Tianok (Migration)
[2017] AATA 1238
•14 July 2017
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 2.75ACASES
Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617Hui 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 57Minister 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 73Sok 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 1292SZGME 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, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream. The Domestic Worker (Executive) stream is only available for visa applications made on or after 23 March 2013.
In the present case, the applicant is seeking the visa in the Sport stream. This stream enables the entry of sportspersons to participate in sporting activities or engage in competition with Australian residents. The delegate refused to grant the visa on the basis that the applicant did not meet clause 401.214 of Schedule 2 to the Regulations.
The applicant lodged an application for review with the Tribunal on 29 April 2016, and a copy of the primary decision was included with the application for review.[1]
[1] AAT Case File 1606038 (T1), f.1-20
The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3] The applicant was represented in relation to the review by his registered migration agent.[4]
[2] D1 - Departmental file CLF2016/28966, folio numbered 1-43
[3] AAT Case File 1606038, folio numbered 1-76
[4] T1, f.36
On 17 May 2017 the applicant was invited to appear before the Tribunal on 13 June 2017 to give evidence and present arguments relating to the issues arising in relation to the decision under review.[5]
[5] T1, f.40-46
On 26 May 2017 the Tribunal invited the applicant to comment on certain information before it, including departmental records. The Tribunal also invited the applicant to provide information that would substantiate any claim he had he met the requirements of clause 401.214. The invitation included extracts from the relevant legislative provisions to facilitate the applicant’s response.[6]
[6] T1, f.51-54
On 2 June 2017 the Tribunal received a submission from the applicant’s representative in response to this invitation, in which the representative advised that the applicant’s situation had changed and that he had instructions to seek Ministerial intervention under section 351 of the Act.[7]
[7] T1, f.59-60
The applicant appeared before the Tribunal on 13 June 2017 to give evidence and present arguments. The Tribunal also took evidence from Mr Roubai (Ruby) Beiruti, the applicant’s nominating employer, and Mr Zia Younan, one of the applicant’s trainees. The applicant’s representative did not attend the scheduled hearing. As a result, the applicant was self-represented at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
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.
It is also well established that in reviewing a decision to refuse to grant a visa, for which a valid application has been made pursuant to section 65 of the Act, the central question for the Tribunal is whether, at the time the Tribunal makes its decision, it is satisfied that the criteria prescribed by the Act and Regulations for the particular class of visa are met.[13]
[13] Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]; Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [18]; Minister for Immigration and Multicultural Affairs v ‘A’ (1999) 91 FCR 435; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Sok v Minister for Immigration and Citizenship (2008) 238 CLR 251 at [25].
The Tribunal also has a legal responsibility under section 2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick.
In general practice, the Tribunal usually confines its consideration to those criteria considered by the delegate, which in this case is clause 401.214. This is advocated in the Tribunal President’s Direction for ‘Conducting Migration and Refugee Reviews’[14] in terms of identifying ways to finalise each case in an expeditious manner.
[14] - Accessed 13 June 2017 and 13 July 2017: See clause 2 at T1, f.59
However, efficiency may also be achieved in certain cases such as this, by considering other criteria which are clearly not satisfied by an applicant, keeping in mind the equally important additional objectives of this Tribunal to provide a review that is fair, just, economical and quick.
In this case, and as explained to the applicant at the hearing, it is open to the Tribunal on the material before it to make findings in respect of the applicant’s ability to meet the time of decision criterion in subclauses 401.212(1) and (3). To do so is consistent with the President’s Direction noted above, which directs Members to take all reasonable steps to complete cases allocated to them as quickly as possible. This includes by quickly identifying relevant issues and identifying ways to finalise each case in an expeditious manner, keeping in mind the objectives referred to above that require the Tribunal to be fair and just, as well as economical and quick.
