1507959 (Migration)

1507959 (Migration) [2015] AATA 3832 (10 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jaspreet Kaur
Mr Gursimranjit Singh
Miss Arshpreet Kaur
CASE NUMBER:  1507959
DIBP REFERENCE(S):  BCC2013/437420
MEMBER:Alison Mercer
DATE:10 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:
·cl.457.223(4)(a) of Schedule 2 to the Regulations; and
·cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 10 December 2015 at 12:05pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visa on 15 March 2013.
At the time the visa application was lodged, Class UC contained the following subclasses: subclass 456 and subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a subclass 456 visa. 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.
The delegate refused to grant the visas on 3 December 2013 on the basis that cl.457.223(4)(d) was not met because the delegate was not satisfied that the position of Customer Service Manager for which the first named applicant had been nominated was genuine. The delegate refused to grant the second and third named applicants visas on the basis that they were not members of the family unit of a person who held a subclass 457 visa, and there was no evidence that they met the primary visa criteria in their own right.
The applicants lodged an application for review with the Tribunal on 12 December 2013. On 5 March 2015, the Tribunal (differently constituted) affirmed the decisions to refuse to grant the applicants subclass 457 visas on the basis that the first named applicant was no longer the subject of an approved nomination, as required by cl.457.223(4)(a). The Tribunal had, on the same date, affirmed the decision to refuse to approve the nomination application made by the first named applicant’s proposed employer, Omar Cheese Pty Ltd.
The applicants sought judicial review of the decision to refuse them subclass 457 visas. On 2 June 2015, the matter was remitted by consent from the Federal Circuit Court of Australia to the Tribunal (as presently constituted).
On 26 June 2015, the Tribunal wrote to the applicants to invite them to attend a hearing on 22 July 2015.
On 17 July 2015, the Tribunal received an email from the applicants’ registered migration agent Dr Vijay Sharma advising that the first named applicant’s employer had lodged an application for judicial review of the Tribunal (differently constituted) decision to affirm the Department’s decision to reject the employer’s nomination application. The agent requested that the Tribunal defer the hearing and making its decision until the Federal Circuit Court had made its decision on the nomination decision.
On the same date, a Tribunal officer acting on the instructions of the Presiding Member rang the applicants’ agent to advise that the Presiding Member had considered the request but declined to defer the hearing, given that the Court case was not scheduled until February 2016. The agent was advised that the hearing would proceed on 22 July 2015 as scheduled and that the applicants could request further time following the hearing to provide additional information.
The first and second applicants appeared before the Tribunal on 22 July 2015 to give evidence and present arguments. The Tribunal also received submissions from the applicants’ agent.
The Tribunal put information to the applicants pursuant to s.359AA of the Act; namely, that the Department had rejected the first named applicant’s employer’s nomination of her in October 2014, and that the Tribunal (differently constituted) had affirmed that decision on 5 March 2015, and that this meant (notwithstanding the Federal Circuit Court appeal), there was no approved nomination at the time of the Tribunal’s decision. The Tribunal explained that the relevance of this information to the decision under review was that, although the original refusal of the applicants’ subclass 457 visa applications had been because the Department officer did not consider that the first named applicant’s position was genuine (cl.457.223(4)(d)), this had been superseded by the fact that the first named applicant was not the subject of an approved nomination by her employer and thus could not satisfy cl.457.223(4)(a). The Tribunal explained that if it found that there was no approved nomination, it would have to find cl.457.223(4)(a) was not met by the first named applicant and this would be a reason to affirm the decision under review as this was a mandatory requirement for the first named applicant to meet.
After a short adjournment to consult her agent, the first named applicant indicated that she understood the information and its relevance to the decisions under review and wished to respond. She told the Tribunal that her employer’s first nomination of her as a Customer Service Manager was approved, but after it expired, a second nomination was rejected by the Department. Then the Tribunal (differently constituted) affirmed the refusal decision. Her employer had now lodged an application for judicial review of the Tribunal’s decision of 5 March 2015, but she was unsure of the basis on which the Tribunal’s decision was being challenged. The applicant told the Tribunal that since the Department’s refusal of the nomination and her visa application, her employer’s business had expanded significantly. Woolworths had approached her employer and they now had contracts to supply cheese to Woolworths in Victoria and Queensland. Her role had expanded as a result of this development and she had more managerial responsibilities.
The applicants’ agent indicated that he had spoken with the first named applicant’s employer and that the employers were considering whether or not to lodge a new nomination of the first named applicant. In response to the Tribunal’s query, the agent said that he was unsure on what basis the Tribunal’s previous decision to affirm the refusal of the nomination was being taken to the Court but that he would try to find out. The Tribunal discussed with the applicants and their agent its preliminary view that the judicial review application appeared to be re-agitating the merits of the Tribunal decision, rather than having identified an error of law (according to the response of the Department’s lawyers as provided by the applicants to the Tribunal). The Tribunal indicated that it did not consider it reasonable to defer its decision until February 2016 to await the outcome of the judicial review application, given the timeframe involved and the lack of prospects for success.
The Tribunal further indicated that it would defer its decision for a week after the hearing (to 29 July 2015) for the applicants and their agent to confer with the first named applicant’s employer, and then to advise whether a further nomination application would be made to the Department. The Tribunal discussed with them that it gave no guarantee that it would defer making its decision in this case, as there was ample case law indicating that it was not unreasonable for the Tribunal to proceed to a decision without awaiting the outcome of an appeal on a nomination, or a new nomination application, but that it would consider any such request. The Tribunal indicated that it would assist it to do so if it received information from them about any additional information to be provided that would give any new nomination application a higher chance of success than the previous one, and an estimate of how long the Department would take to process a new nomination application.
