1413284 (Migration) [2015] AATA 3616 (4 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Vaseemuddin Mohammed
CASE NUMBER:	1413284
DIBP REFERENCE(S):	BCC2014/1014911 
MEMBER:	Mary-Ann Cooper
DATE:	4 November 2015
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 04 November 2015 at 11:41am

statement of decision and reasons
application for review
1.  	This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
2.  	The visa applicant applied for the visa on 17 April 2014.
3.  	At the time the visa 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). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
4.  	The delegate refused to grant the visa on 15 July 2014 on the basis that cl.457.211(b) was not met because the applicant did not meet the relevant Schedule 3 criteria.
5.  	The applicant appeared before the Tribunal on 6 August 2015 to give evidence and present arguments. 
6.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
7.  	The issue in this case is whether, at the time of application, the applicant meets the requirements of cl.457.211, particularly the Schedule 3 criteria 3003, 3004 and 3005.
8.  	An additional issue arises with respect to cl.457.223(4) which is whether, at the time of decision, the applicant meets the requirements of paragraphs 457.223(4)(a) of the Regulations. Each issue is dealt with separately below.
9.  	On 28 May 2015 the Tribunal wrote to the review applicant in accordance with s.359A of the Act inviting him to comment on or respond in writing to information that it considered would be part of the reason for affirming the decision under review, that is, that the nomination in respect of him had ceased by operation of law on 16 May 2015. It also invited him, under s.359(2) of the Act, to provide information demonstrating that he is the subject of an approved nomination and that he satisfied cl.457.211 at time of application, in particular that he satisfied, or did not have to satisfy, Schedule 3 criteria 3003, 3004 and 3005. Copies of the legislation were attached to the invitation.
10.  	Following a request for an extension of time, the applicant responded on 26 June 2015 stating he had instructed his representative to lodge his visa application but that the representative had failed to do so. He also rejected the representative’s claim in the submission made to the Department that he had forgotten to lodge his application on time, stating that it was the representative’s mistake. He further claimed that his employer had promised but had failed to lodge a new nomination in respect of him. He sought an extension of time within which to find a new sponsor.
11.  	The Tribunal had allowed the applicant until 15 October 2015 to provide any further information in support of his application however there has been no further communication from him.  In the circumstances, the Tribunal has considered whether it should further delay its decision. In Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 the Courts have held that the Tribunal is not required to indefinitely defer its decision making processes. Indeed, in Ghori v Minister for Immigration and Citizenship [2011] FCA 759 the Court held that it was reasonable for the Tribunal, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process” [at 22].   The Tribunal has also had regard to remarks made by the High Court of Australia when considering the Tribunal’s discretion in relation to adjournments: MIAC v Li [2013] HCA 18.  The Court discussed a range of factors that should be considered.   Among other things the Court said that “it may be accepted that the Tribunal is to act with some efficiency” (per Hayne, Kiefel and Bell JJ. at [80]); and that the Tribunal “is entitled to have regard to legislative objectives including timeliness in its processes” (per French CJ. at [10])).  
12.  	Accordingly, in the circumstances of this particular case, the Tribunal does not consider it appropriate to postpone its decision making any further and has proceeded to make its decision on the basis of the information and evidence before it. 
Does the applicant satisfy the relevant Schedule 3 criteria?
13.  	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 one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
14.  	As recorded in the delegate’s decision, a copy of which was provided with the review application, and as confirmed by Departmental records and the applicant at the hearing, he 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. At the time of this application he was in Australia as the holder of a Bridging visa E (WE-050), his last substantive visa, a subclass 485 visa, having ceased on 20 January 2014. 
15.  	Accordingly, the Tribunal finds that the applicant was in Australia on 17 April 2014, the date of the visa application, and that he did not hold a substantive visa on that date. As the applicant was in Australia at the time of application, cl.457.211 applies to him. He is therefore required to meet Schedule 3 criteria 3003, 3004 and 3005 under cl.457.211(b)(ii).
