Henriques De Oliveira (Migration) [2019] AATA 5143

Tribunal: Member R Skaros

The applicant asked the Administrative Appeals Tribunal (AAT) to review a decision made by the then Department of Immigration and Border Protection (the Department) refusing to grant him a Subclass 457 temporary business entry visa[1].

During the process of the review, it came to the AAT’s attention that the applicant was no longer the subject of an approved nomination capable of supporting his application for the Subclass 457 visa.

The AAT had to consider two issues:

Did the applicant meet Public Interest Criteria (PIC) 4020, which requires applicants not to give bogus documents or false or misleading information in relation to their visa application or a recent visa grant?

Did the applicant meet the requirement in cl.457.223(4)(a) that they have an approved nomination (that has not ceased) by a standard business sponsor?

The applicant attempted to enter New Zealand in March 2016, but did not meet the financial requirements (having less than $3000) and was denied entry. After a trip to Fiji in June 2016, he returned to Australia where he was counselled by a border officer that he must declare having being denied entry into New Zealand or he would be refused entry into Australia. It was recorded that the applicant understood this advice.

In October 2016, using an agent, the applicant applied for a visa. He did not tell the agent he had been denied entry into New Zealand, so it was not recorded on his visa application.

He explained to the AAT that he did not consider what happed in New Zealand to be tantamount to being ‘removed, deported or excluded’ from a country. Rather, he was simply not allowed in, and left voluntarily, because of the financial requirements.

The AAT was satisfied the applicant genuinely understood the question on the visa application form as referring to a formal removal or deportation process and there was no purposeful falsehood or deception involved.

The AAT found the applicant met PIC 4020.

However, on 18 March 2018 amendments to the temporary work Subclass 457 visa program[2] came into effect. Under the amendments, the applicant’s sponsor could no longer rely on an approved nomination that had ceased prior to 18 March 2018 to support the Subclass 457 visa. Nor could they rely on a nomination application lodged prior to 18 March 2018, and before the applicant made their application for review. For that reason the AAT found the Subclass 457 requirements had not been met and affirmed the decision not to grant the visa.

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