YANG (Migration) - [2018] AATA 1181

YANG (Migration) [2018] AATA 1181 (12 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jeong Cheol YANG
CASE NUMBER:  1622079
DIBP REFERENCE(S):  CLF2017/245
MEMBER:Kate Timbs
DATE:12 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.
Statement made on 12 March 2018 at 9:52am

CATCHWORDS
Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Whether the applicant satisfies Criterion 3004 – Circumstances beyond the applicant’s control – Migration agent may not have exercised reasonably care – Whether there are compelling reasons for granting the visa – Compelling reasons not established
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 402.211(b), Schedule 3, Criterion 3004
CASES
Anani v MIMAC [2013] FCCA 1140

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 to refuse to grant Mr Yang a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).
Mr Yang applied for the visa on 30 September 2016. On 6 December 2016, the delegate refused to grant the visa on the basis that Mr Yang did not satisfy clause 401.211(b) of Schedule 2 to the Migration Regulations.
Mr Yang applied for review of that decision on 22 December 2016. The Tribunal heard the application for review on 30 January 2018.
RELEVANT LAW
The relevant law is the Act and the Regulations. To be granted the visa, Mr Yang must satisfy the relevant criteria in Part 401 of Schedule 2 (as it was when he applied for the visa).
Mr Yang did not hold a substantive visa at that time and, to satisfy clause 401.211(b) he must satisfy specified criteria in Schedule 3. Criterion 3004 applies in his case and requires that, among other things:
·he was without a substantive visa because of factors beyond his control; and
·there are compelling reasons for granting the visa.
To deal with his application for review, the Tribunal reconsidered whether he meets those criteria.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence considered
The Tribunal considered documents in the Department of Home Affairs’ visa application file and evidence and submissions provided by Mr Yang and his migration agent, Ms Jackie Lyon.
At hearing, Mr Yang gave evidence and Ms Lyon made submissions.
Factors beyond his control
Mr Yang held a student visa until 30 August 2016 to attend a course at Hope College. He told the Tribunal he saw his migration agent and completed the visa application on 25 August 2016. He was not concerned to follow up that the agent had lodged the form because he mistakenly believed his student visa did not end until the end of the course in October 2016. Ms Lyon submitted that was a reasonable expectation because, in the usual course,…

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 YANG (Migration)

Details

AGLC: YANG (Migration) [2018] AATA 1181
Case: [2018] AATA 1181
Decision Date: 12 March 2018

CaseChat Overview and Summary

This matter concerned an application for review by Mr Yang of a decision not to grant him a Temporary Work (Long Stay Activity) (Class GB) visa. The Administrative Appeals Tribunal (the Tribunal) was required to reconsider whether Mr Yang satisfied the criteria for the visa, specifically Criterion 3004 of Schedule 3 of the Migration Regulations 1994. The Tribunal considered evidence from Mr Yang and his migration agent, Ms Jackie Lyon, as well as documents from the Department of Home Affairs.

The primary legal issues before the Tribunal were whether Mr Yang was without a substantive visa due to factors beyond his control, and whether there were compelling reasons for granting the visa. Criterion 3004 requires the Minister to be satisfied of both these matters, among others, for a visa to be granted in certain circumstances, particularly when an applicant is without a substantive visa. The Tribunal had to determine if the actions or inactions of the migration agent constituted a factor beyond Mr Yang's control, and to assess the subjective circumstances to ascertain if compelling reasons existed for the grant of the visa.

The Tribunal found that Mr Yang was without a substantive visa because of factors beyond his control, specifically inferring that his migration agent did not lodge the visa application in time due to a mistaken belief about the expiry date of his student visa. This belief, shared by Mr Yang, was considered a factor external to him and therefore beyond his control. However, the Tribunal determined that there were no compelling reasons to grant the visa. The concept of "compelling reasons" was understood as a question of fact and degree, requiring a subjective assessment of all circumstances and the purpose of the relevant provisions, which are integrity measures designed to encourage lawful presence in Australia.

Ultimately, as Mr Yang did not satisfy both limb (c) and limb (d) of Criterion 3004, he did not satisfy clause 401.211(b) of the Migration Regulations. Accordingly, the Tribunal affirmed the decision not to grant Mr Yang 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

To deal with his application for review, the Tribunal reconsidered whether he meets those criteria.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence considered The Tribunal considered documents in the Department of Home Affairs’ visa application file and evidence and submissions provided by Mr Yang and his migration agent, Ms Jackie Lyon. At hearing, Mr Yang gave evidence and Ms Lyon made submissions. Factors beyond his control Mr Yang held a student visa until 30 August 2016 to attend a course at Hope College. He told the Tribunal he saw his migration agent and completed the visa application on 25 August 2016. He was not concerned to follow up that the agent had lodged the form because he mistakenly believed his student visa did not end until the end of the course in October 2016. Ms Lyon submitted that was a reasonable expectation because, in the usual course, visas of the kind granted to Mr Yang had the same end date as the relevant course. She said she did not understand why that was not the case for his student visa. The Department’s policy reflects a plain reading of the term “because of factors beyond the applicant's control” and provides that there must be factors external to the visa applicant that caused them to be without a substantive visa. In this case, the Tribunal finds Mr Yang took the usual steps to apply for the visa before the end of his student visa and infers the migration agent did not apply for the visa in this case because he or she also believed it expired at the end of his course. Arguably, the migration agent did not exercise reasonable care and the Tribunal is satisfied that factor was external to Mr Yang. It was beyond his control and caused him to be without a substantive visa. He therefore satisfies the criterion in the first dot point above. Compelling reasons for granting the visa The term “compelling reasons for the grant of the visa” is not defined in either the Act or the Regulations. Whether a circumstance or reason is compelling is a question of fact and degree for the Tribunal. It requires a subjective assessment that takes into account all of the circumstances and the purpose of the relevant provision.[1][1] Anani v MIMAC [2013] FCCA 1140 (Judge Barnes, 26 July 2013) at [34]. While the Court’s comments were made in relation to s.41(2A) and r.2.05(4) in particular, they appear equally as applicable to where those terms appear elsewhere in the Act or Regulations. See also Whitlam J’s comments in McNamara v MIMIA [2004] FCA 1096 (Whitlam J, 25 August 2004) at [10]. Schedule 3 applies to unlawful non-citizens and some persons holding bridging visas and its provisions are integrity measures. They are designed to encourage those with a lawful basis for staying in Australia to ensure they have authority to do so and to discourage others from remaining in Australia without authorisation and possibly acquiring visa eligibility while remaining without lawful permission. Various exceptions recognise that there are circumstances where the strict application would not further those purposes or would be unfair in the particular circumstances of the case.[2] [2] See the Minister’s policy at PAM3 at Migration Regulations Schedules – Schedule 3.

Decision

Reasons for decision

Mr Yang was without a substantive visa because of factors beyond his control. However, the Tribunal has found there are no compelling reasons to grant the visa. In that case, he does not satisfy criterion 3004 and therefore does not satisfy clause 401.211(b). The Tribunal will affirm the decision under review for that reason.DECISIONThe Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.Kate TimbsMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 3 …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. …

Ratio Decidendi

Legal Principle Established

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