Importantly, the Courts have confirmed that the Tribunal is empowered to determine an application by reference to a specified criterion that has not been addressed by the primary decision maker. In particular, if the Tribunal is not satisfied that a criterion is met, and it is a necessary prerequisite for the grant of a visa, then the Tribunal will sufficiently exercise its jurisdiction by affirming the delegate’s decision on that basis.[15]
[15] Hui v Minister for Immigration and Citizenship [2011] FMCA 486 (Smith FM, 2 August 2011) at [35]; Jin v MIAC [2009] FMCA 540 (Driver FM, 10 June 2009)
Accordingly, the Tribunal turns to consider the requirements of subclauses 401.212(1) and (3), given the legislative changes introduced by Migration Amendment (Temporary Activity Visas) Regulation 2016[16], which repealed the subclass 401 visa on 19 November 2016.
[16] Reference number: F2016L01743
As discussed with the applicant at the hearing, clause 401.212 must be satisfied at the time a decision is made on the application by the relevant decision maker[17], which is the Tribunal in this case.
[17] See Division 401.2 ‘Primary Criteria’ in Subclass 401 in Schedule 2 of the Regulations
Specifically, subclause 401.212(1) requires the applicant to be identified in a nomination of an occupation or activity under section 140GB of the Act and regulation 2.72A of the Regulations. Subclause 401.212(3) requires that the approval of that nomination has not ceased under regulation 2.75A at the time of the Tribunal’s decision.
However, regulation 2.72A was repealed on 19 November 2016 as part of a series of legislative amendments to the Regulations, which also saw the abolition of the subclass 401 visa (’the legacy visas’) and its replacement with a new subclass 408 (Temporary Activity).
The effect of this is that the legacy visas and legacy sponsor categories have been closed to new applications since 19 November 2016. In other words, as at 19 November 2016, no new nominations for applicants for Subclasses 401 (Temporary Work (Long Stay Activity)), 402 (Occupational Trainee stream) and 420 (Temporary Work (Entertainment)) visas can be made. Importantly, this applies to legacy sponsors/nominators and legacy visa applications made before 19 November 2016.[18]
[18] See Explanatory Statement, p.52
In this case, the applicant gave evidence that he was identified in a nomination that was approved on 13 April 2016. He also confirmed that his nominator (A.C.N 153 702 062 Pty Ltd) did not lodge another application for approval of a new nomination prior to 19 November 2016.
As noted above, subclause 401.212(3) provides that the relevant nomination in which the applicant was identified must not have ceased under regulation 2.75A of the Regulations. Paragraph 2.75A(2)(b) provides that a nomination will cease by operation of law 12 months after the day on which the nomination is approved.
Accordingly, in this case and by operation of paragraph 2.75A(2)(b), the Tribunal finds that the approval of the nomination in which the applicant was identified ceased after 13 April 2017. The applicant did not dispute these matters at the hearing.
As a result, the Tribunal finds that the applicant is no longer identified in an approved nomination that has not ceased under regulation 2.75A, as required by subclauses 401.212(1) and (3) at the time of its decision.
Therefore, the Tribunal finds that clause 401.212 is not satisfied and the applicant cannot be granted a Subclass 401 visa.
The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Sport stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Sport stream have not been met, the decision under review must be affirmed.
Other Matters
(a)The Alleged Negligence by the Applicant’s Former Migration Agent:
On 2 June 2017[19] the Tribunal received a response to its invitation to comment and to provide information[20] from the applicant’s current representative in which he alleged that the applicant’s former migration agent had mishandled the visa applications lodged with the Department. In particular, he stated:
I have taken instructions from the review applicant and advise that his situation has changed since his last visa application and he will be seeking Ministerial Intervention pursuant to s 351 of the Migration Act to be able to remain permanently in Australia to carry out his current occupation or activity on an ongoing basis. I am instructed that the two previous visa applications were lodged with the assistance of a migration agent, and the visa applicant who has limited English deferred and relied upon the migration agent’s expertise and knowledge of the Regulations. I contacted the former agent this week and enquired why the Distinguished Talent visa (subclass 124) option - a more beneficial visa - was not put to the visa applicant, notwithstanding that his expressed intention was to seek a temporary visa in respect of his occupation or activity. The migration agent informed me that that option was not put to the visa applicant because he had such limited English and that English was a requirement for that visa subclass. The migration agent was wrong in holding this belief as there is no such English language requirement for this visa subclass, and there is provision for a second VAC fee in the absence of the applicant holding functional English, as in his circumstances. While it is an option for the visa applicant to apply offshore for this visa subclass, the firm’s last application for this visa subclass offshore took 9 months, though visa processing times can vary from one post to another.[21]
[Tribunal emphasis]
[19] T1, f.59-60
[20] T1, f.51-54
[21] T1, f.60
In other words, the applicant’s current representative suggested that the former migration agent had mishandled matters by lodging an application for a subclass 401 visa on 5 January 2016, rather than an application for a Distinguished Talent subclass 124 visa.
