Tianok (Migration) - [2017] AATA 1238

Tianok (Migration) [2017] AATA 1238 (14 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Narapan Tianok
CASE NUMBER:  1606038
DIBP REFERENCE(S):  BCC2016/203973 CLF2016/28966
MEMBER:Danica Buljan
DATE:14 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

Statement made on 14 July 2017 at 3:35pm
CATCHWORDS
Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Sport stream – Nomination – Legislative amendment – Replacement with subclass 408 (Temporary Activity) visa – No approved nomination
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 349, 351, 359A(4)(b), 363(1)(b)
Migration Amendment (Temporary Activity Visas) Regulation 2016
Migration Regulations 1994, Schedule 2, cl 401.214, cl 401.212, cl 401.214, r 2.72A, r 2.75A
CASES
Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Hui v Minister for Immigration and Citizenship [2011] FMCA 486
Jin v MIAC [2009] FMCA 540
Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIMA; Ex parte Miah (2001) 206 CLR 57
Minister for Immigration and Multicultural Affairs v ‘A’ (1999) 91 FCR 435
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration and Citizenship v You [2008] FCA 241
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Sok v Minister for Immigration and Citizenship (2008) 238 CLR 251
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
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 Immigration on 13 April 2016 to refuse to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 5 January 2016. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).
The criteria for a Subclass 401 visa are set out in Part 401 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 only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1238
Decision Date: 14 July 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Temporary Work (Long Stay Activity) (Class GB) visa, subclass 401, under the sport stream. The primary decision to refuse the visa was based on the delegate's dissatisfaction with the applicant's genuine intention to stay temporarily in Australia.

The Tribunal was required to determine whether the applicant met the requirements of clause 401.212 of the Migration Regulations 1994, which mandates that an applicant be identified in an approved nomination and that the approval of that nomination has not ceased. This nomination must have been made by an approved sponsor. Additionally, the Tribunal had to consider whether there was any adverse information known to the Department about the nominator or associated persons, or if such information could be disregarded.

The Tribunal noted that the applicant's original refusal was due to concerns under clause 401.214, which relates to the genuine intention to stay temporarily. The delegate had found that the applicant's extended stay in Australia on multiple temporary visas indicated a lack of genuine temporary intention. The Tribunal affirmed its power to exercise all the powers and discretions of the primary decision-maker, effectively standing in their shoes. Applying this, and considering the evidence, the Tribunal found that the applicant did not meet the requirements of clause 401.212, as there was no evidence of an approved nomination.

Consequently, the Tribunal affirmed the decision under review and ordered that the applicant not be granted the Temporary Work (Long Stay Activity) (Class GB) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is currently whether the applicant meets the requirements of clause 401.212. Nomination requirements Clause 401.212 requires that an applicant is identified in a nomination of an occupation or activity approved under section 140GB of the Act, and that the approval of the nomination has not ceased.[8] In particular, this nomination must be have been made by a person who was, at the time of approval, a long stay activity sponsor, exchange sponsor, sport sponsor or religious worker sponsor.[8] See regulation 2.75A In addition, clause 401.212 requires either that there is no adverse information known to Immigration about the person who made the approved nomination (or a person associated with the nominator), or that it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in regulations 1.13A and 1.13B of the Regulations. The Tribunal observes that the applicant’s visa application was originally refused because the delegate was not satisfied that he met the requirements of clause 401.214 of the Regulations. Clause 401.214 requires that an applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held was subject;·whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and ·any other relevant matter. In this case the delegate found that the applicant had spent more than 4 years in Australia as the holder of multiple Temporary Work (Long Stay Activity) (Class GB) subclass 401 and 421 visas. As a result, the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes of clause 401.214.[9] [9] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451. This information was included in the invitation sent to the applicant under section 359A of the Act on 26 May 2017. See T1, f.51-54 The Tribunal notes that it may, for the purposes of a review, exercise all the powers and discretions that are conferred by the Act on the person who made the primary decision.[10] The Courts have on occasion described this as the Tribunal ‘standing in the shoes’ of the primary decision-maker.[11] In particular, the High Court in Minister for Immigration and Citizenship v SZKTI found that because subsection 349(1) confers upon the Tribunal ‘all the powers and discretions’ conferred on the primary decision-maker, those powers - both substantive and procedural - are exercisable by the Tribunal.[12] [10] Section 349 of the Act[11] Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]; MIMA; Ex parte Miah (2001) 206 CLR 57[12] Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [33] and Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 at [21]. The Courts found in the context of the Tribunal’s power to obtain information that it could exercise the procedural powers found in section 56 of the Act, which was previously thought to have only applied to the handling of primary ‘visa applications’ by the Minister or his delegate.

Decision

Reasons for decision

Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.Danica BuljanMember

Ratio Decidendi

Legal Principle Established

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