Benjamin (Migration) - [2017] AATA 852

Benjamin (Migration) [2017] AATA 852 (26 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Naomali Shevanthi Paranavitane Benjamin
Mr Manathungage Sriyantha Jayasinghe
CASE NUMBER:  1506967
DIBP REFERENCE(S):  BCC2014/2879483
MEMBER:Danica Buljan
DATE:26 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 26 May 2017 at 2:57pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Sponsorship by standard business sponsor – Sponsor withdrew refusal review – No approved nomination

LEGISLATION
Migration Act 1958, ss 65, 351,359A
Migration Regulations 1994, Schedule 2, Part 457, cl 457.223
CASES

Ghori v Minister for Immigration and Citizenship [2011] FCA 759
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 (8 May 2013)
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under section 65 of the Migration Act 1958 (‘the Act’).
The applicants applied for the visa on 30 October 2014. At the time the 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 clause 457.223, which requires the first-named applicant (‘the applicant’) to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in subclause 457.223(4), which is set out in the attachment to this decision.
In the present case, specific claims have been made against subclause 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 clause 457.223.
The delegate refused to grant the visas on 30 April 2015 on the basis that the applicant did not meet the requirements of paragraph 457.223(4)(a) because her proposed employer did not have an approved nomination in place for her.
The applicant lodged an application for review with the Tribunal on 21 May 2015, and a copy of the primary decision was included with the application for review.[1] The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[1]     AAT Case File 1506967 (T1), f.1-3
[2]     D1 -   Departmental file, BCC2014/2879483, folio numbered 1-100
[3]     AAT Case File 1506967, folio numbered1-71
On 19 April 2017 the Tribunal sent the applicant an invitation under section 359A to comment upon the departmental and Tribunal records relating to her proposed employer, Sunnyhurst Aged Care Pty Ltd. Specifically, the Tribunal invited the applicant to comment on or respond to the fact that Sunnyhurst Aged Care Pty Ltd had withdrawn its application for review before the Tribunal on 18 April 2017.
Accordingly, the Tribunal letter noted that there was no evidence that the applicant was the subject of an approved business nomination that had not ceased, as required by paragraph 457.223(4)(a). The letter also stated that the applicant had until 3 May 2017 to provide her comments / response to the Tribunal.[4]
[4] T1, f.46-49
On 3 May 2017 the applicant’s representative forwarded to the Tribunal a statement from the applicant of the same date, in which the applicant referred to the emotional and mental difficulties she had suffered in relation to her visa application and the withdrawal by her proposed employer.[5]
[5] T1, f.50-51
The applicant appeared before the Tribunal on 26 May 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of paragraph 457.223(4)(a) in subclause 457.223(4). The relevant version of this regulation is extracted in the attachment to this decision.
The Requirement for an Approved Nomination
In order for the applicant to meet the requirements of paragraph 457.223(4)(a) there must be an approved nomination of an occupation relating to her by a standard business sponsor that has not ceased.
In this case, and according to the primary decision record the applicant provided with her application for review, the visa application was refused because Sunnyhurst Aged Care Pty Ltd did not have an approved nomination in place for the applicant.
In addition, and as set out in the section 359A invitation the Tribunal sent to the applicant on 19 April 2017, Sunnyhurst Aged Care Pty Ltd was refused approval of its business nomination on 20 May 2015. The Tribunal also invited the applicant to comment upon the fact that Sunnyhurst Aged Care Pty Ltd lodged an application for review on 21 May 2015 in respect of this decision, which it subsequently withdrew, and that this resulted in the Tribunal finalising this matter on 18 April 2017 as one in which it had no jurisdiction.[6]
[6] This information was included in the section 359A letter the Tribunal sent the applicant on 19 April 2017: T1, f.47.
The applicant did not dispute these matters at the hearing. As a result, the Tribunal is satisfied that Sunnyhurst Aged Care Pty Ltd does not have an approved nomination in favour of the applicant at the time of its decision in May 2017.
At the hearing the applicant stated that, due to her former migration agent’s negligence, she had not been aware that the Department had refused Sunnyhurst Aged Care Pty Ltd’s business nomination on 20 May 2015. Nor did she know that Sunnyhurst Aged Care Pty Ltd had withdrawn its application for review before the Tribunal in respect of that departmental decision. Rather, the applicant stated that she only learned of these matters once she received the Tribunal’s section 359A invitation dated 19 April 2017.
Notwithstanding, the applicant gave evidence that her former employer at Sunnyhurst Aged Care Pty Ltd had told her that he could not wait for the application for review to be processed, and that he had instead decided to employ his spouse in the nominated occupation.
In relation to whether she had found another employer willing to sponsor her for a subclass 457 visa, the applicant told the Tribunal that her age meant that she was no longer eligible for the grant of a subclass 457 visa. However, she added that her spouse hoped to lodge an application for temporary residence in Australia on the basis of his skills as a baker.
Accordingly, given the applicant’s oral evidence, the Tribunal notes that the applicant has not claimed, and there is little in the evidence to indicate, that she has found an alternative employer to sponsor her for the purposes of the subclass 457 visa.
