Conway (Migration)

[2018] AATA 5466

Conway (Migration) [2018] AATA 5466 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ann Marie Conway

CASE NUMBER:  1605517

DIBP REFERENCE(S):  BCC2016/278276

MEMBER:R. Skaros

DATE:29 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 October 2018 at 2:09pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Training and Development Professional – nominated occupation removed from the eligible list of occupations – second nomination refused by the department – no approved nomination – request to delay making decision on the review – standard business sponsor stream – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, r 2.75, Schedule 2, cl 457.223
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 January 2016.

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 visa on 5 April 2016 on the basis that cl.457.223(4)(a) was not met because the nomination in relation to the applicant was not approved. A copy of the delegate’s decision record was provided to the Tribunal.

5. The applicant appeared before the Tribunal (differently constituted) on 13 December 2017 to give evidence and present arguments. Oral evidence was also received from Mr Andres Glaesel, on behalf of the nominating employer. 

6. The applicant was represented in relation to the review by her registered migration agents.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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.

10. The applicant applied for the visa on 19 January 2016 on the basis of a nomination by Nordic Jewellery Pty Ltd in the occupation of Training and Development Professional.  That nomination was refused by the Department on 3 March 2016. According to the decision record, on 4 March 2016, the applicant was invited to comment on her intentions regarding the visa, withdraw her application for the visa or provide other information that may be relevant. The decision record indicates that the applicant did not respond. Consequently, the Department refused the application.

11. 30 May 2016, the applicant’s former representative provided submissions to the Tribunal advising that Nordic Jewellery Pty Ltd had applied for review of the decision not to approve the nomination for the position of Training and Development Professional in respect of the applicant. The representative provided detailed submissions and supporting documents in respect of the applicant’s experience and suitability for the nominated position of Training and Development Professional.

12. On 18 April 2017, significant changes to the temporary work (subclass 457) visa program were announced. On 6 September 2017, the Tribunal wrote to the applicant advising that due to changes in the relevant instrument specifying the occupations for the purposes of paragraph 2.72(10)(a) and 457 visas, she may not be able to meet the requirements in cl.457.223(4)(aa) as her nominated occupation of Training and Development Professional 223311 has been removed from the eligible list of occupations. The applicant was invited to provide submissions or withdraw the application for review however no response was received.

13. On 19 October 2017 the Tribunal wrote to the applicant and invited her to a hearing to give evidence and present arguments on 13 December 2017.

14. The applicant appeared before the Tribunal, differently constituted, on 13 December 2017. At the hearing, the applicant provided to the Tribunal an acknowledgement letter for a second nomination lodged in relation to her by Nordic Jewellery Pty Ltd in a different occupation, namely, Sales and Marketing Manager. At the hearing, the Tribunal agreed to delay making its decision on the review and the applicant was given until 6 February 2018 to provide information regarding the second nomination. No communication appears to have been received from the applicant by 6 February 2018.

15. The matter was reconstituted to the present Tribunal. On 3 September 2018, the applicant’s former representative wrote to the Tribunal requesting advice on the status of the review. On 4 September 2018, on instruction from the member, an officer of the Tribunal contacted the former representative advising that the Tribunal has been awaiting their advice regarding the status of the second nomination. When asked about the progress of that nomination, the representative informed the Tribunal officer that he had not been contacted by the Department about that nomination.

16. The Tribunal requested the officer to check the status of the nomination on the Department’s electronic records. The electronic records indicated that the second nomination in relation to the applicant made by Nordic Jewellery Pty Ltd was refused by the Department on 9 October 2018.

17. On 10 October 2018, the Tribunal wrote to the applicant in accordance with s.359A of the Act. The applicant was invited to comment on or respond to the information obtained from the Department’s records indicating that the nomination in relation to her by Nordic Jewellery Pty Ltd has been refused. The Tribunal explained that the information is relevant to the requirement in cl.457.223(4)(a) and noted that if it relied on the information the decision under review may be affirmed.

18. On 22 October 2018, the Tribunal received advice that the applicant has appointed a new representative in relation to the review. The newly appointed representative advised that an application for review of the Department’s decision to refuse the nomination has been lodged with the Tribunal. The representative requested the cases be linked so that the applicant’s application for review is not decided before the appeal of the nomination is heard. On 24 October 2018, an officer of the Tribunal wrote to the representative advising that the cases have been linked on the Tribunal’s case management system and if there is any development regarding the nomination with respect to the applicant’s review they would be duly notified.

