1601798 (Migration) - [2016] AATA 4210

1601798 (Migration) [2016] AATA 4210 (5 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yunling Huang
CASE NUMBER:  1601798
DIBP REFERENCE(S):  BCC2014/2408060
MEMBER:Miriam Holmes
DATE:5 August 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 05 August 2016 at 12:15pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 23 September 2014.
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.
The delegate refused to grant the visa on 20 December 2014 on the basis that cl.457.223(4)(a) was not met because a nomination of an occupation in relation to the applicant had not been approved under section 140GB of the Act.
On 5 January 2015 the applicant made an application for review of the decision to refuse the subclass 457 visa application. On 7 May 2015 the Tribunal made a decision that it had no jurisdiction to review the application as there was no MRT- reviewable decision as defined in s.338(2) of the Act. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 10 February 2016 the Federal Circuit Court made orders by consent that a writ of certiorari issue quashing the Tribunal’s decision dated 7 May 2015 and a that writ of mandamus issue requiring the Tribunal to reconsider and determine the application for review made on 5 January 2015 according to law.
The applicant appeared before the Tribunal on 22 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative, Mr Bustos, did not attend the Tribunal hearing. The Tribunal discussed with the applicant the non-attendance of her representative. The applicant stated that the representative had told her that the applicant may not need additional material at the hearing and there was no reason for him to attend the Tribunal. There were no other reasons that he did not attend. The Tribunal asked if she was happy to proceed with the hearing and the applicant replied that the hearing can proceed. She went on to state that it was not that she did not request her representative to attend but that her representative said that not a lot of questions will be asked and it was not necessary for him to come. During the hearing the applicant took numerous notes which she stated she had taken with a view to discussing with her representative after the hearing. The Tribunal deferred making any decision in this matter and gave the applicant 7 days after the hearing to allow the applicant an opportunity to speak again with her representative after the hearing, and to give her the opportunity to provide further submissions regarding the adjournment request.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Request to Postpone the Hearing and defer making a decision
On 18 March 2016 the Tribunal sent a notice to the applicant under s359A of the Act inviting her to comment on information that on 16 March 2016 the Tribunal affirmed a decision to refuse the nomination application made by Nutritional Choice Australia Pty Ltd for an appointment as a Sales and Marketing Manager in respect of the applicant.
In the response dated 15 April 2016 to the s.359A notice the applicant requested that the Tribunal defer any listing of the hearing of this review application until a judicial review application by Nutritional Choice Pty Ltd in respect of the Tribunal’s decision on 16 March 2016 was finalised. The Tribunal determined to schedule a hearing and consider submissions at the hearing.
At the hearing held on 22 June 2016 the applicant requested that a decision in relation to the review application be deferred pending the outcome of the judicial review proceedings in the Federal Circuit Court in the related nomination refusal decision. The applicant gave evidence that the judicial review application was listed for a directions hearing on 14 September 2016 and her lawyer advised her that the final hearing would 1 -2 months after the directions hearing. In the alternative she requested that the Tribunal defer making a decision until after the directions hearing at the Federal Circuit Court, when they would have the likely date for the Federal Circuit Court hearing.
The Tribunal had regard to the following matters in assessing whether to defer making a decision in this application for review.
The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[^1] and Manna v Minister for Immigration and Citizenship[^2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5].
[1] [2002] FCA 617
[2] [2012] FMCA 28
[3] [2013] HCA 18 (8 May 2013)
[4] [2014] FCAFC 1 (4 February 2014)
[5] [2014] FCA 915 (28 August 2014)
The Tribunal had regard to the history of the visa application and related nomination application. The Tribunal took into consideration the findings as set out below regarding the sequence of events prior to the review application being lodged with the Tribunal. The review application was made to the Tribunal in 5 January 2015. The Tribunal initially determined there was no jurisdiction on the basis there was no reviewable MRT decision as at the time the review application was made. By order of the Federal Circuit Court, the review application was remitted back to the Tribunal by consent on 10 February 2016.
