Visa Applicant: Ser IRT Reference: N95/01292 #number 8311 [1996] IRTA 8311 (12 December 1996)

According to the original application form the Visa Applicant was born on 31 October 1955 and is a citizen of Indonesia. No details are provided as to when he was granted a visa to enter Australia. However, he states that he was in Australia on 1 November 1993.

Because the Visa Applicant has applied for refugee status, only the initials are published in this decision. The full name is held on file.

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994 Australian migration law underwent significant change. In accordance with regulation 23 of the Migration Reform (Transitional Provisions) Regulations, the Applicant's application in this case is taken to be an application for a transitional (permanent) visa under the new law. For most purposes this will resemble the entry permit that would have been granted under the law in force before 1 September 1994. However the application is still to be decided according to the criteria that applied to the entry permit for which application was originally made. The Regulations which are applicable in this case are therefore the Migration (1993) Regulations (the Regulations).

In accordance with the Migration Act and Regulations an applicant is entitled to be granted a visa only if he or she satisfies each of the various prescribed criteria set out in the Regulations. Failure to satisfy any one of the relevant criteria results in a failure of the application.

The criteria which must be satisfied before a Class 816 entry permit is granted are set out in Part 816 of Schedule 2 of the Regulations.

Among the criteria to be satisfied is clause 816.721(1)(a)(ii) which provides that the applicant is a person who meets the requirements of subclause (2) or (3) of clause 816.721. These provide as follows:

(2) An applicant meets the requirements of this subclause if, on 1 November 1993:

(a) the applicant in Australia had obtained, or had completed the requirements of, a post-secondary educational qualification following an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; or

(i) held an overseas technical qualification or general academic qualification that is assessed by NOOSR as being comparable to an Australian associate diploma, diploma, degree, or higher degree; or

(ii) held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade:

(B) if that Department is unable to make an assessment, by the State or Territory authority that the Minister decides is appropriate; or

(C) if neither that Department nor that State or Territory authority is able to make an assessment, by the Minister; or

(i) had been enrolled during the 1993 academic year in an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; and

(ii) had met the academic progress requirements of the institution at which he or she was enrolled.

(3) An applicant meets the requirements of this subclause if, throughout the period from 2 November 1992 to 1 November 1993 (both dates inclusive), the applicant owned:

(a) an interest (whether as a sole proprietor or as a member of a partnership) in a business that meets the requirements set out in Schedule 6.1; or

(b) an interest as a shareholder to the extent of at least 25% of the issued capital in a corporation that owns (whether directly or through an intermediary) a business that meet s the requirements set out in Schedule 6.1.

The findings of the Tribunal are based on the material held on file. A preliminary meeting was held with the Visa Applicant where it was indicated to him that further evidence was required to substantiate his claim to entitlement to this entry permit. The Visa Applicant, through his solicitor, declined to give any further oral or written evidence.

The Visa Applicant claimed entitlement to this entry permit on the ground, among other things, that he satisfied subclause 816.721(3)a). He based this claim on his involvement with the business known as Melindo Enterprises which was registered on 27 December 1990. However, the Visa Applicant was not involved in the business on 1 November 1993, according to the Business Name Extract supplied by the Department of Consumer Affairs.

There being no cogent evidence to the contrary, the Tribunal finds that as at 1 November 1993 the Visa applicant was not involved in a business within the meaning of subclause 816.721(3)(a). Accordingly, subclause 816.721(3)(a) is not satisfied.

It has not been claimed by the Visa Applicant, and there is no evidence to suggest, that the Visa Applicant satisfies any of the other requirements of subclauses 2 or 3 of clause 816.721. Accordingly, this application must fail.

There may be other grounds on which this application will also fail but it has not been necessary to consider them. This application is deemed to be also for a Class 818 entry permit. However, it has not been claimed by the Visa Applicant, nor does it appear from the evidence, that this application can satisfy the criteria of any other entry permit.

The Tribunal notes that this application may have further problems as the Visa Applicant is under investigation by the Federal Police in connection with matters relied upon by him to obtain this entry permit. As this application has failed on the above criteria, it has not been necessary to consider the application any further.

The Tribunal affirms the decision not to grant the Visa Applicant a Class 816 (special (permanent)) entry permit.