As a result, having regard to the evidence as a whole, the Tribunal finds that there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased at the time of its decision. The Tribunal is also satisfied that there is no pending application for approval of a business nomination in favour of the applicant, or her spouse, before the Department at the time of its decision.
Therefore, the Tribunal finds that the applicant does not satisfy the requirements of paragraph 457.223(4)(a) and clause 457.223 at the time of its decision in May 2017. Given this finding, it is unnecessary for the Tribunal to consider the issue of whether the applicant meets the remaining requirements for a subclass 457 visa.[7]
[7] The Court in Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596 held that once the Tribunal has established that at least one essential criterion had not been satisfied, it was not obliged to make findings in relation to any other criteria.
To meet clause 457.321 the applicant’s spouse, the second-named applicant (the ‘secondary applicant’), must be the member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.
As the applicant does not satisfy the primary criteria for a subclass 457 visa, the Tribunal finds that the secondary applicant also does not satisfy clause 457.321 and, therefore, the criteria for a subclass 457 visa.
Other Matters
As noted above, the applicant gave oral evidence that she believed her former representative’s failure to inform her that Sunnyhurst Aged Care Pty Ltd was refused approval for its business nomination had disadvantaged her subclass 457 visa application. In addition, the applicant stated that her spouse would like to lodge an application for temporary residence in Australia on the basis of his skills as a baker.
As a result, the applicant queried whether the Tribunal could exercise whatever discretion it had in her favour. In particular, the applicant informed the Tribunal that she had lived in Australia for approximately 8 years, since her arrival as a student in 2008, and she and her spouse loved her Australia. The applicant also gave evidence that her two siblings were resident in Australia and she hoped to remain in Australia.
In other words, the applicant effectively requested that the Tribunal take into account her personal circumstances and waive the mandatory requirements for the grant of the visa. In the alternative, the applicant requested that the Tribunal adjourn the review under subsection 363(1)(b) of the Act, so that her spouse could lodge an application for the parties to remain in Australia.
(a)The Issues relating to the Applicant’s Former Migration Agent:
The Tribunal has had regard to the applicant’s claim that her former representative failed to inform her of the refusal of Sunnyhurst Aged Care Pty Ltd’s business nomination application, and its subsequent withdrawal of the related application for review. Accordingly, given the implications of these matters for the applicant’s subclass 457 visa application, the Tribunal recognises that they have placed the applicant in a difficult position.
On the other hand, and as noted during the hearing, the applicant’s visa application was refused on 30 April 2015 because her proposed employer did not have an approved nomination in place for her; a matter the applicant did not dispute.
In addition, in assessing the applicant’s claim of alleged negligence, or poor conduct, on the part of her former representative, the Tribunal has had regard to the general principles of agency in Australian law.[8] These principles indicate that the relationship between principal and agent can arise in several ways, including by agreement, the conduct of the parties or the operation of law. In addition, the Courts have held in the immigration context that the acts or omissions of an agent who an applicant has engaged to do certain things on their behalf are not circumstances that can generally said to be beyond a person’s control.[9]
[8] T1, f.69, See The Laws of Australia, Legal Online, Geoff Masel (1993 – 2001)
[9] See Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22 ( 5 February 1987) at [18]
The Tribunal acknowledges that the former migration agent’s alleged failure to inform the applicant of the refusal of her proposed employer’s business nomination application appears to have left her in a difficult position, particularly in terms of identifying options that might be relevant to her circumstances, given her age, her spouse’s skills and the desire to remain in Australia. However, neither the applicant nor her current migration agent went far as to suggest that her former representative had acted outside the authority she had conferred upon him.
More importantly, regardless of the existence of these matters they do not provide any basis upon which the Tribunal can disregard the requirements of the Act and the Regulations. Notably, the wording of paragraph 457.223(4)(a) does not provide the Tribunal with any discretion to take these factors into account in order to find in the applicant’s favour.
Accordingly, whilst these matters may be relevant to the issue of possible Ministerial intervention under section 351 of the Act (considered below), the Tribunal does not consider it to be relevant to the issue of whether or not the applicant satisfies the requirements of clause 457.223.
(b)The Tribunal Discretion to Adjourn the Review:
The Tribunal has also considered whether the applicant’s claims provide a basis for it to adjourn the review in her favour under subsection 363(1)(b) of the Act. In considering this discretion, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[10] and Manna v Minister for Immigration and Citizenship[11] where the Courts have held that it is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[12] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[13] which also considered this issue.
