ZUBAIR (Migration)

[2017] AATA 2343

ZUBAIR (Migration) [2017] AATA 2343 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad ZUBAIR

CASE NUMBER:  1707483

DIBP REFERENCE(S):  CLF2017/30342

MEMBER:John Cipolla

DATE:13 November 2017

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 13 November 2017 at 9:49am

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 – Religious Worker stream – Subject of an approved nomination – Nomination application refused – Subclass now repealed and closed to new applications

LEGISLATION

Migration Act 1958, ss 65, 140GB

Migration Regulation 1994, r 1.13A, r 1.13B, r 2.75A, Schedule 2, cl 401.212

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 7 April 2017 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 July 2016. 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 case, 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. The delegate refused to grant the visa because the applicant did not meet cl.401.212 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination by a person who at that time was approved as a long stay activity sponsor. The delegate noted that on 13 December 2016 a long stay activity nomination application by Al Jannah Dawah Centre was refused by the Department.

5. The applicant appeared before the Tribunal on 10 November 2017. The Tribunal also received oral evidence from Mr Cliff Wachjo on behalf of Al Jannah Dawah.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at time of application the applicant is the subject of an approved nomination by a person who at that time was approved as a long stay activity sponsor.

   Nomination requirements

9. 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 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.

10. Additionally, this criterion requires either that there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with the nominator, or that it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B of the Regulations.

11. At review hearing on 10 November 2017 the Tribunal explained in detail the relevant time of application criteria for the grant of a Subclass 401 visa. The Tribunal noted that at time of visa application the applicant must be the subject of an approved nomination by a person who at that time was approved as a long stay activity sponsor. The Tribunal noted that on 13 December 2016 the long stay activity nomination application by Al Jannah Dawah Centre was refused by the Department.  The Tribunal noted that this visa subclass was introduced on 24 November 2014 and was repealed and closed to new applications on 19 November 2016. The Tribunal explained in detail to the applicant that on this basis he was incapable of meeting the requirements of cl.401.212 because this subclass of visa had now been repealed and as noted was closed to new applications on 19 November 2016.

12. The applicant made an application for a Subclass 401 long stay activity visa on 20 July 2016. The evidence before the Tribunal indicates that the long stay activity nomination application by Al Jannah Dawah Centre was refused by the Department of Immigration on 13 December 2016. The evidence before the Tribunal indicates that the long stay activity visa 401 subclass was repealed and closed to new applications on 19 November 2016. The Tribunal finds on this basis that the applicant is incapable of meeting time of application criteria relevant to the grant of the visa as the applicant was not the subject of an approved nomination by a person who at time of application was approved as a long stay activity sponsor. Further to this since the application was made for the Subclass 401 visa that this subclass has been repealed and closed to new applications from 19 November 2016.

13. The applicant has only sought to satisfy the criteria for a Subclass 401 visa in the Religious Worker stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Religious Worker stream have not been met, the decision under review must be affirmed.

    DECISION

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

    John Cipolla
    Senior Member