19. On 25 October 2018, the Tribunal wrote to the applicant informing her that it had considered the representative’s submissions but has decided, for reasons that will be explained in the decision record, not to delay making a decision on the application for review. On the same day, the Tribunal received an email from the representative requesting the Tribunal either hasten the review of the 457 nomination or delay making its decision until review of the nomination has been finalised. It was submitted that if a decision is made on the review it will significantly impact the applicant, as she will not be able to apply for another Subclass 457 visa, and the nominator who will have wasted $1764 (the review application fee), as no new visa application can be linked to a Subclass 457 nomination, in the event the review is successful. The Tribunal has addressed these concerns further below.

20. The Tribunal has carefully considered the applicant’s request to further delay making its decision on the review but for the reasons that follow has decided not to do so.

21. The Tribunal is required to conduct reviews in a fair and efficient manner. The applicant in this case has been on notice since 3 March 2016, when the Department first notified her that the first nomination by Nordic Jewellery Pty Ltd had been refused, that she is required to be the subject of an approved nomination. A period of over two years and nine months has passed since that date and the applicant is still not the subject of a current approved nomination. The Tribunal provided the applicant with a further opportunity to secure an approved nomination in a different occupation (Sales and Marketing Manager) as changes to the 457 occupations list meant that the applicant could not be granted a visa in her initial occupation of Training and Development Professional.

22. At the hearing, which was conducted over ten months ago, the Tribunal (differently constituted) agreed to delay making its decision on the review until 6 February 2018, however, the second nomination had not been decided by that time. The matter was subsequently reconstituted to the present Tribunal who decided, appropriately, not to proceed to a decision until the Department had made a decision on the nomination. As indicated above, the second nomination was also refused. The applicant is now asking the Tribunal to defer making its decision again until a review of the second nomination refusal is determined. The Tribunal notes that the period of time by which review of that nomination will occur is indeterminate. There is no specified period of time by which a review of a nomination has to be finalised, and given the nomination was lodged less than one week ago, it is likely to take a long time to process. The Tribunal has had regard to the representative’s request for the member to fast-track the review of the 457 nomination, however, the allocation of cases is governed by a registry process over which the Tribunal has no control.

23. This application for review was lodged with the Tribunal over two and a half years ago. The applicant was granted a further opportunity to obtain a nomination in a different occupation but has been unable to do so. The Tribunal is satisfied that the applicant has been afforded sufficient opportunity to secure an approved nomination and does not consider it appropriate in all the circumstances of this case to further delay making its decision on the review.

24. The Tribunal has also considered the submissions that if the Tribunal proceeds with a decision the applicant cannot lodge another 457 visa application, in the event the review of the nomination is successful, and that the sponsor will have wasted $1764. Firstly, the Tribunal notes that it was the employer’s choice to apply for review of the decision to refuse the nomination and pay the filing fees.  If the review is ultimately successful, the employer will be entitled to a refund of half the fees. Secondly, the Tribunal accepts that the applicant will not be able to apply for another 457 visa even if review of the nomination is successful.  This is because the 457 visa subclass was repealed on 18 March 2018 by the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018, and replaced with a new subclass, subclass 482 (Temporary Skills Shortage) visa.

25. Like the Subclass 457 visa, the new Subclass 482 visa, is also temporary work visa that will permit the applicant to live and work in Australia if she is successfully nominated and is able to meet the requirements for the grant of the visa. It is therefore open for the employer to lodge a new nomination under the Temporary Skills Shortage (Subclass 482) visa program, which if successful, will support an application for a Subclass 482 visa which can be made by the applicant from outside Australia.

26. 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 recent 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.

27. The Tribunal considers that the applicant in this case has had a fair and reasonable opportunity to secure an approved nomination to meet the requirements in cl.457.223(4)(a). In the circumstances of this case, the Tribunal does not consider it unreasonable to proceed to a decision on the information before it.

28. The Tribunal finds that there is no approved nomination of an occupation in respect of the applicant. It follows, that the applicant does not meet the requirements cl.457.223(4)(a). The decision under review must therefore be affirmed.

29. 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

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

    R. Skaros
    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.