Is criterion 3003 met?
16.  	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 to him.
Is criterion 3004 met?
17.  	The requirements of Item 3004 depend, to some extent, on whether the applicant’s circumstances fall within cl.3004(a) or cl.3004(b), that is whether:
•	The applicant ceased to hold a substantive visa or criminal justice visa on or after September 1994 (cl.3004(a)) or
•	The applicant entered Australia unlawfully on or after September 1994 and has not subsequently been granted a substantive visa (cl.3004(b))
18.  	As noted above, the applicant ceased to hold a substantive visa on 20 January 2014.  As a result the Tribunal finds that review applicant ceased to hold a substantive visa after 1994 and cl.3004(a) applies in this case.
19.  	Criterion 3004 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 been able to satisfy the criteria or be granted the visa on the day he or she last held a substantive or criminal justice visa or last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and that the last visa or entry permit held (if any) 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. 
20.  	In a written submission to the Department, the applicant’s representative claimed, in summary, that the applicant had “inadvertently misremembered” the expiry date of his visa, that there was nothing to indicate he would not have met the subclass 457 visa criteria at the expiry date of his substantive visa, that there was no evidence he had failed to comply, or would fail to comply, with any of his visa conditions and that there were compelling reasons for the grant of the visa on the basis of the employer’s letter stating that he highly valued the applicant’s skills and his business would be adversely affected by his departure. 
21.  	As recorded in the delegate’s decision, the delegate did not accept that the applicant had demonstrated that he was not the holder of a substantive visa because of factors beyond his control or that there was sufficient evidence of compelling reasons for the grant of the visa. Consequently the applicant was found not to satisfy cl.457.311 and the visa was refused.
22.  	At the hearing the applicant claimed that he had been ill around the time of his visa expiry and had been unable to follow it up. He said his employer had applied for and been granted sponsorship and had yet to lodge a nomination application but that in early February 2014, when he had recovered, he had gone to a lawyer with his employer and paid him the money to file the necessary applications. He provided an invoice from the legal representative who he and his employer had consulted which demonstrated the payment of $3000 by the employer on 15 April 2014. The Tribunal noted that this was invoiced to his employer and not to him, however the applicant insisted it was payment for his visa application as well. The Tribunal notes the reference in the invoice to his name, however it does not specify whether payment was made for a visa or nomination application in respect him, or both. The applicant said he asked several times about his visa and his employer kept telling him that everything was being taken care of however he later learned that this was not the case. He said he had trusted both the representative and the employer but had been let down by both of them. The Tribunal checked the Department’s records which confirmed that the sponsorship for the applicant’s then employer was approved on 7 April 2014 and the nomination in respect of the applicant was approved on 16 May 2014. The Tribunal accepts that the applicant thought his visa application would also be made but noted that in any event, at that date, his visa had already expired. The applicant responded that he thought it would be alright because it was within 28 days of the expiry of his substantive visa.  He said that he went to the Department around 17 April 2014 to get the appropriate stamps/labels on his passport and was then told that no visa application had been made. He then immediately made this visa application. 
23.  	In considering criterion 3004(c), the Tribunal has had regard to the judgment in Su & Ors v Minister for Immigration & Anor  [2007] FMCA 318 of Smith FM who referred to a judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162 and stated at paragraph 17: 
The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring.  The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person.  A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.  A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.  
24.  	The Tribunal has also had regard to the Department’s policy in this respect which provides as follows:
14 Applicant’s circumstances must have been beyond their control 

