Vatalesau (Migration)

[2019] AATA 4279

Vatalesau (Migration) [2019] AATA 4279 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Samu Tikomaibaravi Vatalesau
Mrs Mere Tinai Tikomaibaravi
Mr Ronnie Jonathan Tikomaibaravi

CASE NUMBER:  1711739

HOME AFFAIRS REFERENCES:             BCC2015/1402428

CLF2015/57333

MEMBER:Lilly Mojsin

DATE:3 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

Statement made on 03 October 2019 at 11:47am

CATCHWORDS

MIGRATION – refusal – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – religious worker stream – applicant not identified in nomination of occupation or activity – sponsor did not satisfy prescribed criteria – visa subclass repealed – waive the rights to a hearing – sponsor granted approval for successor subclass – no approved nomination – circumstances outside applicants’ control – appropriate to refer to Minister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 410.212

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 18 May 2017 to refuse to grant the visa applicants Temporary Work (Long Stay Activity) (Class GB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 May 2015. At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

3. 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.

4. In the present review, the first named applicant (the applicant) is seeking the visa in the Religious Worker stream. This stream provides for the temporary entry of persons who will be full-time religious workers in Australia.

5. The delegate refused to grant the visas because the applicant did not meet cl.401.212 of Schedule 2 to the Regulations because the applicant was not identified in a nomination of an occupation or activity approved under s.140GB of the Act.

6. The applicants were represented in relation to the review by their registered migration agent.

7. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 15 August 2019 at 13.30. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

8. On 13 August 2019 the applicant’s advisor wrote to the Tribunal requesting that the Tribunal make a decision on the information before it and waive the applicant’s rights to a hearing. The applicant did not attend the hearing.

9. The applicant further requested that if the Tribunal was unable to make a favourable decision that the application be referred to the Minister as the applicants have been disadvantaged as a result of migration changes.

10. On 19 August 2019 the Tribunal received further information from the applicant’s advisor, attaching approval of Temporary Activities Sponsorship, granted 19 August 2019, to Sydney All Nations Baptist Church Incorporated, the applicant’s sponsor.

11. The Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant has waived his rights to attend the hearing and present evidence and arguments in support of the application for review.

12. In these circumstances the Tribunal has decided to make its decision on the review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Clause 401.212 requires that an applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased (see r.2.75A). That 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.

14. Sydney All Nations Baptist Church Incorporated [sponsor] lodged an application for approval as a Long Stay Activity Sponsor (GB 401) under the Religious Worker stream on 3 June 2016. The delegate made the decision to refuse the nomination on the basis that prescribed criteria set out in r.2.60L was not satisfied by the sponsor in order for the applicant to be approved as a Long Stay Activity Sponsor.

15. On 19 August 2019 the Department of Home Affairs granted the sponsor approval as a Temporary Activities Sponsor, from 19 August 2019 to 19 August 2024.  

16. By submission dated 13 August 2019 the applicant’s agent acknowledged that the subclass 401 visa category was repealed as of 19 November 2016.

17. The Tribunal notes that although Sydney All Nations Baptist Church Incorporated is now approved as a sponsor for the purposes of the successor subclass to subclass 401, the subclass 408 visa, this would not satisfy cl.401.212, as any nomination for a subclass 401 visa in the Religious Worker stream must meet the criteria in r.2.72J(5) (as required by cl.401.241) and r.2.72J was repealed as of 19 November 2016.

18. Based on the above, the Tribunal is satisfied that there is no approved nomination of the applicant for a subclass 401 visa, and the applicant is unable to satisfy cl.401.212(1) to (3).  Therefore the applicant does not meet cl.401.212. Nor is there any prospect the applicant  will be able to do so in future, given the repeal of the subclass 401 visa category. Further, a nomination approved for a subclass 408 visa cannot be used to satisfy the subclass 401 criteria in cl.401.212.

19. The Tribunal therefore finds that the applicant does not meet the criteria for the grant of a subclass 401 visa in the Religious Worker stream. The Tribunal is also satisfied that the applicant did not make any claims against any other stream within subclass 401.

20. Further, the Tribunal must affirm the decisions to refuse the second named and third named applicants (the applicant's wife and child) subclass 401 visas, as they cannot meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 401 visa, and there is no evidence that they meet the primary visa criteria.

21. The applicant has sought that the Tribunal refer this application to the Minister for Home Affairs. The Minister has a personal power to intervene and grant the visa, pursuant to s.351 of the Act, after an unsuccessful review application.

22. The Tribunal notes that the abolition of the subclass 401 visa category was outside the applicants' control. The relevant legislation does not take into account the applicants' circumstances, or that when applied to the applicants' circumstances the results are unintended and particularly unfair or unreasonable.

23. The Tribunal is satisfied that it is appropriate, in this instance, to refer this application to the Minister.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Temporary Work (Long Stay Activity) (Class GB) visas.

    Lilly Mojsin
    Member