1409152 (Migration)

[2015] AATA 3911

1409152 (Migration) [2015] AATA 3911 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Romain Hadoux
Miss Jessica Karina Ramos

CASE NUMBER:  1409152

DIBP REFERENCE(S):  BCC2014/625100

MEMBER:Alison Mercer

DATE:22 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration with the direction that the first named visa applicant meets the following criterion for a subclass 457 visa:

·Schedule 3 criteria 3004(c) for the purposes of cl.457.211 of Schedule 2 to the Regulations.

Statement made on 22 December 2015 at 3:49pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants lodged an application for review with the Tribunal on 2 June 2014. The applicants were represented in relation to the review by Mr Andrew Tuminello of the nominating employer.

   Jurisdictional issues

3. A preliminary issue before the Tribunal was whether it had jurisdiction to review the delegate’s decision.

4. The Tribunal’s jurisdiction arises under section 348 of the Act if an application is properly made under section 347 for review of an MRT-reviewable decision. Section 338 of the Act and subregulation 4.02(4) of the Migration Regulations 1994 (‘the Regulations’) set out the range of decisions that are MRT-reviewable and the circumstances in which they are reviewable.

5. A decision to refuse to grant a subclass 457 visa is an MRT-reviewable decision in certain circumstances. These are: if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is ‘sponsored’ by an ‘approved sponsor’, either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending.[1]

   [1] Paragraph 338(2)(d) of the Act and subregulation 4.02(1A) of the Regulations

6. For review applications made on or after 14 September 2009, the meaning of ‘sponsored’ includes being identified in a nomination of an occupation, made by a standard business sponsor, has been approved under section 140GB of the Act, and that the approval has not ceased as provided for in regulation 2.75 of the Regulations.[2] 

   [2]Section 337 of the Act and subregulation 4.02(1AA) of the Regulations

7. Notably, in Minister for Immigration and Border Protection v Lee[3] (‘Lee’s case’), the Federal Circuit Court of Australia held that the Tribunal did not have jurisdiction to review a decision to refuse a subclass 457 visa application where there was no approved nomination in force at the time the applicant lodged his or her review application with the Tribunal.  The Court held that for a person to be ‘sponsored by an approved sponsor’ for the purposes of subparagraph 338(2)(d)(i) of the Act, there must be an approved nomination of an occupation in force under section 140GB of the Act in respect of the applicant at the time the review application was lodged with the Tribunal.

   [3][2014] FCCA 2881

8. As a result, on 14 January 2015 the Tribunal invited the applicants, via their representative, to comment upon the fact that their application for review may not be valid because:

   ·there appeared to be no approved nomination of an occupation under section 140GB of the Act in force at the time they lodged their application for review on 2 June 2014; and

   ·there was no application for review of a decision to refuse a nomination pending before the Tribunal at that time.

9. The applicants were invited to provide their comments to the Tribunal within 14 days of receiving this letter, namely, by 28 January 2015.

10. On 28 January 2015, Mr Tuminello sent an email response stating that he disagreed with the Tribunal’s assertion as there was an approved nomination in relation to the first named applicant.  He attached a copy of a letter dated 6 March 2014 from the Department to Simpson Construction Pty Ltd approving its nomination of the first named applicant for the occupation of Landscape Gardener.  The nomination approval is stated to cease on the earliest of the following:

    ·the day on which the Department receives notification, in writing of the withdrawal of the nomination by the approved sponsor;

    ·12 months after the day on which the nomination is approved;

    ·the day on which the applicant, or the proposed applicant, for the nominated occupation is a granted a subclass 457 visa;

    ·if the approval of the nomination is given to a standard business sponsor, 3 months after the day on which the person’s approval as a standard business sponsor ceases;

    ·if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under s.140M(1) – the day on which the approval is cancelled; and

    ·if the approval of the nomination is given to a party to a work agreement (other than a Minister) – the day on which the work agreement ceases.

11. On 9 February 2015, the Tribunal sent an email to Mr Tuminello asking him to clarify whether, as the Department’s electronic records indicated, the nomination had been withdrawn on 13 March 2014.  Mr Tuminello responded on the same date by email stating that he did not withdraw the nomination and was unsure why the Department’s records indicated that he had. 