In assessing this submission the Tribunal has had regard to the general principles of agency in Australian law.[22] Specifically, these indicate that the relationship between principal and agent can arise in several ways, including by agreement, the conduct of the parties or the operation of law. In addition, the Tribunal notes that the Courts have held in the immigration context that the acts or omissions of an agent, who an applicant has engaged to do certain things on their behalf, are not circumstances that can generally said to be beyond a person’s control.[23]
[22] See The Laws of Australia, Legal Online, Geoff Masel (1993 – 2001)
- Accessed 13 July 2017 – T1, f.76
[23] See Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22 ( 5 February 1987) at [18]
The Tribunal agrees that there was no English language requirement in place on 5 January 2016 that would have prevented the applicant from meeting the legislative criteria for the grant of a Distinguished Talent subclass 124 visa on this date.
However, the evidence indicating that the applicant’s former migration agent lodged the application for the subclass 401 visa without regard to the criteria for the subclass 124 visa is limited to the current representative’s submissions about this matter. Notably, there is no direct evidence, such as correspondence between the applicant’s former and current representatives, to confirm the alleged negligence claim that was made to the Tribunal on 2 June 2017.
In any event, even if the Tribunal accepts the current representative’s claims regarding this matter, and as explained to the applicant at the hearing, the Tribunal cannot disregard the requirements of the Act and the Regulations. Notably, the wording of subclauses 401.212(1) and (3), together with the legislative changes introduced by Migration Amendment (Temporary Activity Visas) Regulation 2016[24], do not provide the Tribunal with any discretion to take this matter into account. Indeed, given these changes, there is a degree of futility to the application for review in this case.
[24] Reference number: F2016L01743
Accordingly, whilst this matter may be relevant to the issue of possible Ministerial intervention under section 351 of the Act, the Tribunal does not consider it to be relevant to the issue of whether or not the applicant satisfies the requirements of clause 401.212.
(b)The Tribunal’s Discretion to Adjourn the Review under Subsection 363(1)(b) of the Act:
The Tribunal has also considered whether the claims the representative put forward regarding the applicant’s former migration agent provide a basis for it to adjourn the review in the applicant’s favour under subsection 363(1)(b) of the Act.
In considering whether to exercise its discretion under subsection 363(1)(b) of the Act the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[25] and Manna v Minister for Immigration and Citizenship[26] where the Courts have held that it is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[27] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[28] which also considered this issue.
[25] [2002] FCA 617
[26] [2012] FMCA 28
[27] [2013] HCA 18 (8 May 2013)
[28] [2014] FCAFC 1 (4 February 2014)
The Tribunal notes that in this case the applicant’s representative indicated on 2 June 2017 that the applicant would seek Ministerial intervention under section 351 of the Act in order to remain in Australia permanently. The applicant and his witnesses confirmed this at the Tribunal hearing.
In addition, the applicant gave evidence that his nominator did not lodge a new nomination application for the purposes of his subclass 401 visa prior to 19 November 2016. Indeed, there was no need for the nominator to do so, given that the previously approved nomination was valid until 13 April 2017.
The Tribunal accepts that the relevant parties in this case did not have any prior knowledge of, or reason to anticipate, the legislative changes that came into effect on 19 November 2016.
The Tribunal also acknowledges that the application for review has been pending for some time since it was lodged on 29 April 2016. This situation has arisen due to an increase in the rate of lodgments made to the Tribunal over a number of years, resulting in a significant volume of applications for review. In turn, this has regrettably affected processing times adversely, including the current application for review.
Nevertheless, given the applicant’s evidence at the hearing regarding his subclass 401 visa application and the legislative changes that haven introduced, as noted previously there is a degree of futility to this application for review.
Accordingly, for the reasons set out above and in the particular circumstances of this case, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.
