Tannous (Migration)

[2023] AATA 4451

Tannous (Migration) [2023] AATA 4451 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Tannous

CASE NUMBER:  2218189

HOME AFFAIRS REFERENCE(S):          BCC2022/1371129

MEMBER:R. Skaros

DATE:10 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 10 November 2023 at 1:51pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Australian Government endorsed event – LIN 22/046 – COVID-19 Pandemic event – timing of employment offer – No Work condition – approved NDIS provider – Commonwealth funded aged care service provider – decision under review affirmed

LEGISLATION
Aged Care Quality and Safety Commission Act 2018 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 408.219A, 408.229

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 24 November 2022 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 32-year-old citizen of Lebanon. He travelled to Australia on 25 March 2022 as the holder of a Visitor Class FA (Subclass 600) visa. The Subclass 600 visa was subject to condition 8101 (No Work) (8101).

3. The applicant applied for the visa on 22 April 2022. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22. The applicant sought the visa on the basis of the COVID-19 Pandemic event which is provided for in cl 408.229.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 408.219A of Schedule 2 to the Regulations because the delegate was not satisfied that any of the clauses in Subdivision 408.22 applied to the applicant.

5. The applicant appeared before the Tribunal on 6 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl 408.219A.

8. In the Subclass 408 visa application form, the applicant identified the activity for which he sought the visa as the government endorsed event (COVID-19 Pandemic). In support of the application, the applicant provided a letter from Xpress Electrical Services Pty Ltd offering him employment as an apprentice in electrical work.

9. On review, the Tribunal received a statement from the applicant together with various supporting documents. The Tribunal also had the opportunity to take oral evidence from the applicant at the hearing.

10. The applicant gave evidence that he travelled to Australia on 25 March 2022 and loved the country. He received advice from a migration agent that he is eligible for the Temporary Activity (Subclass 408) visa because of the pandemic, so based on that advice he engaged the agent to act on his behalf. When the visa was refused, he was advised to appeal the decision to the Tribunal.

11. The applicant said he has been offered employment as a support worker for the elderly by Aus Care Community Services Pty Ltd which is registered with the National Disability Insurance Scheme (NDIS). The Tribunal has had regard to the letter of offer, which was undated, from Aus Care Community Services Pty Ltd indicating that the position offered to the applicant is that of support worker and is subject to him being granted a visa. There is no mention in the letter that the Company provides aged care services or that they have been approved (and funded) by the Commonwealth to provide such services.  

12. The applicant indicated that he believes he qualifies for the visa based on the offer of employment to provide care services as this is a job he would like to do. He said he does not have qualifications in aged care but would be happy to study aged care. The Tribunal explained to the applicant that there were two issues with the supporting evidence. Firstly, it did not appear to satisfy the requirement in subsection 4(b) of LIN 22/046 that the employment was offered at the time of application. Secondly, being an approved NDIS provider is not the same as being a Commonwealth funded aged care service provider. Aus Care Community Services Pty Ltd appears to be approved to provide disability services under the NDIS but they have not indicated that they are a Commonwealth funded aged care service.

13. The applicant said he is afraid to return to Lebanon due to the conflict between Israel and Hezbollah. He referred to information on Smart Traveller which states that there is a possibility of an increase in armed conflict and that travel is not advised due to the volatile security situation. The applicant also indicated that the economic conditions in Lebanon made it difficult for people to survive. He requested the Tribunal to consider Australia’s protection obligations.

14. At the hearing, the Tribunal explained to the applicant that there is no provision in the legislation to consider the economic or security situation in Lebanon, or to consider any claims for protection, and that the Tribunal must apply the legislative provisions relevant to the Subclass 408 visa.   

    COVID-19 Pandemic event

15. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for the applicant to meet cl 408.219A, which is an essential requirement for the visa. In this case, the applicant seeks to satisfy the requirements of cl 408.229. The applicant has not claimed to meet cl 408.219A on any other basis.

16. Clause 408.229 applies to the applicant if; (a) he seeks to enter or remain in Australia to undertake work directly associated with an event; and (b) the event is specified in a legislative instrument made by the Minister for the purposes of this paragraph; and (c) the applicant is in a class of persons specified in the instrument in relation to the event.

17. The applicant applied for the visa on 22 April 2022, the relevant Instrument in this case is therefore LIN 22/046: COVID-19 Pandemic event for Temporary Activity (Subclass 408 visa). Item 6 of LIN 22/046 prescribes the classes of eligible persons, which includes those mentioned in subsection (2), (3), (4) or (5).

18. Subsection (2) applies to an applicant who, at the time of application, is in Australia; and is working, or in receipt of an offer to work, in Australia; and either: holds a relevant temporary visa with work rights that is 90 days or less from ceasing to be in effect; or held a relevant temporary visa with work rights that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

19. At the time of application, the applicant held a visa, was in receipt of an offer of work as an apprentice electrician, however, he did not hold a visa with work rights. As the applicant’s Subclass 600 visa was subject to a No Work condition, he does not come within the class of persons specified in Item 6 Subsection (2).

20. Subsection (3) applies to an applicant who, at the time of application, last arrived in Australia before 21 February 2022; and is in Australia; and is working, or in receipt of an offer to work, in Australia; and either: holds a substantive temporary visa without work rights that is 90 days or less from ceasing to be in effect; or held a substantive temporary visa without work rights that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

21. As the applicant last arrived in Australia on 25 March 2022, he does not come within the class of persons specified in Item 6 Subsection (3).

22. Subsection (4) applies to an applicant who, at the time of application, is in Australia; and is employed by, or in receipt of an offer of employment from a Commonwealth funded aged care service; and either: holds a relevant temporary visa that is 90 days or less from ceasing to be in effect; or held a relevant temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

23. At the time of application, the applicant was in receipt of an offer of employment from Xpress Electrical Services Pty Ltd offering him employment as an electrical apprentice. This clearly does not satisfy the requirement as it is not employment from a Commonwealth funded aged care service. The Tribunal has also had regard to the offer of employment as a support worker with Aus Care Community Services Pty Ltd. As explained to the applicant at the hearing, the offer of employment was not provided at the time of application. Furthermore, Aus Care Community Services Pty Ltd, which is involved in providing disability services under the NDIS, has not indicated (and there is no evidence) that they are an approved service provider of a Commonwealth funded aged care service, as defined in the Aged Care Quality and Safety Commission Act 2018. For these reasons, the Tribunal finds that the applicant does not come within the class of persons specified in Item 6 Subsection (4).

24. Subsection (5) applies to an applicant who, at the time of application is in Australia; and either: holds a Subclass 403 Seasonal Worker visa that is 90 days or less from ceasing to be in effect; or held a Subclass 403 Seasonal Worker visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made; and is employed by, or in receipt of an offer of employment from, an approved employer under the Seasonal Worker Program.

25. The applicant has never held a Subclass 403 Seasonal Worker visa or received an offer of employment under the Seasonal Worker program. Therefore, he does not come within the class of persons specified in Item 6 Subsection (5).

26. As the applicant does not come within any of the class of persons specified in LIN 22/046, he is unable to satisfy cl 408.229(c). It follows that the requirement in cl 408.229 is not met. The applicant has not claimed, and there is no evidence before the Tribunal to suggest, that any of the other Subdivisions in 408.22 apply to the applicant. Accordingly, cl 408.219A is not met.

27. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    R. Skaros
    Senior Member