicant does not satisfy cl 457.221.

34. 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

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

    Antonio Dronjic
    Member