(c)Ministerial Intervention:
The Tribunal has also considered whether the circumstances the applicant has put forward would warrant referral to the Minister under section 351 of the Act. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.
Accordingly, the Tribunal has taken into account the submissions from the applicant’s representative on the question of referral to the Minister. Specifically:
Departing Australia and waiting offshore for an indeterminate period with no guarantee of success given the strict regulatory criteria, is not a practicable or desirable option. [The applicant] has engaged in activities which are of benefit to the community and are in the public interest. He is currently teaching a group of 15 socially disadvantaged children with a multitude of personal and social difficulties for no charge as a contribution to the community. This sports activity helps them to learn about self-control and discipline and helps them to set worthwhile goals in a sociable context with their peers. He currently has 100 students, two of whom have won goal medals in Australia at a national level and will be representing Australia in Thailand in November in international competition. He has also instructed the Kensington police in arm to arm combat. Should he be compelled to leave, absent Ministerial Intervention, his students would be prejudiced as there is a shortage of such instructors at the review applicant’s skill, level and experience.
His achievements as a sportsman to date have been as follows:
•Lumpini Champion (World Champion) 1995 - 1997
•World Amateur Boxing Champion 1997
•WBO, IBF, WBC, WMC: World Champion from 2002-2008
•He also was a K1 Judge 2000-2002
Accordingly, the review applicant will be nominating witnesses who will attest to his international standing as a coach and sportsperson, as well as the prejudice his students would suffer in the absence continued training by a master instructor who has produced Australian level champions in this sport.
The review applicant seeks the Tribunal to recommend to the Minister that he consider exercising his public interest powers given the circumstances of his case, namely:
•the failure of the former agent to adequately inform him of his prospective entitlements to the range of visa options,
•the applicant’s current and future contribution to this sport as a coach to Australian children in a comparatively disadvantaged area of Melbourne,
•the processing delay and uncertainty were he to apply for the Distinguished Talent visa offshore, coupled with the inordinate AAT review processing time in the event of a refusal,
•as the sport of Muay Thai is being seriously considered for the Olympic Games, the review applicant’s skills would be of benefit to Australia in preparing sportspersons in the event that this sport is included in the Olympic Games in the near future,
•the review applicant’s skills in his occupation or activity have been endorsed and verified at a national level by Mr Mathew Reid, President of Muay Thai Australia Victoria.
According to the Minister’s Guidelines for Ministerial Intervention, the applicant must demonstrate that his circumstances are “unique or exceptional”. This phrase should be read disjunctively and the expression “exceptional” which is apposite in his circumstances, only requires him to show that he is out of the ordinary or circumstances not routinely encountered. Specifically, the review applicant would come under “circumstances where exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia” (PAM3 with effect from 29 March 2016). From my experience with this particular Guideline, the test does not seem onerous. I have succeeded in obtaining Ministerial Intervention under this Guideline for applicants seeking residence under the following occupations, namely, Pizza Maker, Kebab Maker, Nurseryperson, Pastry Cook and Wholesale Fruit and Vegetables Salesperson.
Given that the Minister has intervened under this Guideline for a range of occupations, it is submitted that the review applicant’s overall circumstances, his contribution to, and his benefit to Australia far outweighs the contribution of my other clients who have managed to obtain residence through Ministerial Intervention.
[Tribunal emphasis]
However, in this case the applicant’s representative has provided little in the way of evidence to support or substantiate these claims. In addition, although he advised the Tribunal in writing on 7 June 2017[29] that he would attend the scheduled Tribunal hearing on 13 June 2017, the representative did not do so.
