Wong (Migration)
[2021] AATA 537
•19 February 2021
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 ThinCASE 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 the review of the secondary applicants as members of the family unit of the primary applicant. The applicant’s family members were offshore at the time of decision, as such the sponsor (WY Properties Pty Ltd) has standing for review in respect of their visa applications.
The other matter of 1718390 WY Properties Pty Ltd relates to a nomination application in respect to the applicant. However, the Tribunal stood down this matter and adjourned the hearing for a future date.
The applicants were represented in relation to the review by their registered migration agent.
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.
The applicant claims she did not have an opportunity to review the application form prior to it being lodged with the Department, as Mr Praveen did not offer her any such chance. The applicant further claims Mr Praveen did not explain the process to her, nor the consequences to her visa status that would occur by ticking the box indicating automatic withdrawal. The applicant contends she did not give instructions or authorise Mr Praveen to tick the box indicating withdrawal and would not have done so if she was made aware of this question on the application form and its significance. The applicant claimed that Mr Praveen’s actions constituted misconduct.
As a consequence of the withdrawal box being ticked by Mr Praveen, when WY Properties Pty Ltd’s nomination application was refused, the applicant’s visa application was taken to have been withdrawn. Following the applicant discovering the application had been withdrawn, she sought further immigration advice and engaged a Solicitor to issue proceedings in the Federal Circuit Court of Australia on 31 August 2017. This matter is still pending before the Court.
The applicant applied for a bridging A visa in association with her judicial review application on 14 November 2016 and that application was refused by the Department on 11 September 2017 on the basis that she did not satisfy clause 010.211. The Department did not accept the applicant had lodged a substantive visa application in Australia which had not been ‘finally determined,’ notwithstanding the argument that she was challenging the lawfulness of the withdrawal in the Federal Circuit Court.
The applicant sought review of that decision to refuse to grant the bridging A visa to this Tribunal (differently constituted), and that review is still pending, having recently been adjourned.
To regularise her status, the applicant lodged a bridging E visa application on or around 26 September 2017. The applicant was granted a bridging E visa on 6 October 2017 until 20 October 2017. A further bridging E visa application was made on 20 October 2017. On 23 November 2017, the Department invited the applicants to attend an interview in Victoria. The applicant’s representative contacted the Department indicating that the applicants were in regional Western Australia, as such could not attend an in-person interview in Victoria. The applicant’s representative was advised by the Department’s WA Status Resolution team the applicants would instead be interviewed by telephone given how far they reside from Perth.
In February 2018, it came to the representative’s attention that the Department never made contact with their clients for interview and grant of the bridging E visas, and on 14 February 2018, they wrote to the Department urging that they process and grant the bridging E visas immediately. The Department subsequently interviewed and granted a bridging E visa to the applicant on 16 February 2018. The applicant’s spouse, Yoon Seng had departed Australia on or around 24 December 2017 as his father had passed away.
The applicant contends that she was not a substantive visa holder at the date of lodgement of her subclass 457 visa application on 2 March 2018 for reasons outside of her control. During verbal evidence at hearing and as per her statutory declaration provided to the Tribunal, she submits that had her former agent not ticked the box seeking withdrawal of her Temporary Work subclass 457 visa application on the form, without her consent, she would have either had the opportunity to inquire with her employer as to whether the business would lodge another nomination application, and link it to that earlier subclass 457 visa application, or to allow her subclass 457 visa application to be refused and to then seek review of that decision to this Tribunal. It was submitted that as a later nomination was lodged and approved by Wy Properties Pty Ltd, it is highly likely that had the agent not engaged in that misconduct, she would not have found herself in this position of lodging a further subclass 457 visa application as a bridging visa holder. It was further submitted the applicant would likely have been able to pursue her subclass 457 visa application that had been lodged while she was holding a substantive visa with a further nomination application.
The applicant contends that she was therefore only able to lodge this visa application as the holder of a bridging visa for reasons outside of her control, and this has placed her in a deeply unfavourable and unjust position. She contends she did not consent or acquiesce in the withdrawal of her subclass 457 visa application. It was submitted by the applicant’s representative that this factual matrix, considered as a whole, constitutes compelling reasons to grant the visa to the applicant.
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.
The Tribunal accepts the applicant’s evidence that she did not give instructions or authorise Mr Praveen to tick the box indicating withdrawal. It further accepts that she did not have an opportunity to review the application form prior to it being lodged with the Department. The Tribunal further accepts that the applicant would not have instructed Mr Praveen to take the action he did, if she was made aware by ticking the box indicating automatic withdrawal, she would lose any right of review and prevent her from regulating her status in another way. Although the applicant has made claims that Mr Praveen’s actions constituted misconduct, the Tribunal will not make any findings in this respect, as that is a matter for the Office of the Migration Agents Registration Authority to determine.
However, in the circumstances, the Tribunal is satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control.
