Wong (Migration) - [2021] AATA 537

Wong (Migration) [2021] AATA 537 (19 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Mun Yee Wong
Mr Joey Yan Qi Thin
Ms Winnie Zhi Sin Thin
Mr Yoon Seng Thin
CASE NUMBER:  1825930
HOME AFFAIRS REFERENCE(S):          BCC2018/1008548
MEMBER:Cathrine Burnett-Wake
DATE:19 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·Schedule 3 criteria 3003, 3004 and 3005 for the purposes of cl 457.211 of Schedule 2 to the Regulations.

Statement made on 19 February 2021 at 1:08pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – no substantive visa held at time of application – factors beyond applicant’s control – without applicant’s consent, agent ticked box indicating applicant would withdraw visa application if nomination application refused – new nomination application made and approved – compelling reasons for granting visa – long separation from family, study and work in remote area – entitled to be granted visa on day last substantive visa held – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.211(b)(ii), 457.223(4)(a), Schedule 3, criterion 3004(c), (f)(i)
CASES
Hossain (Migration) [2019] AAT 4692
Kaur v MIBP [2018] FCCA 141
Quan v MIBP [2013] FCA 1239
Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655
Zhuang v MICMSMA [2020] FCA 742

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 Home Affairs on 8 August 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 2 March 2018. 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). 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 satisfy only the secondary criteria.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl 457.211(b)(ii) because she did not meet Schedule 3 Criterion 3004(c) as it was found that she was not the holder of a substantive visa because of factors beyond her control.
The applicant appeared before the Tribunal on 18 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The hearing was a combined hearing with related matters 1825927 WY Properties Pty Ltd and 1718390 WY Properties Pty Ltd.
The matter of 1825927 WY Properties Pty Ltd relates to…

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.

Continue reading Wong (Migration)

Details

AGLC: Wong (Migration) [2021] AATA 537
Case: [2021] AATA 537
Decision Date: 19 February 2021

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) Subclass 457 visa. The applicant, who did not hold a substantive visa at the time of application, sought to rely on Schedule 3 criteria to satisfy the visa requirements. The Tribunal was required to determine whether the applicant met Schedule 3 criteria 3003, 3004, and 3005, particularly in circumstances where the applicant's migration agent had, without her consent, ticked a box indicating she would withdraw her visa application if the nomination application was refused.

The central legal issue was whether the applicant's failure to hold a substantive visa was due to factors beyond her control, as required by Schedule 3 criteria. Specifically, the Tribunal had to consider whether the actions of the migration agent, in ticking the withdrawal box without the applicant's consent, constituted a factor beyond the applicant's control, thereby allowing her to satisfy the Schedule 3 criteria. The Tribunal also had to assess whether there were compelling reasons for granting the visa and if the applicant had complied substantially with the conditions of her previous visas.

The Tribunal reasoned that while generally the actions of a migration agent are attributed to the applicant, the specific conduct in this case – an agent ticking a withdrawal box without consent – went beyond mere inaction and constituted an affirmative action that placed the applicant in a position of not holding a substantive visa. This action, the Tribunal found, was a factor beyond the applicant's control, aligning with the policy intention of Schedule 3 criteria to address circumstances where an applicant's visa status is affected by events outside their influence. The Tribunal noted that while policy examples often refer to deregistered agents, the principle of an agent's actions being beyond the applicant's control could extend to registered agents acting without consent. The Tribunal concluded that the applicant met Schedule 3 criteria 3003, 3004, and 3005.