[29] T1, f.61-62
As a result, the applicant and his witnesses did not have the benefit of the representative to assist them at the hearing to present their claims for Ministerial intervention. Despite this, the applicant and his witnesses submitted the following evidence to the Tribunal for this purpose:
· A signed statement from the Secretary of the Lumpinee Boxing Stadium stating that the applicant was held the title of former Champion of Flyweight Muaythai Boxer (October 1995) and that he had fought in this stadium on 152 occasions[30];
· A ‘Letter of Certification’ (dated 11 September 2007[31]) from the Director of the Office of Board of Boxing Sports, Sports Authority of Thailand, confirming that the applicant was authorised to act as a registered boxing trainer;
· A reference (dated 25 June 2012[32]) from Mr Mathew Reid, the then Victorian President of Muaythai Australia (‘MTA’). In particular, Mr Reid advised that MTA was the governing body for this sport in Australia and that the applicant was the former World Muaythai Council World Champion and former Lumpinee Stadium Champion. Mr Reid explained that these were the highest accolades an individual could achieve in this sport. He added that the applicant is a highly respected and professional coach whose skills would improve Australia’s competitiveness in this sport and move it closer to becoming an Olympic sport. As a result, Mr Reid endorsed the applicant’s application for a working visa in Australia;
· A ‘Certificate of First Place’ issued to Mr N. Pastas, as well as a photograph of him on the podium, at the 2014 Australian Muaythai Championships on 26 October 2014[33];
· Untranslated news articles, along with the sports magazine in which these articles appear, regarding the applicant’s achievements in boxing[34]; and
· An original copy of ‘International Kickboxer’ (Sept / Oct 2015[35]) referring to the applicant’s achievements in Muay Thai boxing and his current role as a trainer.
[30] T1, f.72
[31] T1, f.73
[32] T1, f.74
[33] T1, f.70-71
[34] T1, f.64-67 & 75
[35] T1, f. 68 & 75
The applicant and his witnesses gave evidence that he had successfully coached many students in Muaythai, including one who had recently won the Queensland Championship. They stated that this student had then qualified for the World Championship with possible entry to either the summer Olympic Games in Tokyo in 2020, or the Winter Olympics in 2022.
In particular, the applicant stated that if he was not able to remain in Australia to coach this and other students, they were likely to be less competitive at the international level. The applicant’s witnesses endorsed this view at the hearing, stating that he was an excellent trainer with a proven record of success as a competitor in this sport.
The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister is warranted, as this would align with Australian community expectations.
However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the relevant legislative criteria.
In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the ‘Minister’s Guidelines on Ministerial Powers’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.
In this case, the applicant presented to the Tribunal as a reasonably articulate and personable individual. The Tribunal also found the applicant and his witnesses to be frank and credible. As noted previously, it accepts that the parties did not have any prior knowledge the legislative changes that came into effect on 19 November 2016.
On the other hand, the Tribunal notes that the repeal of the Subclass 401 with effect from 19 November 2016 is an intended consequence of the legislative changes that have been introduced.
Accordingly, the Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’.
In this case, the Tribunal acknowledges that there is some evidence that points to the applicant’s potential to contribute to the Australian community. However, the evidence is somewhat dated. For example, the statement regarding the applicant’s title as flyweight champion relates to an event that took place in October 1995, which was almost 22 years ago. Similarly, the reference from Mr Reid is approximately 5 years old.
Correspondingly, the applicant’s registration in Thailand as a boxing trainer dates back to 2007, almost a decade ago, and apart from the oral evidence from the applicant and his witnesses, there is no statement from Mr Pastas confirming that the applicant was integral to his placing at the 2014 Australian Muaythai Championships.
In addition, the article in ‘International Kickboxer’ is almost 2 years old and focuses on the applicant’s current role at the ENRG Gym as a trainer and, the other magazine articles before the Tribunal are untranslated.
As a consequence, the Tribunal recognises that there may be scope to argue that Australia stands to receive a cultural or other benefit from permitting the applicant to remain here permanently. However, given the limitations outlined regarding the evidence currently before it, the Tribunal finds that it is not sufficient to establish a case that warrants referral to the Minister.
Finally, the Tribunal places little weight on the representative’s claims regarding his success with other applications before the Tribunal under section 351 of the Act. Not only did the representative provide little details about these matters in his submission, but the Tribunal considers that each case for such intervention must be assessed on the merits of the evidence before it, rather than the success (or otherwise) other applicants may have had with similar applications to the Minister.
Accordingly, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.
Nevertheless, the Tribunal notes that the applicant can still make a request directly to the Minister with additional evidence to support his claims for Ministerial intervention under section 351 of the Act.
CONCLUSION
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 Buljan
Member
0
20
0