The Tribunal indicated that in view of this having become the significant issue in the applicants’ case, it did not propose to canvass whether the first named applicant met the ‘genuineness’ criterion in cl.457.223(4)(d), as this was irrelevant unless she could satisfy cl.457.223(4)(a).
On 29 July 2015, the Tribunal received an email from the applicants’ agent advising that he had received information from the first named applicant’s employer that, in his opinion, significantly improved the employer’s chance of having a new nomination application approved by the Department. He asked for an extension of time to 2 August 2015 to provide more detailed information. He was advised by a Tribunal Officer that the Tribunal required the further information by 5 August 2015.
On 5 August 2015, the Tribunal received a submission with accompanying scanned documents by email from the applicants’ agent. In summary, he indicated that the employer already supplied 15 Woolworths stores in Victoria, and was about to expand its products into 200 stores in Queensland in the middle of August 2015 and had a genuine need for the nominated position of Customer Service Manager to oversee this, given that further expansion into other states was anticipated later in the year. He noted that the nominated position was not new and that the expansion of the company made the position more significant within the company.
On 20 August 2015, the applicants’ agent advised that the average processing time for a nomination application was 2 weeks to 3 months, in his experience. He asked for the Tribunal to defer its decision for a reasonable period to allow the employer to lodge a new nomination application.
On 23 September 2015, the Tribunal advised the agent by email that it agreed to defer its decision for 2 months and would review the situation on 25 November 2015. It requested that he keep the Tribunal updated of any developments during that period, including confirmation that a new nomination had been lodged.
On 30 September 2015, the applicants’ agent advised that a new nomination had been lodged and was expected to be finalised before the end of October 2015. He undertook to advise the Tribunal of any further updates.
On 27 October 2015, the applicants’ agent advised the Tribunal by email that a nomination had been approved in respect of the first named applicant for the occupation of Cook, with the nominator being a different employer, The Little Mexican Pty Ltd. He stated that both employers were keen to retain the first named applicant but that the original employer was considering selling the business, and therefore the first named applicant accepted the offer of employment with the new employer, whose nomination approval was attached. The attached document was a letter dated 23 October 2015 from the Department to The Little Mexican Pty Ltd, approving that company’s nomination of the occupation of Cook.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The initial issue in the present case was whether the primary visa applicant meets the requirements of cl.457.223(4)(d), as the delegate was not satisfied that the originally nominated position of Customer Service Manager with the original nominator, Omar Cheese Pty Ltd, was genuine. Subsequently, it became apparent that although Omar Cheese Pty Ltd’s original nomination of the first named applicant had been approved by the Department, it had expired by the time that the Tribunal was considering the matter on review. A second nomination application made by Omar Cheese Pty Ltd for the first named applicant in the position of Customer Service Manager was refused, and that refusal was affirmed by the Tribunal (differently constituted) on 5 March 2015. Accordingly, the issue of whether the first named applicant met cl.457.223(4)(a), which requires that there be an approved nomination of an occupation relating to the first named applicant by a standard business sponsor, became relevant to the review.
The Tribunal has considered both these criteria.
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
It is not disputed that there is no current approved nomination of the first named applicant by her original employer, Omar Cheese Pty Ltd, for the position of Customer Service Manager.
However, the Tribunal has now received evidence from the applicants’ agent that a new nomination by a new employer, The Little Mexican Pty Ltd, was approved by the Department on 23 October 2015 for the position of Cook. The Tribunal is satisfied, from reviewing the Integrated Client Services Environment (ICSE) records of the Department, that The Little Mexican Pty Ltd is an approved standard business sponsor, that the nomination approved on 23 October 2015 was made in respect of the first named applicant, and that it has not ceased.
Accordingly, the Tribunal is satisfied that the requirements of cl.457.223(4)(a) are met.
Nominated position is genuine
Clause 457.223(4)(d)(ii) requires that the position associated with the nominated occupation is genuine. The Tribunal notes that from 1 July 2013, nomination applications are subject to the same requirement (see r.2.72(10)(f)).
It is not disputed that the first named applicant’s original employer’s first nomination was not subject to the above requirement as it was made and approved prior to 1 July 2013. Nor is it disputed that its second nomination, made after 1 July 2013, was found not to meet the above ‘genuine position’ requirement and that this finding was affirmed by the Tribunal (differently constituted) on review.
Since then, a new nomination in respect of the first named applicant by The Little Mexican Pty Ltd has been lodged with, and approved by, the Department. The Tribunal is satisfied that the Department assessed that nomination as satisfying r.2.72(10)(f) and found that the nominated occupation of Cook was genuine. On this basis, the Tribunal is therefore also satisfied of this, and finds that cl.457.223(4)(d)(ii) is now met.
In the circumstances, the Tribunal considers it appropriate to remit the matter for reconsideration. The Department must now decide whether the first named applicant meets the remaining requirements for a subclass 457 visa in the newly nominated position of Cook.
As the second and third named applicants applied on the basis of being members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:
·cl.457.223(4)(a) of Schedule 2 to the Regulations; and
·cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations.
Alison Mercer
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)     each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)     the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea)if:
(i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant; and
(iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant:
(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

[2015] AATA 3832

10 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Remedies

Procedural Fairness

Jurisdiction

Statutory Construction