1419029 (Migration) [2015] AATA 3737 (25 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Apostolos Salioras
CASE NUMBER:	1419029
DIBP REFERENCE(S):	BCC2014/1457937 
MEMBER:	Adrian Ho
DATE:	25 November 2015
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 25 November 2015 at 2:56pm
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 November 2014 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 13 June 2014. 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).
3.  	The delegate refused to grant the visa on the basis that Schedule 3 criteria 3004 was required to be met by cl.457.211, and was not met.
4.  	The tribunal wrote to the applicant under s.359(2) in the following terms:

INVITATION TO PROVIDE INFORMATION

I am writing about your application for review of a decision to refuse you the grant of a Temporary Business Entry (Class UC) visa, Subclass 457. 

To support your application, an Australian business nominated an occupation in relation to you. 

Your application was refused by a delegate who determined that you did not meet cl.457.211 which in your circumstances required you to meet Schedule 3 criterion 3004.

Clause 457.211 states:

457.211  

                   If the applicant is in Australia at the time of application:

                     (a)  the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

                     (b)  if the applicant does not hold a substantive visa at the time of application:

                              (i)  the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

                             (ii)  the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

It appears that the last day you held a substantive visa was on 24 May 2014 (as per the copy of the Department’s decision you provided to the tribunal).

If you did not hold a substantive visa when you applied for the visa, you are required to meet Schedule 3 criterion 3004 (which is attached to this letter).

It appears that paragraph (a) of Schedule 3 criterion 3004 applies to you, as you ceased to hold a substantive visa on or after 1 September 1994.  In this case paragraph (f)(i) requires the tribunal to decide if you would have been entitled to be granted a visa of the class you applied for (Class UC) if you had applied for the visa on the day when you last held a substantive visa.  

On that date, Class UC included only the Subclass 457 visa.

You would not have met cl.457.223(4)(a), on the date you last held a substantive visa, if on that date there was no nomination of an occupation made by a standard business sponsor in relation to you which had been approved, and had not ceased.

Clause 457.223(4)(a) states:

(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; 

The tribunal appears to be bound by the Court’s decision in Quan v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 1254 (Quan), where the Court held that the tribunal was correct to conclude that the applicant would not have been entitled to the grant of a 457 visa on the day on which the applicant last held a substantive visa because as at that date Quan did not have the sponsorship required for the grant of a 457 visa.  The Court went on to state that the tribunal did not need to consider if there were compelling reasons to grant the 457 visa, given that Quan was not able to satisfy all the mandatory criteria for the visa.

The Court stated (with tribunal emphasis):

38.	Item 3004 makes clear that in addition to there being compelling reasons for granting the 457 visa, the applicant must have been entitled to be granted a 457 visa if she had applied for that visa on 4 October 2008, being the date when she last held a substantive visa.
39.	As stated above, the MRT found that the applicant would not have been entitled to the grant of a 457 visa on 4 October 2008, being the day on which the applicant last held a substantive visa because as at 4 October 2008, the applicant did not have the sponsorship required for the grant of a 457 visa.
40.	The MRT’s findings were open to it on the evidence and material before it and for the reasons it gave. 
41.	In the circumstances, it was not necessary for the MRT to consider whether there were compelling reasons for granting the 457 visa given that the applicant was unable to satisfy all the mandatory criteria necessary for the grant of a 457 visa.

An application of Quan requires that you be in a position to meet ‘all the mandatory criteria’ for the visa ‘as at’ the date you last held a substantive visa, 24 May 2014; and if you did not have the necessary sponsorship for the visa as at that date, you would not have satisfied all the mandatory criteria, specifically cl.457.223(4)(a).  

In addition, Schedule 3 criterion 3004 also requires that you were not the holder of a substantive visa because of factors beyond your control, that there are compelling reasons for granting the visa, and that you complied substantially with the conditions that applied to your last substantive visa and any subsequent bridging visa.

If any of the above requirements of Schedule 3 criterion 3004 are not met, you would not meet Schedule 3 criterion 3004 and therefore, the mandatory criterion in cl.457.221A, and the tribunal would be required to affirm the decision under review.

Accordingly, the Tribunal invites you under s.359(2) to provide the following information in writing:

1.	Information which demonstrates that you meet, or do not need to meet, paragraph 3004(f)(i) of Schedule 3 to the Regulations;

2.	Information which demonstrates that you were not the holder of a substantive visa because of factors beyond your control;

3.	Information which demonstrates that there are compelling reasons for granting the visa;

4.	Information which demonstrates that you complied substantially with the conditions that applied to your last substantive visa and any subsequent bridging visa.
5.  	The applicant did not respond within the statutory timeframe provided, and has not responded or made any contact with the tribunal to date.
6.  	The applicant has not provided the information requested within the prescribed period, or to date.  Nor do the parties, which include a registered migration agent, indicate to the tribunal that steps are being taken to furnish the information.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.  
7.  	The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
8.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
9.  	The applicant was represented in relation to the review by his registered migration agent. 
consideration of claims and evidence
Does the applicant satisfy the relevant Schedule 3 criteria?
10.  	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.
11.  	In the present case, the tribunal finds that the applicant’s last substantive visa expired on 24 May 2014 and the present visa application was made on 13 June 2015.  Therefore, the applicant did not hold a substantive visa at the time of making the visa application.
12.  	The applicant must therefore meet Schedule 3 criteria 3004, as was suggested in the tribunal s.359(2) letter.
Is criterion 3004 met?
13.  	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.
14.  	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 been able to satisfy the criteria or be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; that the applicant intends to comply with any conditions of the visa; and that, 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. 
15.  	The delegate decided that no factors beyond the applicant’s control had led to the applicant not being the holder of a substantive visa.
16.  	The applicant submitted in writing to the Department (f.21) that he was under the assumption that his visa was expiring on 18 June 2014, misread the date of visa expiry, and did not realise that he had misread the date until after the fact.  It was, he asserts, a simple and honest mistake.
17.  	The tribunal accepts that this is so.  The question, however, is whether the applicant’s status, as not holding a substantive visa, was because of factors beyond his control.
18.  	The applicant’s misreading of the expiration date of his substantive visa led to him not taking action in a timely fashion and is a principal cause of him moving on to visas which were not substantive visas.  The tribunal considers that it is not unreasonable to expect an applicant to take steps to properly comprehend a visa expiration date that is plainly communicated.  Achieving that level of fundamental and rudimentary comprehension of one’s visa status is not something which is, on the evidence, beyond the control or influence of the applicant.  
19.  	The tribunal considers that the principal factors which led to the applicant not holding a substantive visa were within the applicant’s control, and he does not meet cl.3004(c) and cl.3004 as a whole.
20.  	In addition, and quite separately, for the reasons stated above in the tribunal’s letter, on the evidence, the tribunal is not satisfied that the applicant was, on the day the applicant last held a substantive visa, the subject of a nomination of an occupation that had been approved, and had not ceased, as required by the mandatory criteria in cl.457.223(4)(a) and cl.457.223(2)(b).  As these are mandatory criteria for the two alternate streams of the visa, the applicant would not have been entitled to be granted the visa if the applicant had applied for the visa on the day when the applicant last held a substantive visa.  The applicant therefore does not meet cl.3004(f).
21.  	There are therefore two separate and independent reasons why the applicant does not meet Schedule 3 criteria 3004.
22.  	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.
decision
23.  	The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Adrian Ho
Member

ATTACHMENT  - EXTRACTS FROM THE MIGRATION REGULATIONS 1994 

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.