Dewar (Migration) - [2019] AATA 6274

Dewar (Migration) [2019] AATA 6274 (16 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jonathan Alastair Dewar
Miss Charlotte Clare Ash
CASE NUMBER:  1715092
DIBP REFERENCE(S):  BCC2017/95813
MEMBER:Katie Malyon
DATE:16 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 16 October 2019 at 10:19 am

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 June 2017 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 9 January 2017.
At the time the visa application was lodged, Class UC contained Subclass 457. 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 of Schedule 2 to the Regulations which requires the primary visa applicant to satisfy one of the 2 alternative ‘streams’ for the visa. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship by a standard business sponsor for employment of a foreign national in a nominated occupation. The provisions of cl.457.223(4) are extracted in the Attachment to this decision. No claims have been made in respect of the alternative stream - the labour agreement stream - in cl.457.223(2) of Schedule 2 to the Regulations.
The delegate refused to grant the visas on the basis that cl.457.223(4)(da) of Schedule 2 to the Regulations was not met because the first named applicant, Mr Jonathan Alastair Dewar, did not demonstrate that he has the skills, qualifications and experience required for the nominated position of Building Associate.
Background
Mr Dewar is a citizen of the United Kingdom. He was nominated by approved standard business sponsor Eminent Waste Pty Ltd (the Company) for the position of Building Associate ANZSCO 312112. The nomination was approved by the Department on 24 February 2017. However, as noted above, the delegate was not satisfied that Mr Dewar had the necessary skills, qualifications and experience for the nominated position and so refused the applicants’ Subclass 457 visa application.
The applicants applied to the Tribunal on 13 July 2017 for review of the delegate’s decision to refuse their Subclass 457 visa application.
The Tribunal’s s.359A letter of 11 March 2019
Following constitution of the matter to the Member on 11 March 2019, the Tribunal wrote to the applicants on 14 March 2019 pursuant to s.359A of the Act.
In its letter, the Tribunal noted that one of the requirements for grant of a Subclass 457 visa is that a nomination of an occupation in relation to a visa applicant has been approved under s.140GB of the Act. The Tribunal also noted that the Migration Amendment (Temporary Skills Shortage visa and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 6274
Decision Date: 16 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr Dewar and Ms Ash against the refusal of their applications for Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work (Skilled)) visas. The primary applicant, Mr Dewar, was nominated for the position of Building Associate. The delegate initially refused the visa applications on the grounds that Mr Dewar had not demonstrated the necessary skills, qualifications, and employment experience for the nominated role. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Dewar met the visa criteria, particularly in light of legislative amendments and the validity of the company's nomination.

The central legal issue before the Tribunal was whether the company's approved nomination for Mr Dewar's position remained valid. This involved interpreting transitional provisions within the Amending Regulations, specifically clause 6704(15), which addressed the application of amendments to existing nominations. The Tribunal also considered whether the nomination had ceased in accordance with regulation 2.75(2)(b) of the Regulations, and whether the savings provisions applied retrospectively to nominations that had already ceased before the commencement of the Amending Regulations.

The Tribunal reasoned that while the initial refusal was based on Mr Dewar's lack of demonstrated skills, the passage of time and legislative changes meant the primary consideration was the validity of the nomination. The Tribunal noted that the approved nomination had ceased on 24 February 2018, prior to the commencement of the Amending Regulations. Clause 6704(15) of the Amending Regulations was intended to prevent nominations from ceasing during AAT review, but it did not apply retrospectively to nominations that had already ceased before the commencement day. As the nomination had ceased before the relevant date, and no evidence of Mr Dewar's skills was provided, the Tribunal found that Mr Dewar did not meet the requirements for the visa. Consequently, Ms Ash, as a secondary applicant, also did not meet the criteria for a member of a family unit.

The Tribunal affirmed the decision to refuse the Temporary Business Entry (Class UC) visas for both applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The delegate refused the applicants’ Subclass 457 visa on the basis that primary applicant Mr Dewar did not meet cl.457.223(4)(da) of Schedule 2 to the Regulations because he did not demonstrate that he had the skills, qualifications and employment experience necessary for the nominated position of Building Associate. No evidence of Mr Dewar’s skills, qualifications or experience in the nominated occupation was provided to the Tribunal. However, given the passage of time since the lodgement of the review application and the impact of the Amending Regulations, the issue now is whether Mr Dewar meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations. This requires a consideration of whether the Company’s approved nomination is still valid, or whether it has ceased.Requirement for an approved nomination Clause 457.223(4)(a) of Schedule 2 to the Regulations requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. As noted above, having reviewed the Department’s records, on 14 March 2019 the Tribunal wrote to the applicants pursuant to s.359A of the Act with details of information that is adverse to their application. The Tribunal outlined that the approved nomination made by the Company ceased on 24 February 2018 consistent with r.2.75(2)(b) of the Regulations. It also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. In her response to the Tribunal’s first s.359A letter, the applicants’ representative submitted that the Company’s approved nomination is still valid having regard to cl.6704(15) of the Amending Regulations. Transitional provisions in relation to the impact of the Amending Regulations on the Regulations are set out in Part 67 of the Amending Regulations. Relevantly, they provide:6704 - Application and transitional provisions in relation to amendments of Part 2A…(14) Despite the amendments of regulation 2.75 made by the amending regulations, that regulation, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day.(15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day [18 March 2018] if:(a) before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and(b) within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa. The Explanatory Statement accompanying the Amending Regulations relevantly states that:Clause 6704, entitled Application and transitional provisions in relation to amendments of Part 2A, has the effect that changes to regulations relating to sponsorship and nomination under Part 2A of the Migration Regulations do not affect applications and nominations made before 18 March 2018. There are 2 exceptions:- ..- Subclass 6704(15) ensures that a nomination linked to a Subclass 457 visa application will not cease during AAT review of a decision to refuse the visa. This is a beneficial change to extend the validity of the nomination, which would otherwise cease 12 months after approval (paragraph 2.75(2)(b) of the Regulations) to avoid situations where the applicant is successful at the AAT but the related nomination has ceased to be in effect noting that it is not possible to mkae (sic) another Subclass 457 nomination as of 18 March 2018.

Decision

Reasons for decision

As Mr Dewar does not meet criteria for grant of a Subclass 457 visa, the second named applicant - his partner Miss Charlotte Clare Ash - is not a member of the family unit of a person who meets the primary criteria for grant of a Subclass 457 visa. In addition, there is no evidence before the Tribunal that Miss Ash is the subject of an approved, or pending, nomination by an approved standard business sponsor. Accordingly, the Tribunal finds that the decision to refuse Miss Ash’s Subclass 457 visa application must also be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.Katie MalyonMemberATTACHMENT - 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. oOOo

Ratio Decidendi

Legal Principle Established

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