Migration Review Tribunal Cases

Successful Offshore Spouse Visa MRT Review Decision [2011]

Law - Spouse Visa [2011]

• 50. The Tribunal finds that in these circumstances, the sponsor’s need for support, and the visa applicant’s provision of such support, constitutes compelling reasons for granting the visa. The Tribunal is satisfied that the applicant meets PIC 3004(d) for the purpose of cl. 820.211(2)(d)(ii).

• 51. The Tribunal further finds that the applicant meets PIC 3004(d) for the purpose of cl. 820.211(2)(d)(ii).


• 52. The Tribunal will return the visa application to the Department for reconsideration in accordance with the Tribunal’s directions. If the applicant meets the remaining criteria, the applicant will be entitled to the grant of a Subclass 820 visa.

• 53. The Tribunal remits the application for Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Spouse) visa. PIC 3004(d) for the purpose of cl.820.211 (2)(d)(ii) of Schedule 2 to the Regulations.

Prajapati, Jayesh - Student Visa Cancellation [2010]

Kumar, Lukesh - Student Visa Cancellation

• 22 The applicant has applied for a Student (Temporary) (Class TU) visa and the course in which he is enrolled as his principal course is a Bachelor of Business, which was specified for Subclass 573 by the Minister in the relevant Gazette Notice made under r.1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 573. The Tribunal finds on the evidence before it, that the applicant is not a person designated under r.2.07AO of the Regulations, and that at the time of the decision the applicant holds an eligible India passport. According to IMMI 08/051, 1 September 2008, the Gazette notice in force at the time of application, the applicant is subject to consideration under Assessment Level 4.


• 23 In the present case, the delegate found that the applicant did not meet cl.573.223(2)(a)(i)(B). The delegate found that the applicant did not have the necessary financial capacity as specified in cl.5A505.


• 24 The applicant has presented a statement from James Cook University that he commenced the Bachelor of Business in November 2009 and that he will complete the course in March 2012. He informed the Tribunal in his oral evidence that he has been granted a number of credits and will complete the course in July 2011. In the absence of documentary evidence to indicate that the applicant has been granted exemption which would affect the duration of the course, the Tribunal relies on the Confirmation of Enrolment provided to the Tribunal by the applicant, as well as a statement from James Cook University.
  
  Both documents indicate that the applicant is expected to complete the course in March 2012. There is no evidence before the Tribunal to indicate that the applicant’s proposed stay in Australia will extend beyond that period. The Tribunal finds, for the purpose of determining the “first 36 months” that this period commences in July 2010 and finishes in March 2012, that is, for the period of 20 months.


• 25 For the purpose of cl. 5A505, the applicant must give evidence that he has funds from an acceptable source that are sufficient to meet, for 20 months, cost fees and living costs. The applicant has no school-age dependants and school costs do not apply to him.


• 26 The letter from James Cook University indicates that the applicant needs to complete a further 14 subjects and the tuition fee for each subject is $1775. He has provided a receipt for the payment for three subjects he is currently undertaking. The Tribunal estimates the course fees to be $19,525. (11 subjects at $1,775). The Tribunal estimates the applicant’s living costs to be $21,000 (July to March 2012). The Tribunal finds the travel costs to be approximately $1000. Thus, the applicant must give evidence that he has funds of approximately $42,000 from an acceptable source. That amount is equivalent to approximately 1,725,000 Indian Rupees.


• 27 There is nothing before the Tribunal to indicate that the applicant is fully funded. Further, the applicant has indicated that he has completed 10 of the 24 subjects required to complete the course and the Tribunal is not satisfied that he has completed at least 75% of requirements for his principal course.


• 28 Subparagraph (b) of the definition of the term “funds from an acceptable source” refers to a loan from a financial institution made to, and held in the name of, an acceptable individual, which, relevantly, includes parents and siblings. The applicant presented evidence of a loan issued to his brother Rajat Garg by the Punjab National Bank in May 2010 to the amount of 1665000 Indian Rupees and a further statement from the Oriental Bank of Commerce indicating that the applicant had been issued with a loan of 288,675 Indian Rupees. The total amount of the loan held by the applicant and his brother is approximately 1,950,000 Indian Rupees, which exceeds the amount required above.
  
  The applicant has also presented evidence relating to his family’s employment and income. The Tribunal is satisfied on the basis of this evidence that the regular income of any individual providing the funds is sufficient to accumulate the level of funding being provided by the individual. The Tribunal is also satisfied that the applicant has provided a declaration that he has access to funds from an acceptable source that are sufficient to meet various expenses. Having regard to the evidence presented by the applicant, the Tribunal finds that the applicant has given evidence in accordance with Item 5A505.


• 29 On the basis of the above, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 573 and Assessment Level 3 to which he is subject, in relation to the financial capacity of the applicant to undertake each proposed course of study without contravening any condition of the visa relating to work (cl.5A505).Accordingly, the applicant does not satisfy the requirements of cl.573.223(2)(a)(i)(B).

Matthew- Working Holiday Visa [2010]

• 17. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.


• 18. Clause 417.211(5) requires the Tribunal to be satisfied that the applicant has carried out seasonal work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa. As noted above, the definition of the term ‘seasonal work’ appears in cl.417.111, which relevantly provides that seasonal work is any type of work that is undertaken as the employee of a primary producer. The legislation offers no definition of the term ‘primary producer’ and the Macquarie Dictionary defines the term as, relevantly, “someone who works in a primary industry as a farmer, a fisher, etc. or a business or industry devoted to primary production”.


