Immigration Review Tribunal, Re Yih Jong Chio

Re: YIH JONG CHIOU
IRT Reference No. N91/00357 ; NUMBER 1624
IMMIGRATION REVIEW TRIBUNAL
ADELAIDE
29 January 1993

SUBSEQ-HISTORY: Number of pages - 6

ORDER: The Tribunal affirms the decision made by the primary decision-maker on the 16th November 1990, namely that the principal Yih Jong Chiou be refused an extended eligibility (temporary) entry permit (EETEP) of the economic class (823).

KEYWORDS: Extended Eligibility (Economic) Temporary Entry Permit - unable to satisfy threshold criteria

Migration Act 1958, s.121

Migration Regulations, rr.35AA, 128, 131A

Migration (Review) Regulations, r.29

Petrovski, Re (IRT Decision No. N90/00177, delivered 17 June 1991)

Mah, Re (IRT Decision No. S90/00008, delivered 19 September 1990)

Roser v. Immigration Review Tribunal and the Minister for Immigration, Local Government and Ethnic Affairs, (unreported, Federal Court, 1991)

JUDGES: M. RADIN (Senior Member)

JUDGMENT-1: M. RADIN This application for review was made on the 23rd November 1990. The application was made by Yih Jong Chiou, pursuant to regulation 21 of the Migration (Review) Regulations in respect of a decision by the Department of Immigration, Local Government and Ethnic Affairs ("The Department"/"DILGEA") to refuse to grant to him an extended eligibility temporary entry permit (EETEP) of the economic class (823).

2. At the time of the primary application in this matter, the principal was aged 34 years, having been born on the 4th October 1955, in Rangoon, Burma. He is of Chinese ethnic background. At the time of the application, he was a single person, and was working as a supervisor of process workers for Neta-Brymac Plastics in Sydney, New South Wales.

3. He entered Australia on the 28th August 1981 as a visitor and upon arrival he was granted a temporary entry permit of the corresponding class which was valid for a period of two weeks. Following expiry of his entry permit on the 12th September 1981, and as a result of his failure to secure a further temporary entry permit, the principal became a prohibited non-citizen, or as is currently known, an illegal entrant.

4. on the 15th February 1990, the principal made application for an economic EETEP at a departmental office in Sydney. Subsequently, on the 16th November 1990, a migration officer from the afore-mentioned office ("primary decision-maker") refused such application, finding that the principal had failed to satisfy the relevant criteria set out in regulation 128 of the Migration Regulations.

5. Subsequently, on the 23rd November 1990, the principal made application to the Migration Internal Review Office ("MIRO") seeking review of that decision. However, pursuant to regulation 29 of the Migration (Review) Regulations, the matter was transferred to this Tribunal for determination.

RELEVANT LAW

6. This application for an economic EETEP was enabled by regulation 35AA of the Migration Regulations which entitles an illegal entrant to make application for the relevant entry permit on the basis that he or she is able to satisfy the relevant criteria therein. The said regulation reads as follows:-

"Grant of entry permit - illegal entrants

35AA (1) The Minister may, in spite of any other provision of these regulations except subregulation (2) and subregulation (42) (1A), (1B) and (1C), grant a temporary entry permit to a person who is an illegal entrant if:

(b)in the case of a person who entered Australia before 19 December 1989, not being a person referred to paragraph (a);

(i)a person applies for the entry permit not later than 31 October 1990; and

(ii)the person satisfies the prescribed criteria in relation to the entry permit (other than, if applicable, the prescribed criteria that the person is the holder of valid temporary entry permit and that the person is not an illegal entrant); and

(iii)the minister is satisfied that there are compelling reasons for granting the entry permit;"

7. In the instant case, the applicant has applied for an economic EETEP, and thus must satisfy the relevant provisions of regulation 128 as it stood at the time of the primary application. These provisions read as follows:- "Extended eligibility (economic) entry permit

128. (1)

(a)the applicant:

(i)is not, and during the period of 10 years immediately preceding the day of the application has not been, a prescribed non-citizen; and

(ii)is not the holder of a visitor visa or entry permit, or an illegal entrant; and

(iii)either:

(A)-has held one or more than one temporary entry permit permitting temporary residence in Australia for an aggregate period of more than 12 months (other than a retirement, working holiday, domestic worker (diplomatic or consular) or expatriate entry permit) and has permission to work under an entry permit in force at the time of the application; or

(B)is the holder of a student (formal course) entry permit and has completed a formal course of study at a higher education institution while the holder of such an entry permit; or

(C)is the holder of a working holiday entry permit; and

(iv)satisfies the prescribed criteria in relation to any of the following classes of visas ' namely, labour agreement, employer nomination, business (joint venture), business (general), distinguished talent (Australian support) or distinguished talent (independent);

(b)the applicant satisfies public interest criteria as applicable and the prescribed health criteria specified in item 9 in Schedule 1.

(2)In this regulation, "prescribed non-citizen" means:

(a)where that expression is applicable in respect of the day of commencement of these Regulations or any later day - a prescribed non-citizen within the meaning of section 47 of the Act; or

(b)where that expression is applicable in respect of a day before the day of commencement of these Regulations - a prescribed non-citizen as referred to in paragraph 6A(4) (c) of the Act as in force immediately before that commencement".

THE EVIDENCE

8. The Tribunal took sworn evidence from the principal at a hearing convened in the Sydney Registry on the 29th July 1991. Mr Chiou was accompanied by his solicitor, and assisted by a Burmese interpreter. He confirmed that he was born on the 4th October 1955 in Burma. He told the Tribunal that his parents have now passed away, but he retains regular communication with two siblings. He stated that he had successfully obtained his Bachelor of Science Degree in Burma in 1979, majoring in Physics. Thereafter he commenced working in a family business, selling electrical goods. He moved to Taiwan in March 1980, and stayed there for a period of some fourteen months, working in the manufacturing of plastic roller skates. Whilst there, his sister arrived to join him and take up residence.

9. He arrived in Australia in August 1981, initially to visit a friend in Melbourne. After forming an intention to overstay, he commenced work with a plastics company. He has been with this company now for a period of nine years. In 1989, he was promoted to the position of supervisor, having previously spent a year or so as a leading hand. The first six years saw him working as a machine operator. He told the Tribunal that he now has responsibility for supervising the night shift, and this entails responsibility for the workers and the equipment, which is used to produce bottle caps.

10. He told the Tribunal that he has gained a certificate in plastics moulding, by undertaking a 12 month course outside of normal working hours at a plastics institute. As such, he explained to the Tribunal that his skills are in high demand, and as his company only has four or so competitors in the Sydney metropolitan area, his skills would be hard to replace. He told the Tribunal that the company, Neta-Brymac Plastics, was supportive of his application.

11. In this regard, the Tribunal considered a letter submitted by Mr T Munro, the Operations Manager of the employer company, prepared by him on the 14th February 1990. In such letter, he stated that the principal had been employed since 1981 with the company, and as at 1990 was working in the capacity of supervisor and earning a sum of $ 31,000 per annum. It was stated that the principal " ... is a person of considerable ability and I consider his continued growth within the company inevitable".

12. The Tribunal also considered written submissions prepared by the principal's solicitor, and forwarded to the Tribunal on the 1st July 1991. The submissions purported to set out the current political, economic and social situation in the principal's home country, and in particular the generally repressive nature of the governing regime there, which it is submitted, severely exploits and represses its Chinese origin population. It was alleged that acts of discrimination against the Chinese in the educative and other systems are common place, and examples of this treatment were provided. As a result of this situation, in early 1980 the principal had migrated to Taiwan to escape the continued excesses of the Burmese regime. However it was stated that the principal was not literate in Chinese, and very quickly faced discrimination in Taiwan on the basis of being an "overseas born Chinese". As such, severely disillusioned, he travelled to Australia in August 1981 in search of new horizons.

13. He commenced employment with Neta-Brymac in early 1982, where he has developed special skills of importance to the employer. In his position of supervisor, he supervises 10-15 employees in the production process. The loss of such skills to the employer, it was suggested, would not be readily replaceable, and would be immediately detrimental to the customers of the employer.

