Afraz (Migration)

[2021] AATA 3151

Afraz (Migration) [2021] AATA 3151 (30 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ammad Afraz

CASE NUMBER:  1822947

HOME AFFAIRS REFERENCE(S):          BCC2017/2329241

MEMBER:Alison Mercer

DATE:30 July 2021

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 30 July 2021 at 12:33pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Standard Business Sponsor stream – sponsor had withdrawn its nomination review application –no approved sponsor –applicant was not a subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, rr 2.72,2.75, Schedule 2, cl 457.223

CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 June 2017.

3. 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 (Cth) (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.

4. The delegate refused to grant the visa on 8 August 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination by his employer, BBQ Lounge Pty Ltd. The delegate found that the applicant did not meet the criteria for the Standard Business Sponsor stream and had not made any claims against any of the criteria in the other streams.

5. The Tribunal received a review application from the applicant on 8 August 2018, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Ms Sonal Agarwal, as his representative and authorised recipient for correspondence.

6. On 25 June 2021, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing, to be conducted by videoconference, on 16 July 2021.

7. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant appeared before the Tribunal by videoconference on 16 July 2021 to give evidence and present arguments.

9. Pursuant to s.359AA of the Act, the Tribunal advised the applicant that its records indicated that although his employer, BBQ Lounge Pty Ltd, had lodged an application for review of the refusal of its nomination of him with the Tribunal, it had subsequently withdrawn that application and the Tribunal had made a decision on 14 July 2021 that it had no jurisdiction to review that decision. The Tribunal further advised that this was relevant to the applicant’s own review application as it indicated that he was not the subject of an approved nomination and thus could not meet cl.457.223(4)(a), which would be a reason (or part of the reason) to affirm the Department’s decision to refuse to grant him a subclass 457 visa. The Tribunal asked the applicant whether he wished to comment on or respond to that information at the hearing, or whether he wished to request more time to do so.

10. The applicant elected to respond at hearing. The applicant confirmed with the Tribunal that he was aware that his employer, BBQ Lounge Pty Ltd, had withdrawn its review application in relation to its nomination of him as a Cook for a subclass 457 visa, and advised the Tribunal that his employer had had a more recent nomination application for him approved in March 2018 for the position of Chef (his current position within the business). The Tribunal discussed with him its legal view that without a nomination that had been made before 18 March 2018 and approved afterwards, it appeared that the applicant could not meet cl.457.223(4)(a). It further advised him that a new nomination lodged after 18 March 2018 could not be used to meet cl.457.223(4)(a) in relation to a subclass 457 visa application made prior to that date. The applicant indicated that he understood and had been advised by his agent that he could not make a subclass 482 visa onshore due to the s.48 bar. He told the Tribunal that he was in a very difficult position as he could not travel overseas to make a new visa application due to the great uncertainty of being able to return, due to the COVID-19 related travel restrictions.  

11. The Tribunal acknowledged the difficult situation in which the applicant found himself and noted that it was unable to give migration advice to applicants before it. It suggested that he discuss his options, in the event of a negative outcome at the Tribunal, with his agent and/or the Department, particularly with regard to any COVID related concessions for bridging visas or similar.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

13. 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.

14. It is not disputed that, at the time of the delegate’s decision, the nomination of the applicant as a Cook by his employer, BBQ Lounge Pty Ltd, had been refused by the Department, and therefore the applicant was not the subject of an approved nomination by a standard business sponsor that had not ceased. Nor is it disputed that BBQ Lounge Pty Ltd sought review of that decision with the Tribunal.

15. However, as discussed with the applicant at the hearing, the Tribunal made a decision on 14 July 2021 that it had no jurisdiction to review that refusal decision as BBQ Lounge Pty Ltd had withdrawn its review application in respect of the decision.

16. The Tribunal accepts that BBQ Lounge Pty Ltd had a new nomination approved in March 2021 for the applicant, for the position of Chef. However, this nomination was lodged after 18 March 2018.

17. As discussed with the applicant at the hearing, the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 commenced on 18 March 2018, and repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. Further, the amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas, and the effect of these amendments is that any future new sponsorship and nomination from another employer, even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined.

18. In the circumstances, it would be futile for the Tribunal to delay the making of the decision on this application for review.

19. In deciding not to defer making its decision, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.

20. While the Tribunal has sympathy for the applicant’s circumstances, which are not of his own making, it must nevertheless make its decision on the matter under review. The terms of cl.457.223(4)(a) do not confer any discretion on a decision maker (whether at the Department or Tribunal level) to waive its requirements, even where (as in this case) the applicant continues to work for, and to have the support of, his original nominating employer, and where that employer has had a new nomination of the applicant approved (albeit one that cannot be used for the purposes of the applicant’s subclass 457 visa application).

21. For the above reasons, the Tribunal must find that the requirements of cl.457.223(4)(a) are not met and therefore, 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    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

    (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.