12. The Tribunal then advised Mr Tuminello that it would need to clarify the issue with the Department before proceeding with the case.  The Tribunal sent several emails to the Department seeking clarification of this issue.  On 19 March 2015, the Tribunal received from the Department a copy of an email sent to the Department by Mr Tuminello on 4 March 2014 seeking to withdraw nomination EGO4Z32ZGWO (subclass 186/187) because it was meant to be a nomination for a subclass 457 visa.  The Department’s records indicate that the nomination withdrawn by Mr Tuminello on behalf of Simpson Construction Pty Ltd on 4 March 2014 related to a Class EN subclass 186 (Employer Nomination Scheme) permanent residence visa application, and not to a Class UC subclass 457 (Business Long stay) temporary residence application.  The Tribunal is further satisfied that the Department’s records indicate that a nomination by Simpson Construction Pty Ltd in relation to subclass 457 visas had been made to the Department prior to 4 March 2014 and was approved by the Department on 6 March 2014.

13. Following the recent case of Kandel v Minister of Immigration and Border Patrol [2015] FCCA 2013, a more recent case that that of Lee by a Court of the same jurisdiction, the Tribunal is therefore satisfied that it has jurisdiction to review the decision to refuse the applicants subclass 457 visas.

    Substantive issues

14. At the time the visa application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

15. The delegate refused to grant the visas on 19 May 2014 on the basis that cl.457.211 was not met because the first named applicant last held a substantive visa (a subclass 417 Working Holiday visa) on 3 February 2014 and made the subclass 457 visa application more than 28 days after this, on 4 March 2014. The delegate found that the first named applicant had to satisfy Schedule 3 items 3003, 3004 and 3005. Item 3004 required that the first named applicant satisfied the Minister that he was not the holder of a substantive visa at the time of the subclass 457 visa application because of factors beyond his control, that there were compelling reasons for granting the visa, that the first named applicant had substantially complied with the terms of the last substantive visa he held (and any subsequent bridging visa granted to him), and that he would have been entitled to be granted a subclass 457 visa on the day on which he last held a substantive visa. The first named applicant also had to intend to comply with the conditions to which a subclass 457 visa would be subject.

16. The delegate noted that the applicants had been requested to provide submissions addressing the above issues but failed to respond. The delegate noted that the fist named applicant was granted a subclass 417 (Working Holiday) visa on 7 December 2011, and made an application for another such visa on 1 February 2013. This was approved by the Department on 21 February 2013 and expired on 3 February 2014. The first named applicant made his subclass 457 visa application on 4 March 2014 and had not provided any evidence that this was due to factors beyond his control. Therefore, he did not satisfy item 3004 and did not meet cl.457.211(2)(b)(ii) and thus did not meet cl.457.211(2) as a whole. The delegate also refused to grant the second named applicant a subclass 457 visa as she was not a member of the family unit of a person who held a subclass 457 visa, and there was no evidence that she met the primary visa criteria in her own right.

17. The Tribunal received a review application from the applicants on 2 June 2014.  It was accompanied by an authority by which the appointed Mr Andrew Tuminello as their authorised recipient for correspondence.

18. As noted above, it took some time for the Tribunal to establish whether the application for review was validly made in this case, due to the issue of whether there was an approved or pending nomination of the first named applicant by his nominating employer at the time that the application for review was made on 4 March 2014.

19. On 7 October 2015, the Tribunal wrote to the applicants via their authorised recipient to invite them to a hearing on 12 November 2015.  They were requested to make any written submissions addressing the issue of whether the first named applicant was not the holder of a substantive visa on 4 March 2014 because of factors beyond his control by 5 November 2015.

20. On 5 November 2015, Mr Tuminello made written submissions on behalf of the first named applicant, noting that the second named applicant had left Australia permanently in September 2014.  Mr Tuminello stated that he and the first named applicant believed that the latter’s subclass 457 visa application had been mishandled by the Department, which in effect caused him to cease to hold a substantive visa by the time of his subclass 457 visa application because:

    ·a nomination by Simpson Construction Co Pty Ltd of the first named applicant for a subclass 457 visa, and a subclass 457 visa application by the applicants, were lodged with the Department on 4 December 2013;

    ·on 3 February 2014, the Department invited Mr Tuminello by email to withdraw the applications due to new labour market testing (LMT) requirements introduced by Parliament;