The Tribunal did not list this review application for hearing but waited until the review application by the sponsor in relation to the decision to refuse the nomination application had been determined. On 16 March 2016 the Tribunal affirmed the decision to refuse the nomination application by Nutritional Choice Australia Pty Ltd. On 18 March 2016, under the process in s359A of the Act, the Tribunal invited the applicant to comment by 1 April 2016 on the information that the decision to refuse the nomination application had been affirmed. The applicant did not respond within time to the s.359A notice but replied over 2 weeks later on 15 April 2016. The Tribunal asked the applicant why there was a delay in the response. Initially she responded that she was not sure and did not know why the response was late and said she did not know the reason for the delay. Then she stated that she recalled that at the time her agent was overseas with his family and that was her impression of what happened. She stated that the agent sent her text messages.
The Tribunal considered the response dated 15 April 2016 but noted that no detailed information had been provided in response to the adverse material nor were many details provided regarding the adjournment request on the basis of a pending judicial review proceedings. On 20 May 2016 the Tribunal invited the applicant to a hearing on 22 June 2016 to discuss with the applicant the postponement request and whether the applicant met the requirements in cl.457.223(4)(a). The Tribunal notes that under s.359C the applicant’s right to a hearing was lost and the applicant has no entitlement to a hearing due to the late response to the s.359A notice. However, the Tribunal considered it appropriate to discuss the review application and adjournment request with the applicant.
On 22 June 2016 the applicant attended the hearing and produced a number of documents (as described below). The applicant stated that she provided the documents as she considered they were relevant to the nomination approval and thereby would be relevant to the visa refusal decision review application. As noted below none of the documents demonstrated that there is an approved nomination in respect of the applicant, and therefore did not assist the Tribunal in respect of the substantive issue before the Tribunal. Further, the documents did not include any information regarding any new nomination application by Nutritional Choice Australia Pty Ltd.
The applicant has been on notice since 20 December 2014 that she does not meet the requirement in cl.457.223(4)(a). The review application was initiated on 5 January 2015 and the applicant has been on notice that the requirement in cl.457.223(4)(a) was the criteria to be considered on the review application. At the hearing the applicant gave evidence that no further nomination application had been lodged in respect of the applicant.
After the review application was remitted by consent the Tribunal deferred listing this matter for hearing. On 16 March 2016 the related review application by Nutritional Choice Australia Pty Ltd was determined. The Tribunal considered that it was appropriate to defer the hearing on the review application until the related pending review application had undergone the process of merits review.
The Tribunal considered the request to adjourn the review application until the completion of the judicial review proceedings. The Tribunal considered this adjournment request was in essence an application to adjourn the matter indefinitely as there is a substantial degree of uncertainty as to when the judicial review proceedings would be finalised. The Tribunal does not have any reliable information as to when the judicial review application might be listed for a full hearing, noting it will depend on the Federal Circuit Court’s resources and hearing arrangements. The applicant stated that a directions hearing has been scheduled for 14 September 2016 – however this is only a procedural hearing and it is unlikely to resolve the substantive matter. The applicant stated that her lawyer advised her the substantive hearing would occur 1 or 2 months after the directions hearing. As discussed at the hearing, the Tribunal is mindful in its experience that the substantive hearing may be many months after the directions hearing. There of course may also be additional time required by the Court to prepare a judgment.
Further, there is a possibility that at the conclusion of the Federal Circuit Court process the sponsor may seek to pursue a further appeal from that decision. In the event the Court proceedings were favourable to the sponsor then the matter is likely to be remitted for further consideration by the Tribunal in any event, which will result in further delay. The Tribunal’s further consideration may involve not only one issue regarding the nomination requirements, but a range of requirements as set out in r.2.73 and r.2.72. Consequently, the resolution of the related nomination application may take an extended period of time. The Tribunal appreciates that the outcome of the judicial review proceedings and any subsequent Tribunal review may well lead to an alternative outcome in the sponsor’s nomination application. However, the Tribunal is mindful of its objectives as set out in s.2A of the Administrative Appeals Tribunal Act including to provide a mechanism of review that is fair, just economical, informal and quick and promote public trust and confidence in the decision-making of the Tribunal. The Tribunal does not consider an adjournment of the review application until a judicial review application (or any potential subsequent review) is determined in respect of the sponsor’s nomination decision is reasonable in the circumstances. The judicial review process and the outcome of any judicial review process will occur at some indefinite time in the future, and may well take a year or more. In this case, the sponsor has had the opportunity for a full merits review by the Tribunal of the decision to refuse the nomination application. The Tribunal has awaited the outcome of that merits review process before considering the applicant’s review application. It is appropriate and in accordance with the Tribunal’s objectives to now consider and determine the related visa refusal review application.
