Chowdhury (Migration)

[2020] AATA 2750

Chowdhury (Migration) [2020] AATA 2750 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nahid Chowdhury
Mr Md Saiful Alam
Master Yusha Muhammad
Miss Hamna Yafeen

CASE NUMBER:  1906558

DIBP REFERENCE(S):  BCC2017/4908325

MEMBER:Alison Mercer

DATE:26 June 2020

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 June 2020 at 5.30pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship stream – no approved nomination – visa subclass now repealed – new criteria and procedure for new subclass – second applicant’s expressions of interest for other subclasses – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a), 457.311

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 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 visa applicants applied for the visa on 21 December 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 (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 visas on 4 March 2019 on the basis that cl.457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination by a standard business sponsor (SBS). The delegate refused to grant visas to the second, third and fourth named applicants (the applicant’s spouse and children) as they did not meet the secondary visa criteria to be 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.

5. The Tribunal received a review application from the applicants on 19 March 2019, which was accompanied by a copy of the delegate’s decision.

6. The Tribunal exercised its discretion to hold a hearing in this matter by telephone. The hearing was heard during the COVID19 pandemic. The Tribunal determined that it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing were not to be conducted by telephone.

7. In the hearing invitation letter, the Tribunal noted that the applicants’ subclass 457 visa applications were refused because the applicant did not have an approved nomination from her Australian employer and thus did not meet cl.457.223(4)(a) of Schedule 2 to the Regulations. The Tribunal further noted that as the subclass 457 visa and associated nomination program was closed as of 18 March 2018, it appeared that the applicant could not satisfy cl.457.223(4)(a), as a new nomination made after 18 March 2018 could not satisfy that provision. The Tribunal advised that if the applicant did not meet cl.457.223(4)(a), the Tribunal would have to affirm the decision to refuse to grant the applicants subclass 457 visas.

8. The first and second applicants appeared before the Tribunal by teleconference on 19 June 2020 to give evidence and present arguments. The Tribunal is satisfied that they were given a fair opportunity to give evidence and present arguments.

9. The first named applicant (the applicant) confirmed that she had been working for her nominating employer as a Cook from 2015 to approximately December 2018.  She said that towards the end of her time there, her employer, the owner of the restaurant, had a dispute with the landlord of the premises on which the restaurant was situated. When this could not be resolved quickly, the applicant was directed by her employer to take leave, and the premises were shut. However, negotiations between the owner and the landlord were unsuccessful in resolving the situation. The applicant said that she was not told what was happening. She then received the visa refusal decision, which indicated that her employer’s nomination had not been approved. She reiterated that she was not made aware of this by her employer and did not know what had happened with the business.

10. The applicant told the Tribunal that she has been in Australia for approximately 14 years, having come as a student in 2006. She initially did a Bachelor of International Business but then completed a Certificate III and Certificate IV in Commercial Cookery. She started a Diploma in this field but then was offered the job by her nominating employer, so chose that option instead, on the understanding that the employer would support her pathway to permanent residence. The applicant said that she was granted a subclass 457 visa for 18 months initially on the basis of the nomination of her as a Cook by her employer, and the application under review by the Tribunal was the 6 month ‘extension’ (that is, second subclass 457 visa) she needed to be able to show she had worked for at least 2 years there as the holder of a subclass 457 visa, in order to qualify for permanent residence in the Employer Nomination Scheme.

11. The applicant said that since she stopped work for her nominating employer, she had not found other work as she was not sure what she was allowed to do.  The family had managed financially through her husband working in a range of different jobs, and with some financial support from her parents. The applicant noted that her son was now 9 and had spent all of his schooling in Australia, and her daughter was now 2. Both children had spent most of their lives in Australia.

12. The second named applicant (the applicant’s husband) confirmed that he had recently submitted Expressions of Interest (EoI) for subclass 189, 481 and 190 visas to the Department but was yet to hear whether he would be invited to make an application (or applications). He indicated that he had been told it might take 8 to 12 months to hear back, and that the family were not entitled to bridging visas on the basis of the EoIs, but only if he were invited to actually make a visa application in one or more of these subclasses.

13. The Tribunal discussed with the applicants the fact that there was no evidence that the applicant had an approved nomination, and therefore did not meet cl.457.223(4)(a), in relation to which there was no legal discretion to waive this requirement. The Tribunal further noted that the closure of the subclass 457 visa and associated nomination program in March 2018 meant that this could not now be rectified.  The applicants reiterated that the applicant had genuinely worked for her nominating employer and that this employment, and the second nomination of her, had failed for circumstances that were beyond her control. They also reiterated that they had been in Australia for 14 years, and their children had essentially grown up here, and their son in particular would struggle if they had to depart Australia, as he had lost his language skills in relation to their home country.

14. 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

15. 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.

16. As discussed with the applicants at the hearing, there is no evidence in the material before it that the applicant is the subject of an approved nomination by her original employer, Open Vision Pty Ltd, or any other approved standard business sponsor.

17. As discussed with the applicants 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. It further advised that 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 further 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 applicants’ circumstances, which are not of their own making, it must nevertheless make its decision on the matter under review.

21. For the above reasons, the Tribunal must find that the requirements of cl.457.223(4)(a) are not met and the applicant is not entitled to a subclass 457 visa. The Tribunal must also affirm the decision to refuse subclass 457 visas to the second, third and fourth named applicants as they do not meet the secondary visa criteria in cl.457.311 to be members of the family unit of a person who holds a subclass 457 visa, and there is no evidence to indicate that they meet the primary visa criteria in their own right.

22. 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    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.