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

1. 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).

2. 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.

3. 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

4. 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).

5. 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.

6. To deal with his application for review, the Tribunal reconsidered whether he meets those criteria.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence considered

7. 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.

8. At hearing, Mr Yang gave evidence and Ms Lyon made submissions.

   Factors beyond his control

9. 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.

10. 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

11. 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].

12. 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.

13. The Tribunal takes into account that Mr Yang was without a substantive visa through no fault of his own. Arguably, that means it would not further the purposes of Schedule 3 if the visa is not granted in this case. That weighs heavily in favour of finding there are compelling reasons to grant it.

14. Mr Yang’s sponsor, Hope Uniting Church, provided a letter describing Mr Yang’s personal qualities, academic qualifications, his duties as deacon of the Church and the importance of his work to the church community. It enclosed a petition signed by 73 members of the congregation attesting to his character and “our sincere need for a role model like Mr Yang”. For the purpose of this proceeding, the Tribunal accepts there is a continuing need for a person to perform the duties of the position for which he was sponsored and that he is a valued employee and member of the church community. However, Mr Yang’s qualifications, experience and qualities are not unique and the Tribunal infers others could perform the same duties and contribute in a similar manner to the church community.

15. In addition, Mr Yang agreed he could continue to perform similar work in Korea and he could continue his career if the visa were not granted.

16. Mr Yang told the Tribunal he is the oldest son in his family of origin and has particular obligations for the care of his elderly mother. When he applied for the visa, his mother was very unwell and he spent significant amount of time caring for her. Those caring responsibilities might have been a compelling reason to grant the visa at that time. However, Mr Yang’s mother went to Korea in late December 2017 and currently has no plans to return. It follows that it is not necessary at the time of writing for the visa to be granted for Mr Yang to satisfy his obligations to her. Indeed, his mother’s continuing illness could be characterised as a reason for Mr Yang to return to Korea, rather than a reason to grant the visa so that he could remain in Australia.

17. Mr Yang told the Tribunal his personal circumstances had recently changed. He said he had been in a relationship with an Australian citizen for about eight months and that they registered their marriage in the week before the hearing. He said they planned to have a wedding ceremony in February 2018.

18. He firstly said that if the visa is not granted his wife would have to leave her career in Australia as a nurse to return to Korea with him. However, when questioned, he said his wife is originally from Korea, had previously worked there as a nurse and could do so again. The Tribunal suggested she might have to leave her job in that case but not her career. He agreed but said he does not feel that it is right to ask her to return to Korea with him if the visa is not granted. He then said that, if necessary, he would go to Korea by himself because in Korean culture it is up to the male to provide for the family. He said that they would likely be separated if the visa were not granted for that reason. The Tribunal notes that this is inconsistent with his first assertion that his wife would have to leave her career.

19. The Tribunal takes from Mr Yang’s evidence that his wife has a strong preference for remaining in Australia and would prefer to stay in Australia in her current employment. However, there is no barrier to her returning to Korea with Mr Yang if the visa was not granted and, in particular, she could obtain similar employment. Whether she would accompany Mr Yang if he returned to Korea is a matter for them to decide as a couple. They would be either separated or his wife would leave her current employment. In the Tribunal’s view, neither case is sufficient to be a compelling reason to grant the visa on its own.

20. The Tribunal also takes into account that Mr Yang might apply for a partner visa onshore on the basis of his relationship with his wife and, if granted, they would be able to remain in Australia rather than returning to Korea. This would weigh heavily against finding compelling reasons to grant the subclass 401 visa except that he would have to meet a similar criterion. In his case, the Minister would have to be satisfied there are compelling reasons at the date of decision not to apply criterion 3001 in Schedule 3 (which requires that he have a substantive visa on the day of application or in the preceding 28 days).

21. In conclusion, the Tribunal gives significant weight to the circumstances that led to Mr Yang being without a substantive visa and notes that he might not meet a similar criterion if he were to apply for a visa on the basis of his relationship with his wife. However, the Tribunal infers another person could fill the nominated position and Mr Yang could perform similar work in Korea. His obligation to care for his mother is no longer a reason to grant the visa and his wife could choose to return with him to Korea if it were not granted and to continue to work as a nurse. On balance, taking all those circumstances into account, the Tribunal does not find that there are compelling reasons to grant the visa.

    Conclusion

22. 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.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa.

    Kate Timbs
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 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.

    …