Australian Immigration Daily News

Beware, beware, beware, be aware!

So-called “time of application” criteria can be a genuine trap for the unwary, and can cause a visa application to blow up, with dire consequences for the applicants.

A case in point is a decision of the Administrative Appeals Tribunal that was recently brought to the writer’s attention by our colleague,  Dr Sirous Ahmadi (as of this date, not reported on Austlii).

The case involved an application for a Subclass 892 visa, “State/Territory Sponsored Business Owner”.

Clause 892.21 of Schedule 2 consists of what may be termed a “heading” that simply says: “Criteria to be satisfied at time of application”.

The next clause of Part 892 of Schedule 2, clause 892.211,provides that an applicant for a Subclass 892 visa must have had, and continue to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

And significantly for this case, clause 892.211(2)(b) specifies that “all Business Activity Statements required by the Australian Taxation Office  for at least the 2 year period immediately before the application is made must have been submitted to the ATO and, critically, “have been included in the application”.

What happened here was that the applicant became involved in the property development industry in Australia , and, in relation to one of the development projects, had made an investment of over $5 million.

However, the application was refused in the first instance by the Department on the basis that no documents beyond the necessary forms to satisfy Schedule 1 requirements, including no documents to describe the applicant’s main businesses or the applicant’s involvement in the management and operation of the businesses had been supplied.

What was particularly problematic was that the BAS statements for the applicant’s businesses were not included with the application when it was originally lodged with the Department.  The BAS statements were not provided until after the Department had written to the applicant to advise that the BAS statements had not been submitted with the original application.

The applicant’s failure to submit the BAS statements with the original application apparently did not figure in the Department’s reasons for refusal.

However, when an application for merits review was brought to the Tribunal, the Tribunal,  at its own initiative, raised the issue of the applicant’s apparent non-compliance with clause 892.211(2)(b).

The Tribunal took the view that clause 892.211(2)(b) is a “time of application” criterion, and found that since the BAS statements had not been submitted at the same time as the application, they had not been “Included with the application”.

Consequently, the Tribunal affirmed the Department’s decision to refuse the visa application.

And, notwithstanding the submission that the applicant’s investment in one of the development projects that was being carried out by his business was over $5 million, that refusal of the visa would have a “severe financial effect” on this development project and the applicant’s family, and that continuation of the property development business would be of economic benefit to Australia, the Tribunal member also refused the applicant’s request to refer the case to the Minister for consideration of whether to intervene.

And what do you imagine happened to the request for Ministerial Intervention when it was considered personally by the Assistant Minister? 

It should come as no surprise, given how rare it is for ministerial intervention to be granted, that the Assistant Minister declined to intervene.

So, the outcome, at least so far (judicial review of the Tribunal’s decision has not yet been sought) , has been a total disaster and fiasco for the applicant.

Despite apparently meeting the substantive requirements for the grant of a Subclass 892 visa, by engaging in significant business activity in Australia, the application was refused at the Tribunal stage simply by reason of the failure to submit the BAS statements at the same time that the original application was lodged with the Department.

Does it seem to you that the outcome in this case was harsh or unfair?

After all, here we have an applicant who on the evidence has made a significant investment in the Australian economy, and whose visa application was rejected by the Tribunal solely due to the technicality that the requirement for lodging the BAS statements appeared in Schedule 2 under a “time of application” heading.

It also appears that the Tribunal’s decision in this case may have been in conflict with the decision of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) HCA 8.

In Berenguel, an application for a  (former) Subclass 885 visa was refused by a delegate of the Minister because the results of an IELTS test were not submitted at the same time as the application was lodged. The relevant regulation, clause 885.213, appeared in Schedule 2  under a heading also stating “Criteria to be satisfied at time of application”, and specified that the applicant must have “competent English”.

In Berenguel, the High Court held that simply because the requirement for the applicant to have competent English did appear under a time of application heading did not mean that the Schedule 2  requirement should be interpreted so that applications in which the IELTS test result was not submitted simultaneously with the application should necessarily be refused.

The Court declared in Berenguel that such an interpretation would lead to “plain unfairness and absurdity” and was therefore not to be preferred.

Should the same approach to interpretation been followed by the Tribunal in this case?

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