14. It was also submitted that after almost a decade in Australia, the principal had fully integrated into the Australian community. He is unable to return to Burma as a result of continuing persecution by the same regime, and he is disillusioned about his prospects were he required to return to Taiwan. It was submitted that he had only lived in Taiwan for fourteen months, and had not at all become adjusted to the fundamental tenets of the society.

SUMMARY AND CONCLUSION

15. The "threshold requirements" for the grant of an economic EETEP were set out in the Tribunal decision in Petrovski, (N90/00177, 17/6/91), and I do not propose to re-state the same at length.

16. Suffice it to say that for the purposes of the present application, I find that the principal Chiou has not been able to meet the "threshold requirements" as set out in that matter. In this regard, I find that he entered Australia as a visitor and subsequently was granted a two week temporary entry permit. The same expired, making Mr Chiou an illegal entrant. No further applications were made until the present application for the economic EETEP. As such, Mr Chiou is unable to satisfy the threshold requirement that he have had at least one or more temporary entry permits for a cumulative period of more than twelve months. Accordingly, failure to meet the threshold requirements has made further consideration of the regulatory criteria unnecessary. For these reasons, the current application must be refused.

17. However, this does not extinguish the Tribunal's obligation in relation to the present matter. Given that the principal has remained in Australia during the currency of the present application, the Tribunal is also required to consider its responsibilities pursuant to section 121 of the Migration Act 1958 as amended, which reads as follows: "

121. (1)This section applies to each review under this Part of a decision (in this section called the "original decision") refusing an entry permit to a person where:

(a)the person has entered, and remains in, Australia; and

(b)the review authority concerned has determinative powers in relation to the original decision.

(2)Where, during the review, it appears to the review authority that the applicant might have grounds for making another application for an entry permit of the same class or an application for an entry permit of a different class, the review authority shall:

(a)notify the applicant accordingly; and

(b)adjourn the review.

(3)If the applicant does not make any other application for an entry permit within 10 working days after being notified under subsection (2):

(a)the review authority shall resume the review of the original decision; and

(b)section 36 applies to the applicant.

(4)If the applicant makes any application or applications for an entry permit within 10 working days after being notified under subsection (2):

(a)the review authority shall not resume the review of the original decision until decisions have been made by the Minister on the other application or all the other applications;

(b)the review authority shall then, subject to the wishes of the applicant, review the original decision and such of the other decisions (if any) as are reviewable decisions; and

(c)section 36 applies to the applicant."

18. In order to invoke the Tribunal's power of adjournment of section 121 of the Act, the Tribunal must be satisfied that there is a real as distinct from a fanciful or absurd possibility that an applicant is able to bring a further application in the present or any other class of entry permit: that is, there is at least some evidence before the Tribunal that the applicant will be able to satisfy the basic criteria of the class of entry permit in which a further application is sought to be made. This was held in the Tribunal's decision of Mah (S90/00008, 19/9/90), and subsequently approved by the Federal Court in Roser v the Immigration Review Tribunal and the Minister of State for Immigration, Local Government and Ethnic Affairs (Federal Court No 26 of 1991, unreported, Von Doussa J).

19. Following the taking of oral evidence in this matter, submissions were received from the principal in respect of the Tribunal's powers under section 121. After consideration of the said submissions, the Tribunal determined to adjourn the proceedings, and notified the principal in writing. This enabled the principal to proceed with the lodging of a further application for a December 1989 (temporary) entry permit pursuant to regulation 131A of the Migration Regulations. Such application was in fact lodged with the Department on the 26th August 1991. A decision refusing such application was made on the 17th February 1992 and communicated to the principal. This enabled the Tribunal subsequently to resume its hearing in respect of the present application, and, in the language of sub-section 121(4) (b);

"(b) ... subject to the wishes of the applicant, review the original decision and such of the other decisions (if any) as are reviewable decisions".

20. The Tribunal's review of the December 1989 (temporary) entry permit application has been set out in separate reasons.

DECISION

21. The Tribunal affirms the decision made by the primary decision-maker on the 16th November 1990, namely that the principal Yih Jong Chiou be refused an extended eligibility (temporary) entry permit (EETEP) of the economic class (823).

8TH CASE of Level 1 printed in FULL format.

Copyright 1993 Commonwealth of Australia