The applicant’s representative submits that the applicant meets all the necessary elements for the grant of a sc457 visa with the current exception, that only one element is not met – that an approved nomination be in place. The Tribunal notes that there are number of criteria set out in Part 457 of the Act for the applicant to meet before a grant of the visa can be made. The Tribunal does not accept on the material available that there is only one outstanding matter, namely the requirement in cl.457.223(4)(a). Whilst the applicant provided evidence to the Tribunal in respect of other criteria in cl.457.223(4) such as the IELTS test and qualifications, the Department delegate and the Tribunal have not determined on the material available that the applicant does meet all the criteria in cl.457.223(4) and other visa requirements, for example cl. 457.224. The Tribunal considers that it is premature to assert that the subclass 457 visa criteria have been met by the applicant in the absence of an assessment by the delegate or by the Tribunal on all the other criteria. For example, further evidence may be necessary for the Tribunal to consider whether the applicant meets the requirements in cl.457.224 or cl.457.223(4)(d) or (da). Consequently, the outcome of the judicial review proceedings may only resolve one element to be considered on a review and there may be other elements in Part 457 that need to be assessed before any visa can be granted.
The representative submits that a failure not to delay the will cause significant prejudice to the review applicant. The Tribunal appreciates that by not deferring the review application that the applicant does not satisfy the criteria and therefore the visa cannot be granted. However, the applicant has since December 2014 had time to pursue other options and secure other employment and to seek another sponsor to lodge another sponsorship application and nomination application in the period for the purposes of the sc457 visa application, but she has not pursued such a course. Further, the refusal of the sc457 application does not preclude the applicant from making a subsequent sc457 visa application offshore and being granted a sc457 visa. On the information provided the Tribunal did not consider that she will suffer significant prejudice.
The Tribunal considered it unlikely the judicial review proceedings would have reached a conclusion by 14 September 2016 and therefore there was little utility in adjourning this application until after the first return date on 14 September 2016.
After considering the request to defer making a decision pending the outcome of the judicial review application, for the reasons set out above, the Tribunal declines the request.
After the hearing on 22 June 2016 the Tribunal gave the applicant further time to consult with her representative. On 27 June 2016 the applicant’s representative provided a copy of a Department letter dated 27 June 2016 acknowledging that a new nomination application had been lodged by Nutritional Choice Australia Pty Ltd in respect of the applicant. The representative submitted that the applicant “instructs that that they are seeking a delay to the decision in the current matter… until such time as the nomination application has been decided”.
The Tribunal considered whether the decision should be deferred until the outcome of the new nomination application but the Tribunal decided to decline to defer making a decision in this matter. The visa application was made on the basis of a nomination application by Nutritional Choice Australia Pty Ltd in respect of the applicant. As set out in the delegate’s decision record, Nutritional Choice Australia Pty Ltd first lodged a sponsorship application which was refused on 19 November 2014. On 25 November 2014 Nutritional Choice Australia Pty Ltd re-lodged a new sponsorship application. A nomination application was lodged. The nomination application was refused by the delegate. That nomination application has been the subject of a delegate decision and a merits review process. The Tribunal affirmed the refusal of the nomination application. The Tribunal deferred considering this related review of the visa application – for the delegate’s decision of the nomination application to be reviewed by the Tribunal. The Tribunal considers it was appropriate to defer considering this review application in respect of the visa refusal until the delegate’s decision on the nomination application was reviewed by the Tribunal. That review of the nomination application has been completed. The request to defer making a decision for a second nomination application to be considered by a delegate means that the applicant is seeking that this review application be deferred for an unknown period for a delegate to consider a new nomination application by the same employer, in respect of the same nominee. The outcome of that nomination application is unknown and the nomination application may be approved or refused. The Tribunal does not consider that it is appropriate for the Tribunal to defer making a decision in relation to the visa application for an unknown period whilst the sponsor pursues another nomination application, in circumstances where a delegate and the Tribunal have already assessed a nomination application by the same employer in respect of the same nominee and determined it does not meet the nomination requirements. Further, the Tribunal took into consideration that the new nomination application was lodged after the hearing of the visa refusal review application on 22 June 2016 ( noting the applicant stated at the hearing no new nomination application had been lodged) and several months after the Tribunal affirmed the first nomination application refusal decision. It appears no action was taken by the sponsor to make a new nomination application until several months after the Tribunal decision on 16 March 2016 to affirm the decision to refuse the nomination application.