Consequently, the Tribunal remitted the applications for Temporary Business Entry (Class UC) visas for reconsideration. The direction was that the first named applicant met the relevant Schedule 3 criteria for a Subclass 457 visa. The Tribunal also noted that it did not have jurisdiction to review the applications of the other named applicants as they were located outside Australia at the time of merits review and had different review rights.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets Schedule 3 Criteria 3003, 3004 and 3005.Does the applicant satisfy the relevant Schedule 3 criteria? Relevantly to this matter, cl 457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl 457.211 so long as the last substantive visa they held was not a Subclass 771 (Transit) or special purpose visa and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision. In the present case, the applicant did not hold a substantive visa at the time of making the visa application and did not previously hold a Subclass 771 or special purpose visa.Is criterion 3003 met? Criterion 3003 applies to certain applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant or were on 31 August 1994 the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.Is criterion 3004 met? Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant. In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; the applicant intends to comply with any conditions of the visa; and, if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia. Factors beyond her control On 14 November 2016, the applicant lodged a Temporary Work subclass 457 visa application on the basis of a nomination by WY Properties Pty Ltd. The applicant’s then migration agent, Mr Goyal Praveen, had, at the time he prepared her Temporary Work subclass 457 visa application, ticked the box which indicated that she would withdraw her visa application if the application for sponsorship or nomination was refused.

Decision

Reasons for decision

In respect to the second, third and fourth named applicants as members of the family unit to the first named applicant, the Tribunal does not have jurisdiction to review their applications as part of this decision as they have different review rights to that of the first named applicant as they were located outside of Australia at the time of merits review. The matter of 1825927 WY Properties Pty Ltd relates to the review of the secondary applicants as members of the family unit of the first named applicant, and a separate decision for them will be prepared for that matter.DECISION The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:·Schedule 3 criteria 3003, 3004 and 3005 for the purposes of cl 457.211 of Schedule 2 to the Regulations.Cathrine Burnett-WakeMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994 Schedule 3Additional criteria applicable to unlawful non-citizens and certain bridging visa holders…3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i)an illegal entrant; or(ii)the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii)any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i)the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii)the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i)in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii)in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:(a)this Schedule; or(b)Schedule 6 of the Migration (1993) Regulations; or(c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

Ratio Decidendi

Legal Principle Established

Policy set out in [Sch3] Additional criteria applicable to unlawful non-citizens and certain bridging visa holders relevantly provides:Migration agent inaction Cases arise where an applicant advises that their agent or lawyer was responsible for not making the application prior to their substantive visa ceasing. Under law, the actions of the applicant’s agent or lawyer are taken to be those of the applicant. Failure by an agent or lawyer to act in their client’s best interests may be grounds for the client to take legal action, but would not normally be grounds for finding that the applicant became an illegal entrant, or a person in Australia without a substantive visa, due to factors beyond their control. Again, these types of cases need to be considered on their facts. If a migration agent has been deregistered, it may be reasonable to find that negligent action by the agent that has affected the applicant was a circumstance beyond the applicant’s control. The Tribunal has considered the facts that led the applicant to not being a holder of a substantive visa at the time she applied for her Subclass 457 visa. The Tribunal notes policy provides that cases arise where there is ‘migration agent inaction’ and an applicant advises that their agent or lawyer was responsible for not making the application prior to their substantive visa ceasing would not normally be grounds for finding that the applicant became a person in Australia without a substantive visa, due to factors beyond their control. However, this is not the situation in the current case. It’s not a matter of ‘migration agent inaction’ to lodge a visa within time. Rather, and as the applicant’s representative correctly pointed out in their submission, the issue in this case is not the migration agent’s inaction so much as his action taken without her consent – to complete her visa application form ticking a box consenting to withdrawal of her visa application, triggering the cessation of her bridging visa, and losing any review rights in respect of that visa application. Without those actions of her agent, Ms Wong would not have found herself in the position of lodging a further subclass 457 visa application without a substantive visa. The Tribunal notes that policy discusses negligent action by the agent that has affected the applicant could be circumstance beyond the applicant’s control. Although this policy example is based on an agent that is no longer registered, the Tribunal is of the view that actions whilst an agent is still registered could still be considered and would be in line with the policy intention. As per Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655 (24 May 2005) the Tribunal must give consideration of the more complex factual question of whether bad or no advice in all the circumstances might support a conclusion that factors beyond the applicant’s control were the cause of the problem with which an applicant was confronted with.