    ·Mr Tuminello called the case officer and after discussion, it was determined that he best course of action would be to withdraw the application and reapply including the additional material addressing the LMT requirements.  At the time, he was assured that the bridging visa for the first named applicant would remain in place and there would be no issue in relation to his immigration status by withdrawing the application;

    ·on 6 March 2014, Mr Tuminello was notified that the nomination by Simpson Construction Co Pty Ltd was approved but when he inquired about the visa application, it appeared that it had been cancelled at the same time that the original nomination was withdrawn, hence leaving the first named applicant without a valid visa for approximately 1 month;

    ·Mr Tuminello and the first named applicant were totally unaware that that was the case and so immediately lodged a new subclass 457 visa application for the applicants, at which time they were told that they would have an opportunity to explain why the first named applicant did not hold a substantive visa at that time;

    ·the email request for the explanation was received but sent to Mr Tuminello’s junk email folder by accident and they were not able to respond before the refusal decision was made; and

    ·Mr Tuminello had provided the email correspondence between him and the Department in relation to this, and was of the view that he had done everything in his power to ensure that the first named applicant had a substantive visa or a bridging visa at all relevant times.  Although there may have been administrative errors, he had acted in good faith and the first named applicant was a valued employee of the company who was well settled in Australia.

21. The first named applicant appeared before the Tribunal on 12 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tuminello.

22. The first named applicant (the applicant) told the Tribunal that he started working for Simpson Construction Co Pty Ltd in 2013. His background was in landscape gardening as he had 2 Diplomas and 10 years of experience in this field.  Simpson was a civil construction company but they employed specialist landscape gardeners, which was the capacity in which he was employed.  At the time he started there, he was not sure if he would stay for long, as he held a subclass 417 (Working Holiday) visa valid until February 2014.  However, he was happy there and they were happy with him, so it was arranged that the company would sponsor and nominate him for a subclass 457 visa.  The applicant said that if this had not happened, he most probably would have returned to France when his subclass 417 visa expired in February 2014.

23. Mr Tuminello said that on behalf of the company, he lodged the nomination on 4 December 2013 but could not finalise the visa application for the applicant because the nomination was yet to be approved.  He told the Tribunal that he remembered lodging the visa application for the applicant with the Department in December 2013 as well as the nomination, but could not account for why the Department’s electronic records did not show that a visa application was lodged then.  He confirmed that the Department contacted him about the original nomination and advised him to withdraw it as it did not meet the newly-introduced labour market testing (LMT) requirements.  He did so, and his recollection is that he lodged a new nomination on 6 February 2014 which included information about LMT.  He has Departmental correspondence confirming this.

24. Mr Tuminello confirmed that he and the company regard the applicant as an excellent worker, and that the company would not have nominated and sponsored him for a subclass 457 visa otherwise.  He described the company as relatively small, with 30 employees, and said that it was like a family, and that the applicant fitted in well with everyone there.

25. Mr Tuminello said that the applicant was aware that his subclass 417 (Working Holiday) visa would expire on 3 February 2014 as he had discussed it with Mr Tuminello. Mr Tuminello said that he had in good faith reassured the applicant that he had a bridging visa after this date, as this is what he genuinely believed himself, based on his dealings with the Department.

26. Mr Tuminello conceded that there had been errors in relation to the applicant’s subclass 457 visa application but stressed that these were made by the company and the Department due to misunderstandings, and that the applicant was not responsible for any of them.

27. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The issue in the present case is whether the first named applicant meets the requirements of item 3004 of Schedule 3 to the Regulations for the purposes of cl.457.211 of Schedule 2 to the Regulations.

29. Relevantly to this matter, cl.457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl.457.211 so long as the last substantive visa they held was not one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.

30. In the present case, it is not disputed that the first named applicant did not hold a substantive visa at the time of making the visa application, and did not previously hold a subclass 771 or special purpose visa.

    Is criterion 3003 met?

31. Criterion 3003 applies to certain applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant, or were on 31 August 1994 the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the first named applicant was not such a person, and accordingly criterion 3003 does not apply in this case. 

32. Following the President’s Direction at 8.2 of ‘Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal now turns to consider the criterion in dispute as identified in the delegate’s decision.

    Is criterion 3004(c) met?