In Chhetri v MIBP [2015] FCCA 3101 the Federal Circuit Court considered similar circumstances, where there was a request for an adjournment pending the outcome of a new nomination application and where the Tribunal had already considered a nomination application by the same employer for the same applicant and the same position. The Court noted that whilst it was relevant to take into consideration that a new nomination application had been lodged, in the particular circumstances it was not unreasonable to refuse to grant an adjournment.
After considering, the period of time since the visa application was lodged, that the Department and the Tribunal have already considered a nomination application by the same employer in respect of the same nominee and determined that the nomination application did not meet the necessary requirements, and the delay in the same employer making a new nomination application after the first nomination application was determined by the Tribunal, and that the applicant is seeking a delay for an unspecified period in which the new nomination application will be considered by the Department, and that the new nomination application may not be approved, the Tribunal declines to defer making a decision in this review application until the outcome of the new nomination application is known.

The Tribunal considers that it is now appropriate in line with its objectives to consider and determine Ms Huang’s review application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).
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.
The Tribunal made the following findings:
·    On 23 September 2014 the applicant made an application for a subclass 457 visa. The visa application as made on the basis that her sponsoring employer was Nutritional Choice Australia Pty Ltd;
·    On 19 November 2014 a Department delegate made a decision to refuse the application for standard business sponsorship lodged by Nutritional Choice Australia Pty Ltd. As the application for standard business sponsorship had been refused the Department determined that the nomination application was unable to be assessed.
·    On 21 November 2014 the applicant was provided an opportunity to either comment on her intentions in relation to the visa application or withdraw the visa application in writing.
·    On 25 November 2014 Nutritional Choice Australia Pty Ltd relodged a new standard business sponsorship application.
·    On 19 December 2014 a department delegate approved the new standard business sponsorship application by Nutritional Choice Australia Pty Ltd.
·    On 25 November 2014 Nutritional Choice Australia Pty Ltd lodged a new nomination application for approval in respect of the applicant.
·    On 20 December 2014 a department delegate refused the nomination application lodged by Nutritional Choice Australia Pty Ltd in respect of Ms Huang.
·    On 16 March 2016 the Tribunal affirmed the decision to refuse the nomination application lodged by Nutritional Choice Australia Pty Ltd in respect of Ms Huang.
·    On or about 27 June 2016 a new nomination application was lodged by Nutritional Choice Australia Pty Ltd in respect of Ms Huang.
On 18 March 2016 the Tribunal sent a notice to the applicant under s359A of the Act inviting the applicant to comment by 1 April 2016 on the information that he Tribunal had affirmed the decision to refuse the nomination application lodged by Nutritional Choice Australia Pty Ltd in respect of Ms Huang. On 15 April 2016, out of time, the representative responded and as follows:
·The visa applicant meets all the necessary elements for the grant of the a sc457 visa with the current exception of one;
·The only element not yet met by the applicant is that an approved nomination be in place.
·The refused nomination by the nominating business is being appealed to the Federal Court for reason of jurisdictional error. A number of possible errors have been identified that warrant judicial review.
·The visa applicant does not waive her right to a hearing.
·The visa applicant does request that the listing of any hearing be delayed until the judicial review is finalised. A failure to not delay will cause significant prejudice to the review applicant.
The representative and the applicant did not submit or provide any evidence that the applicant met the requirement in cl.457.223(4)(a)(i).
As at the date of the hearing on 22 June 2016, the applicant stated that she is not the subject of an approved nomination. The applicant provided various documents regarding her English language competency, her qualifications and recent business documentation. The applicant stated that she provided these documents as they were relevant to the nomination application and thereby she believed they were relevant to the visa application. As discussed at the hearing none of the documents demonstrated that there is an approved nomination in respect of the applicant, and therefore did not assist the Tribunal in respect of the substantive issue before the Tribunal.
On the evidence available, the Tribunal is not satisfied that there is an approved nomination in respect of the applicant and therefore the applicant does not meet the requirement in cl.457.223(4)(a)(i).
For these reasons the requirements of cl.457.223(4)(a) are not met.
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Miriam Holmes
Senior 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
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
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.