Compelling reasons for granting the visa
In addition to the situation the applicant found herself in regarding the withdrawal, which the applicant has submitted is a compelling reason for granting the visa, she has put forward several other reasons she has categorised as compelling. These are as follows:
- She has not seen her 7 and 11-year-old children for 2-years;
- She has not seen her husband since he departed Australia;
- She has been in Australia for a protracted period and has formed close ties;
- She has studied in Australia and spent a significant amount of money attaining Australian qualifications;
- She has gained post qualification work experience in Australia;
- The nominated position is in a remote regional area of Western Australia, which is suffering a skills shortage;
- Her contribution will be of benefit to Australia as her skills will be of value and an asset to the regional area;
- The sponsor has had difficulty recruiting and attracting qualified, skilled workers in the remote area, and therefore his business operations have suffered;
- The capacity for a small and long-term business to reopen and flourish in a regional area is also a compelling reason which affects the interests of Australia, after a year of small business closures and lockdowns during COVID-19;
- The applicant has found herself in the situation through no fault of her own.
The Tribunal has considered the reasons put forward by the applicant that she wishes it to consider as compelling. The Tribunal is of the view that cumulatively they are compelling reasons for granting the visa.
Complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held
The applicant has claimed that she has complied with all conditions which applied to her previous substantive visa and all subsequent bridging visas, including 8102, 8303, 8501 and 8516. She has also submitted that she has always maintained adequate health insurance and obtained her Certificate of Completion of the Occupational Trainee Program on 16 September 2016. She has also submitted she has made every attempt to maintain her lawful status since her bridging A visa application was refused and currently holds a bridging E visa. There is no evidence before the Tribunal to suggest the applicant has not complied with all conditions which have applied to any pervious substantive visas and subsequent bridging visas held.
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
Relevantly, criterion 3004(f)(i) requires the Tribunal to consider whether the applicant would have been entitled to be granted the visa if she had applied for it on the day she last held a substantive visa, being 16 November 2016. In the case of Kaur v MIBP [2018] FCCA 141, the Court confirmed that the relevant time for assessing whether an applicant would have been entitled to be granted the visa if they applied for the visa on the date they last held a substantive visa, including the assessment of the time of decision criteria is the date on which the substantive visa was last held.
Having regard to the Court's considerations in Kaur v MIBP [2018] FCCA 141 it would also require that cl.457.223(4)(a) would need to be met which requires that a nomination of an occupation made under s.140GB by an approved sponsor has been approved.
In this matter, the Tribunal is of the view that it is inappropriate to apply cl.3004 (f) to the applicant's circumstances as applied in the decisions of Kaur v MIBP [2018] FCCA 141, Quan v MIBP [2013] FCA 1239 and Hossain (Migration) [2019] AAT 4692 as the applicant's circumstances were distinguishable from those cases.
The Tribunal prefers to favour the interpretation in Zhuang v MICMSMA [2020] FCA 742. Following Zhuang v MICMSMA, the Tribunal is required to consider whether, if an application had been made on the date the visa applicant last held a substantive visa, it could have been supported by an approved sponsor. Colvin J at [53] stated that this was 'a factual question which required a consideration of the position of [the applicant] many years earlier'.
Here, the Tribunal has considered whether the evidence before it demonstrates that the sponsorship and the nomination could have been obtained at the relevant point in time, being 16 November 2016. In this instance, on 12 November 2016 a standard business sponsorship for WY Properties Pty Ltd was lodged with the Department and on 14 November 2016 a nomination by WY Proprieties Pty Ltd for the position of Café or Restaurant Manager was lodged with the Department, identifying the applicant as the nominee.
Importantly, these applications were lodged prior to the applicant’s substantive visa expiring. Although these applications had not been finally determined by the Department before the applicant’s substantive visa expired, she held a bridging visa pending their outcome. Furthermore, the standard business sponsorship was ultimately approved and remains valid until 10 January 2022, and a subsequent nomination by WY Proprieties Pty Ltd for the position of Café or Restaurant Manager listing the applicant as nominee was also approved (TRN: EGOHIU1YHE), and in the Tribunal’s view remains valid in connection with this visa application under review.[1]
[1] Item 6704(15).
The last day the applicant held her last substantive visa was on 16 November 2016. At that time, the applicant had a willing sponsoring employer, who had lodged a nomination application and there was a position open and available to her. The Tribunal is of the view that she was able to meet the skill requirement, having the same qualifications that she holds now – a Diploma of Chef Training, a Diploma of Civil Engineering and several years of experience including training in Australia as a subclass 402 visa holder in the hospitality industry. The Tribunal notes the applicant was being offered a salary of $97,000.00, which circumvented the need for her to provide evidence of ‘vocational English’. On that basis the Tribunal is satisfied that she would have been entitled to be granted the subclass 457 visa on 16 November 2016.
Accordingly, the applicant satisfies criterion 3004.
Is criterion 3005 met?
Criterion 3005 requires that a 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 Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or reg 35AA, reg 42(1A) or (1C) of the Migration (1989) Regulations. The applicant has not previously been granted a visa or entry permit based on any of these listed criteria.
Accordingly, the applicant satisfies criterion 3005.
For these reasons, the applicant satisfies schedule 3 criteria 3003, 3004 and 3005 for the purposes of cl 457.211.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.
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-Wake
MemberATTACHMENT - 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.
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