T.S. & W. M. RIVETT PTY LTD ATF TS RIVETTS FAMILY TRUST (Migration)

[2020] AATA 2283

T.S. & W. M. RIVETT PTY LTD ATF TS RIVETTS FAMILY TRUST (Migration) [2020] AATA 2283 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  T.S. & W. M. RIVETT PTY LTD ATF TS RIVETTS FAMILY TRUST

VISA APPLICANT:  Mr Vishalbir Singh

CASE NUMBER:  1814966

DIBP REFERENCE(S):  BCC2018/993973

MEMBER:Antonio Dronjic

DATE:7 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 May 2020 at 5:33pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Schedule 3 criteria – ceased to hold substantive visa – whether entitled to visa if applied on last day of previous substantive visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.221A; Schedule 3, Criterion 3004

CASES
Quan v MIMAC [2013] FCCA 1254

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 May 2018 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 March 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.221A was not met because the visa applicant, Mr Vishalbir Singh, was not the holder of a substantive visa at the time of application and was unable to meet relevant Schedule 3 criteria.

4. The applicant applied to the Tribunal on 22 May 2018 for review of the delegate’s decision. With the application, the applicant enclosed a copy of the primary decision record.

5. On 10 March 2020, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act seeking information in writing that Mr Singh meets Schedule 3 for the purposes of cl.457.211Ato the Regulations.

6. On 14 April 2020, after being granted an extension of time, the applicant submitted a letter from Mr Singh dated 14 April 2020 in which he, inter alia, stated:

   Initially when the 457 nomination was approved, I was very happy, and I immediately applied for the 457 visa as I didn’t want to waste any time. I had already applied for student visa on 29/08/2017. I have waited for 5months since then for the decision on my student visa. It is totally up to the department when they are going to decide on the visa (cannot control that). The usual time for granting student visa since then was almost 60days (now 88days).

   I was worried where my future was going. Meanwhile my nomination was approved, and I had applied for 457-visa application. Initially, when I made the application, I was on bridging visa. Therefore, I travelled overseas and applied for the 457 visa from overseas. Once my application was allocated to the case officer, I was waiting for the direction of my migration agent, to advise me to depart Australia. If, I could depart Australia at the right time and stay overseas until the decision is made, then Schedule 3 will not apply to my case. Even now, I am ready to return to my home country and apply for visa again. But due to the current scenario (COVID -19), I cannot move back to my home country. I believe, I have the compelling reasons to waive the schedule 3 and grant me the requested 457 visa.

7. On 15 April 2020, 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’s authorised person to give oral evidence and present arguments at a hearing scheduled for 7 May 2020.

8. Ms Rivett, the owner and manager of the sponsoring business, appeared before the Tribunal via telephone conferencing on 7 May 2020 to give evidence and present arguments. The applicant’s migration agent attended the Tribunal’s hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the visa applicant satisfy the relevant Schedule 3 criteria?

10. Relevantly to this matter, for visa applications made on or after 14 September 2009, cl.457.221A requires that an applicant who is 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 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.

11. In the present case, the visa applicant did not hold a substantive visa at the time of decision and did not previously hold a Subclass 771 or special purpose visa.

    Is criterion 3003 met?

12. 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 visa applicant was not such a person, and accordingly criterion 3003 does not apply.

    Is criterion 3004 met?

13. 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.

14. 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.

15. 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; 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.

16. Mr Singh last held a substantive visa on 30 August 2017, when his Subclass 573 visa expired. On 29 August 2017, Mr Singh lodged a further application for a Student visa and this application was refused by the Department on 24 October 2017. Since 30 August 2017, Mr Singh has held a Bridging visa A or B in connection with his review applications lodged with the Tribunal in respect of the Department’s decisions to refuse his Student visa application.

17. According to the primary decision record, on 23 February 2018 the visa applicant was granted a Bridging Visa B and left Australia on 1 March 2018 to lodge a Subclass 457 – Temporary Work (Skilled) visa offshore. He returned to Australia on 4 March 2018.

18. In her evidence, Ms Rivett stated that she is the owner and the manager of the sponsoring business, T.S. & W. M. Rivett Pty Ltd, which operates a bakery in Swan Hill. Mr Singh commenced his employment at the bakery in July 2018. The last time he worked at the bakery was in May 2019. Ms Rivett stated that she would be willing to employ Mr Singh again if he is to be granted a Subclass 457 visa.

19. Ms Rivett confirmed in her evidence that the business was approved as a standard business sponsor (SBS) on two occasions. The first SBS approval was from 21 January 2013 to 21 January 2016 and the second SBS approval was from 16 April 2018 to 16 April 2023. She further confirmed in her evidence that Mr Singh was nominated for the position of baker and the nomination application was approved by the Department on 16 April 2018.

20. The Tribunal explained the requirements of criterion 3004 to Ms Rivett and in particular the requirements of criterion 3004(f)(i).

21. The Tribunal considered whether Mr Singh meets criteria contained within criterion 3004(f). This criterion requires the visa applicant to demonstrate that he would have been entitled to the grant of the Subclass 457 visa if he had applied for the visa on the day on which he last held a substantive visa, on 30 August 2017.

22. In the present case, the evidence before the Tribunal is that on 30 August 2017, being the time when Mr Singh’s last substantive visa expired, no sponsorship or nomination relating to Mr Singh had been lodged with the Department, allowing him to satisfy the mandatory nomination criteria in cl.457.223(4)(a).

23. The application of criterion 3004(f)(i) was the subject of judicial consideration in Quan v MIMAC [2013] FCCA 1254 (Quan). In that case, the Tribunal (differently constituted) found that the visa applicant would not have been entitled to a Subclass 457 visa when she last held a substantive visa, as she could not meet the requirements for making a valid application in Item 1223A of Schedule 1, which required that the visa applicant specify the employer by whom they proposed to be employed, and that the application be accompanied by evidence the proposed employer was an approved sponsor or had applied for sponsorship approval. On 30 August 2017, Mr Singh would have been unable to submit evidence to the Department that the proposed employer was an approved sponsor or had applied for sponsorship approval.

24. Relevantly to the present matter, the Tribunal in Quan went on to find that the visa applicant would also not have been entitled to the grant of a Subclass 457 visa at the relevant time, as she also would not have been in a position to meet various applicable time of decision criteria in Part 457 of Schedule 2, which referred back to the ‘activity specified in the application’ (at [31]). The court found that, for the purposes of cl.457.211(b)(ii), the Tribunal was correct in finding that the visa applicant did not meet criterion 3004(f)(i) as she would not have been entitled to the grant of a Subclass 457 visa on the day on which she last held a substantive visa, as she did not have the sponsorship required for the grant of a Subclass 457 visa.

25. In these circumstances, it follows from the reasoning in Quan that Mr Singh was not entitled to be granted a visa of the class applied for had he applied for the visa on the day when he last held a substantive visa on 30 August 2017. Mr Singh therefore does not meet criterion 3004(f)(i). As there is no evidence that Mr Singh entered Australia unlawfully, criterion 3004 (f)(ii) does not apply.

26. As the visa applicant does not meet criterion 3004(f), it follows that Mr Singh does not meet criterion 3004 as a whole and, therefore, does not satisfy cl.457.221A of the Regulations. Given these findings, it has not been necessary for the Tribunal to consider Mr Singh’s claims and evidence in relation to the remaining criteria under criterion 3004.

27. It follows that, as the visa applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

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

    Antonio Dronjic
    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.