[10] [2002] FCA 617
[11] [2012] FMCA 28
[12] [2013] HCA 18 (8 May 2013)
[13] [2014] FCAFC 1 (4 February 2014)
The Tribunal notes that in this case the applicant provided a copy of the primary decision record relating to the refusal of her subclass 457 visa application with the application for review she lodged on 21 May 2015.
In addition, the Tribunal has taken into account that it wrote to the applicant under section 359A of the Act on 19 April 2017. In this letter the Tribunal set out the relevant departmental and Tribunal records, and it also explained the consequences of this information for the applicant’s application for review.
The Tribunal further notes that the applicant was represented by a registered migration agent when she lodged her application for review on 21 May 2015. In addition, the Tribunal received written advice from the applicant on 9 March 2017[14] and 7 April 2017[15] when she changed her representative for the purposes of the application for review. Importantly, the Tribunal further observes that its section 359A invitation was issued to the applicant through her current representative.[16]
[14]T1, f.36
[15]T1, f.44
[16]T1, f.49
Accordingly, the Tribunal gives weight to the fact that the applicant has had a copy of the reasons for the refusal of her subclass 457 visa for approximately 24 months at the time of decision in May 2017. In addition, she has also engaged three separate registered migration agents to assist her during the processing of the application for review, persons who should be in a position to appropriately advise her about her immigration options.
Correspondingly, the Tribunal has considered the applicant’s claim that her spouse would like to apply for temporary residence on the basis of his skills as a baker. However, the applicant and/or her current representative did not present any evidence of a pending visa application, or associated business sponsorship or nomination applications in favour of her spouse, that would justify the Tribunal adjourning the current application for review pending the outcome of any such application.
The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[17], Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process”.
[17] [2011] FCA 759 at [22]
In the present matter, the applicant has not repeatedly applied for extensions of time. However, the evidence before the Tribunal is that the applicant does not have an approved sponsor with an approved business nomination in her favour. There is also little in the evidence to suggest that another employer has lodged a business nomination application in favour of either the applicant or her spouse that is likely to be positively determined by the Department in the reasonably foreseeable future.
As a consequence, there is a degree of futility to the application for review in this case. In these circumstances, the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to have relevance to the exercise of its discretion to adjourn the review in the applicant’s favour.
Accordingly, for the reasons set out above, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review in the particular circumstances of this case. As a result, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.
(c)Ministerial Intervention under Section 351 of the Act:
Although the applicant and her representative did not specifically request referral to the Minister under section 351 of the Act, the Tribunal has considered whether the circumstances of this case would make this appropriate. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.
The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.
However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.
In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the Minister’s Guidelines on Ministerial Powers. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.
The Tribunal does not seek to dismiss or diminish the concerns the applicant expressed at the hearing, or how these might affect her and her spouse, as well as her siblings in Australia. The Tribunal also recognises the applicant’s very real desire to live in Australia with her spouse and siblings, having arrived as a student in September 2008 and having completed her ‘Graduate Diploma in Counselling’ here.
Notwithstanding there is no evidence that the applicant has found an employer willing to sponsor her for a subclass 457 visa. Although the Tribunal acknowledges that these claims do stir a level of compassion, the Tribunal considers that the emotional, financial and/or social impact upon the applicant, her spouse and family of the decision to refuse the subclass 457 visa application needs to be balanced against the fact that the evidence before the Tribunal indicates that they do not meet the criteria for this visa subclass.
As noted previously, the applicant provided the Tribunal with a copy of the primary decision record that set out the basis for the refusal of his visa application, and she was formally invited to comment on 19 April 2017 regarding the factual matters relevant to her application for review. She has also had the benefit of three registered migration agents to assist her with the application for review. As a result, this is not a case where the applicant could reasonably claim that she had grounds in which to believe that her application for a subclass 457 visa could succeed.

Accordingly, the Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’. Nevertheless, on the basis of the limited evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister. The Tribunal notes that the applicant can still make a request directly to the Minister.
CONCLUSION
Accordingly, based on the findings made above, the Tribunal has no alternative but to affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Danica Buljan
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.
[Tribunal emphasis]

- Accessed 27 April 2017 – T1, f.42