Tam (Migration)

[2017] AATA 1898

Tam (Migration) [2017] AATA 1898 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ho Chi Tam

CASE NUMBER:  1618297

DIBP REFERENCE(S):  BCC2015/3754932

MEMBER:Stavros Georgiadis

DATE:28 September 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 28 September 2017 at 12:17pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Visa conditions – Compliance with conditions of last substantive visa and subsequent bridging visa – Employment by any one employer for no more than six months – Applicant worked for same employer in excess of six month limitation on two occasions

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 457.221, Schedule 8, Condition 8547

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 Immigration on 28 October 2016 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 8 December 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).

3. The delegate refused to grant the visa on the basis that cl.457.221 was not met for the grant of the visa because the delegate found the applicant had breached condition 8547 of the last substantive visa held (TZ-417 Holiday Visa) and his subsequent Bridging visa A by working more than 6 months with any one employer under a cultural exchange work program.

4. The applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets cl.457.221 by not having breached condition 8547 for the grant of the visa.

   Has the applicant complied substantially with the conditions of the last relevant visas?

8. 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.

9. 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.

10. In the present case, the applicant’s last substantive visa was a Subclass TZ 417 Working Holiday Maker visa  that was subject to condition 8547. The applicant subsequently held a Bridging visa A which is also subject to condition 8547.

11. At the hearing the applicant confirmed that he was present in Australia when he lodged his 457 visa application on 8 December 2015.  This is consistent with the department’s movement records available to the Tribunal.  The applicant also confirmed that he was aware that condition 8547 applied his TZ 417 Working Holiday visa held at that time.  When asked to confirm his understanding of condition 8547 he told the Tribunal that he was not able to work any more than a “half year” for any one employer in respect of the visa.  Condition 8547 requires that the visa holder has “permission to work in Australia which is limited to a maximum of six months with anyone employer.”

12. At the hearing the applicant confirmed that he worked for a period of seven months from 17 March 2015 to 17 October 2015 while he held the 417 Holiday visa.  He also said that after taking a break and returning to the same sponsor employer from 17 February 2016, he continued to work with that employer until present while holding a Bridging visa A.  When asked to confirm the name of the employer, the applicant responded that he works for the restaurant known as TOMIKO Japanese Steakhouse which is located at the Marina Pier building at Holdfast Shores, Glenelg in South Australia.  The Tribunal accepts that the business sponsor employer is Holdshores Pty Ltd which trades as TOMIKO Japanese Steakhouse.

13. The Tribunal accepts the applicant’s oral evidence that whilst he was a holder of the 417 Holiday visa (being his last substantive visa), he worked for a period of seven months and continued to work with the same employer whilst holding a Bridging visa A, for a period in excess of 18 months to date.  The Tribunal accepts that the applicant was aware of the “half year” work restriction applying to condition 8547 on his 457 Holiday visa but also accepts that he was unsure that this condition also applied to his Bridging visa A.  The Tribunal accepts that the applicant understood that the purpose of the visa and the condition was to limit the duration of his cultural exchange work programme with the employer to a “half year” to use his own words. 

14. The Tribunal has taken into account that in total the applicant worked for the same employer for a period substantially in excess of the six month limitation on two separate occasions.  In aggregate, the applicant has worked for the same employer for a period of over 30 months since commencing there on a part-time basis from 15 March 2014.  The applicant’s oral evidence was also confirmed by a written supporting statement dated 13 November 2015 from the sponsoring business which sets out “Mr Ho Chi Tam has been working for us as a Cook since March 2014... ” referred to also in the delegate’s decision.

15. Having considered the available evidence before it discussed above and the aforementioned case authorities, the Tribunal finds that the applicant has not complied substantially with the relevant condition 8547 which applied to the last substantive Class TZ, subclass 417 Working Holiday visa held by the applicant.  The Tribunal also finds that the applicant has not complied substantially with condition 8547 which continues to apply to his subsequent and current Bridging visa A.

16. 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.

17. 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

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

    Stavros Georgiadis
    Member