14.1 Two separate considerations 
Criteria 3003(c) and 3004(c) require the decision-maker to be satisfied that the applicant became an illegal entrant or a person without a substantive visa because of factors beyond the applicant’s control.
 
Two requirements must be satisfied: 
•	there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and
•	those factors must have been beyond the applicant’s control.

The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa. 

14.2 Meaning of ‘beyond the applicant’s control’ 
The phrase ‘factors beyond the applicant’s control’ is to be given its natural meaning and considered against all relevant circumstances of the applicant. 

The test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances that were “external” to the applicant and over which they had no control. 

Some circumstances may clearly meet the test, for example where a serious accident or illness renders the applicant incapable of making an application. 
Other situations will be more difficult to assess, for example where an applicant claims to have: 
•	been unaware that they were an illegal entrant or without a substantive visa or
•	misunderstood the period during which their visa was in effect or
•	misunderstood the conditions attached to their visa.

Claims by an applicant that they were unaware they were an illegal entrant, or without a substantive visa, should be considered on a case by case basis. The mere fact that an applicant makes such a claim would not, on its own, constitute a circumstance beyond their control. In some instances, an applicant’s lack of awareness may, however, be attributable to a circumstance over which the applicant had no control, for example, when the applicant’s visa was not correctly evidenced and the visa ceased on a date earlier than the date specified on the visa label.
 
Similarly, claimed misunderstandings relating to when a visa is in effect or to the conditions attached to a visa should be considered on a case by case basis. It is reasonable to assume that a visa holder is aware of the period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is when file records indicate that incorrect advice was given by the department.

14.5 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.
25.  	The Tribunal acknowledges that it is not bound by the guidelines and it has considered the individual circumstances of the applicant. The issue is whether it was beyond the applicant’s control to have failed to lodge an appropriate visa application before the expiry of his last substantive visa. 
26.  	Having seriously considered the applicant’s claims in this regard, on the information before it, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of application because of factors beyond his control. Rather, the Tribunal considers that it was within the applicant’s control to understand the validity period of his visa and to take appropriate steps to ensure that the present visa application was lodged prior to the expiry of that period. The Tribunal acknowledges the applicant’s claim at the hearing that he was ill at the relevant time however no evidence has been provided to support his claims in this regard. The Tribunal also notes that he has been in Australia since 2007 on various visas and was aware of the need to take action before his visa expired. There is no claim or evidence that he contacted the Department about the progress of his visa application until well after his visa expiry date. Similarly there is no support from his employer as to his claims regarding the sequence of events. 
27.  	For these reasons the Tribunal is not satisfied that his failure to address and deal with the validity period of his visa was a matter that was beyond his control. As such, the Tribunal does not accept that the requirements of cl.3004(c) are met. 
28.  	As the applicant does not meet Schedule 3 criterion 3004(c) he does not meet Schedule 3 criterion 3004. It is therefore unnecessary to decide whether he meets the other criteria in Schedule 3 criterion 3004. 
29.  	It follows that the applicant does not meet Schedule 3 in its entirety and therefore does not meet cl.457.211(b). 
30.  	The Tribunal therefore finds that the applicant does not meet cl.457.211 at the time of application.
Requirement for an approved nomination
31.  	Clause 457.223(4)(a) requires that at the time of decisions there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
32.  	As noted above, information before Tribunal is that the nomination which was approved in respect of him in 2014 ceased by operation of law on 16 May 2015 (r.2.75). The applicant also told the Tribunal that he no longer works for the nominating employer.
33.  	On the basis of the above information, the Tribunal finds that there is no approved nomination of the applicant’s occupation under s140GB of the Act that has not ceased.
34.  	It follows that the requirements of cl.457.223(4)(a) are not met and, as this is an essential requirement for the grant of a subclass 457 visa, the applicant therefore does not qualify for the visa.  
CONCLUSION
35.  	Therefore, at the time of application the applicant does not satisfy criterion 3004 for the purposes of cl.457.211. At the time of decision he does not satisfy cl.457.223. 
36.  	It follows that, as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed. 
37.  	For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
decision
38.  	The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Mary-Ann Cooper
Member

ATTACHMENT  -  claUSE 457.223 (extract)
457.223
…

Standard business sponsorship
…
(4)	The applicant meets the requirements of this subclause if:
(a)	each of the following applies:
(i)	a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; 
(ii)	the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; 
(iii)	the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)	the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)	either:
(i)	the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)	each of the following applies:
(A)	the applicant is employed to work in the nominated occupation; 
(B)	if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person; 
(C)	if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)	the Minister is satisfied that:
(i)	the applicant’s intention to perform the occupation is genuine; and
(ii)	the position associated with the nominated occupation is genuine; and
(da)	the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)	if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea)	if:
(i)	the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii)	in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)	if:
(i)	the applicant is not an exempt applicant; and
(ii)	subclause (6) does not apply to the applicant; and
(iii)	at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant:
(iv)	has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)	achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)	if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)	either:
(i)	there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)	it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)	This subclause applies to an applicant if:
(a)	the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)	the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)	In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause. 

SCHEDULE 3 ADDITIONAL CRITERIA APPLICABLE TO UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS

3003
If:
(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.
3004
If 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.
3005
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:
(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.