Sydney Building Corporation Pty Ltd (Migration) - [2021] AATA 1164

Sydney Building Corporation Pty Ltd (Migration) [2021] AATA 1164 (17 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Sydney Building Corporation Pty Ltd
VISA APPLICANTS:  Mr Sung Chun Lee
Ms Mi Kyung Jo
CASE NUMBER:  1826635
HOME AFFAIRS REFERENCE(S):          BCC2017/1998889
MEMBER:Bridget Cullen
DATE:17 February 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made 17 February 2021 at 11.57am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– failed to satisfy Schedule 3 Criterion 3004 – applicant did not hold a substantive visa at the time of decision – relevant point in time – applicant had not yet commenced work for sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, cls 457.221A, 457.223, Schedule 3
CASES
Zhuang v MICMSMA [2020] FCA 742
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 Home Affairs on 23 August 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 6 June 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). 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.457.221A because the applicant did not meet the required Public Interest Criterion 3004.
The review applicant appeared before the Tribunal on 7 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Sung Chun Lee, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The review applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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 relevant Schedule 3 - Public Interest Criterions.
Does the applicant satisfy the relevant Schedule 3 criteria?
Relevantly to this matter, for visa applications made on or after 14 September 2009, cl 457.221A requires that an applicant who was 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.
In the present case, the applicant does not hold a substantive visa at the time of decision and did not previously hold a Subclass 771 or special purpose visa.
In deciding if the applicant meets the relevant Schedule 3 criteria, the Tribunal has before it the following material:
-    The material that was before the Department Delegate when the Department refused the visa on 23 August 2018;
-    Submissions from the applicant’s representative dated 13 March 2020;
-    Various letters from the applicant, Timothy Lee, William Lee and Janet Lee, all dated 1 March 2020;
-    A letter from Justo Bouzo (Managing Director of the Review Applicant) dated 28 February 2020;
-    A letter from George McCormich (Manager – Community Development & Capacity Building – Walgett Shire Council), dated 8 April 2019;
-    Letter from Amanda Cheal dated 2 May 2019;
-    Letter from Samuel Sung Min Jo (Pastor for Melbourne Full Gospel Church) dated 3 April 2019; and
-    The ATAR 2019 Advice and documentation relating to a Scholarship from the University of Sydney for Timothy Lee.
Is criterion 3003 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. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.
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.
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.
In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to 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.
Following Zhuang v MICMSMA [2020] FCA 742, the Tribunal has considered whether, if an application had been made on the date the visa applicant last held a substantive visa, it could have been supported by an approved sponsor. Colvin J at [53] stated that this was 'a factual question which required a consideration of the position of [the applicant] many years earlier'. There is no doubt that the relevant date for this assessment is the date on which the visa applicant last held a substantive visa.
Here, the Tribunal has considered whether the evidence before it demonstrates that the sponsorship and the nomination could have been obtained at the relevant point in time.
The visa applicant has worked for Sydney Building Corporation Pty Ltd as a carpenter from 1 June 2016. The application that is presently under review, seeking to nominate the visa applicant in the role of Carpenter, was made on 6 June 2017.
At the relevant point in time, 18 January 2016, the visa applicant had not yet commenced work for Sydney Building Corporation Pty Ltd. The applicant did not commence work for approximately six months following this date. As such, the Tribunal is not able to find that he could have been supported by an approved sponsor at the relevant point in time, six months prior to his commencement date.
For these reasons, the Tribunal considers that as at 18 January 2016, being the day the applicant last held a substantive visa, the applicant would not have met the requirements in cl.457.223(4)(a) which requires that a nomination of an occupation made under s.140GB by an approved sponsor in relation to the applicant has been approved. Consequently, the Tribunal finds that the applicant would not have been entitled to be granted the Class UC (Subclass 457) visa if he had applied for the visa on the day he last held a substantive visa.
Given the above findings, the Tribunal finds that cl.3004(f)(i) is not satisfied. As noted above, the alternative requirement in cl.3004(f)(ii) is not relevant to the circumstances of this case. Accordingly, the applicant does not satisfy cl.3004(f). As the Tribunal has found that the applicant does not meet one of the requirements in Criterion 3004, it is not necessary to consider any of the other requirements in Criterion 3004. For these reasons, the applicant does not satisfy Criterion 3004 for the purposes of cl.457.221A.
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.
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.