• 19. The applicant stated on the application form and in his submission to the Tribunal that he had worked as a seasonal worker, a banana hand, in regional Australia for three months. The Department has accepted that the applicant worked at Golden Banana Services in Tully from 12 February 2009 to 20 May 2009 for 40 hours per week. The applicant has provided advice from his employer that he was employed for 59 days and the Department confirmed this advice with the employer. The applicant has also provided evidence that he was also paid by Workcover for 6 days and for 8.862 hours.


• 20. The Tribunal is satisfied that fruit picking constitutes ‘seasonal work’ within the meaning of paragraph (a)(i) of the definition of ‘seasonal work’ in the Legislative Instrument, IMMI 08/048 of 26 June 2008, for the purpose of cl.417.111. The applicant’s electronic records indicate that he held a Working Holiday visa between 15 April 2008 and 3 June 2009. Thus, he carried out seasonal work as a holder of a Working Holiday visa.

• 21. The Tribunal further finds that postcode 4854, where the applicant carried out his work for Golden Banana Services, is an area having a postcode listed in the Schedule to the above Legislative Instrument and it is therefore ‘regional Australia’ within the meaning of cl.417.111.


• 22. The issue in the present case is whether the applicant has carried out seasonal work in regional Australia for a period of at least 3 months while on his first Working Holiday visa.


• 23. In the absence of legislative guidelines or judicial interpretations of the meaning of 3 months, the Tribunal has had regard to the Department’s Procedures Advice Manual 3 (PAM3), which provides policy guideline on the matter. According to PAM3,


• 19.2 Meaning of 3 months Three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year. The work should be the equivalent of full time work for that employer, that region and that industry... Applicants who work full time may count weekends in the 88 day period. If the applicant works only part time or casually, however, they may only count the full days actually worked. The shortest period that may be counted towards the seasonal work requirement is 1 day of full time work (depending on how this is defined by the particular industry where work was completed).


• 24. The Tribunal is not bound by policy, but it is required to have regard to it unless there are cogent reasons for departing from it. In this case the Tribunal sees no reason to depart from policy in respect of the meaning of 3 months. It states that applicants who are employed full time may count weekends and days where they were paid but unable to work due to illness or climactic conditions.


• 25. The Tribunal has considered the evidence provided by the employer that the applicant worked 59 days. However, this does not include the period that the applicant was paid by Workcover and it does not include weekends and 3 public holidays. Under the Department’s policy, these periods can be taken into account. The Tribunal is satisfied that the applicant worked 5 days per week on a full-time basis in the period 12 February 2009 to 20 May 2009. The Tribunal is therefore satisfied that the applicant worked for a total of 89 days while on his first Working Holiday visa. Therefore, the Tribunal is satisfied that he has worked for a period of at least 3 month as defined by PAM3.


• 26. It follows that the Tribunal is satisfied that the applicant had carried out seasonal work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa. The Tribunal finds that the applicant meets cl.417.211(5).

27. Given the findings made above, the Tribunal remits the matter with a direction that the applicant meets cl.417.211(5)

• 28. The Tribunal remits the applications for Working Holiday (Temporary) Visa Class (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa: cl.417.211(5) of Schedule 2 to the Regulations. a.

Leitch, Alwyn James [2004]

• clause 300.215 of Schedule 2
• clause 300.216 of Schedule 2

071557619
16 April 2008, Brisbane
Ms R Johnston, Member
EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) VISA – SUBCLASS 857 – CL.857.213(b)(ii)(A) – AGE – EXCEPTIONAL APPOINTMENT

A delegate of the Minister for Immigration and Citizenship refused to grant a Subclass 857 visa on the basis that the applicant did not satisfy cl.857.213(b)(ii)(A), as the applicant was over 45 years old and the delegate was not satisfied that the position she was nominated for was exceptional in relation to age. The applicant was 56 years old and nominated by Central Queensland University (“CQU”) for the position of Conservation Biologist/Environmental Scientist. She contended that exceptional circumstances existed for the nominated position as the multidisciplinary aspects made it unique and highly specialised; she had performed the duties of the nominated position for several years; her age was not a hindrance, but rather an asset given the knowledge and experience she had acquired; and she was one of the few experts on the subject of an endangered Australian wallaby.

Held: Decision under review set aside

The Tribunal had regard to the position description and statements from the applicant’s employer and references from third parties and was satisfied that the nominated position normally requires a person with skills and experience acquired over many years and that it would be difficult, if not impossible, to find a suitably qualified person younger than the applicant. The Tribunal accepted the employer’s statement that due to the nature of the position to be filled, a person over the age of 45 was required. The Tribunal also considered the employer’s suggestion that without the applicant managing and overseeing all aspects of Wildlife Unit operations, it would cease to operate. The Tribunal considered this plausible because of the remoteness of the location, the inability of CQU to have sufficient funding/resources to pay ‘cash’ remuneration, the current skill shortages in Australia and the multidisciplinary skills and vast experience that the applicant possesses. The Tribunal was satisfied that the appointment was exceptional in respect of the age requirement and that the applicant met cl.857.213(b)(ii)(A) and cl.857.213 as a whole.

Tzvetanov, Krassimer Trifonov [2003]

• clause 805.211 of Schedule 2
• clause 805.212 of Schedule 2
• clause 805.311 of Schedule 2

Sarrachini, Angel Antonio [2003]

McLeavey, Josephine Macapagal [2003]

• clause 310.221 of Schedule 2