33. Criterion 3004(c) applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.

34. It requires the Tribunal to be satisfied that the first named applicant is not the holder of a substantive visa because of factors beyond his control.

35. The Department’s records indicate that the first named applicant last held a substantive visa on 3 February 2014, being a subclass 417 visa which had been granted on 21 February 2013. Mr Tuminello has submitted that he lodged a subclass 457 visa application in December 2013 on behalf of the applicant, but the Department’s records do not reflect this.

36. Based on the evidence before it, the Tribunal finds that the present application was lodged on 4 March 2014, approximately 1 month after the expiry of the applicant’s last substantive visa.

37. As noted above, the delegate refused the application under review on the basis that the first named applicant failed to meet cl.3004(c), as she did not accept that the applicant came to be a person without a substantive visa because of factors beyond his control.  In contrast, Mr Tuminello (the applicant’s employer) gave evidence that he handled both the sponsorship and nomination applications on behalf of Simpson Construction Co Pty Ltd, as well as the applicant’s subclass 457 visa application.  He was candid about the fact that the applicant was aware of the expiry date of his subclass 417 visa on 3 February 2014 and that he (Mr Tuminello) advised him that he held a bridging visa as of that date, based on Mr Tuminello’s understanding of advice he received from the Department.  He conceded that he had been incorrect in this advice and had not fully understood that a failure to lodge the visa application (regardless of the status of the company’s associated nomination application) would mean that the applicant no longer held a substantive visa after 3 February 2014. 

38. Mr Tuminello’s evidence, as confirmed by the Department’s records, indicate that Simpson Construction Co Pty Ltd was an approved standard business sponsor, then lodged a nomination of the applicant on 4 December 2013.  As this did not address the (then) newly introduced labour market testing requirements, the Department advised Mr Tuminello to withdraw it and lodge a new one addressing the new requirements.  He followed this advice on 3 February 2014.  The new nomination was lodged on 4 March 2014 and approved on 6 March 2014 (although there was some confusion as it appears that Mr Tuminello incorrectly lodged, and then withdrew, a permanent residence nomination on 4 March 2014).

1. The Tribunal has had regard to the evidence of the applicant and Mr Tuminello, and to the Department’s records, and accepts that the applicant authorised his employer, Mr Tuminello, to lodge the relevant documents in support of the subclass 457 visa application with the Department before his subclass 417 visa expired.  Although it was the applicant’s responsibility to apply for the subclass 457 visa, the Tribunal is satisfied that he assumed that his employer would have in fact complied with the visa requirements to lodge the subclass 457 visa application before the expiry of the subclass 417 visa.  The Tribunal further accepts that Mr Tuminello attempted to do so but became confused after he was advised to withdraw the employer’s first nomination.

2. In considering whether this situation constitutes factors beyond the applicant’s control, the Tribunal had regard to the decision in Su v Minister for Immigration & Anor [2007] FMCA 318, which also involved item 3004 of Schedule 3 and a subclass 457 visa application. While the Court dismissed the applicant’s case in that judgment, the judgment nevertheless provides guidance on the interpretation of facts beyond a person’s control. Smith FM, citing the judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, indicated at [17] that 2 useful points emerged from that case:

   The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring.  This test is in that sense ‘subjective’, rather than being directed at what would have been beyond the control of an abstract or ‘reasonable’ person.  A second point, is that what is ‘beyond control’ should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

3. The Tribunal has had regard to, and accepts, the evidence of the applicant and Mr Tuminello, regarding the particular circumstances of this case. It accepts that in this case, the applicant, by authorising Mr Tuminello to make the necessary arrangements for the company and himself, took all reasonable steps to ensure that the subclass 457 visa application was lodged by 3 February 2014, and that he was therefore not the holder of a substantive visa at the time the subclass 457 visa was made because of factors beyond his control. The Tribunal therefore finds that the applicant meets item 3004(c) of Schedule 3 for the purposes of cl.457.211 of Schedule 2 of the Regulations.

4. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria in Schedules 2 and 3 for a subclass 457 visa.

   DECISION

5. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the first named applicant meets the following criterion for a subclass 457 visa:

   ·Schedule 3 criteria 3004(c) for the purposes of cl.457.211 of Schedule 2 to the Regulations.

   Alison Mercer
   Member