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

CATCHWORDS

MIGRATION –Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsorship stream – skills, qualifications and experience for nominated position – no evidence provided to tribunal – approved nomination of occupation ceased – legislative amendments to visa class – savings provisions do not apply retrospectively to nominations that have already ceased – no response to tribunal’s s 359A letter – member of a family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 353, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 2.75(2)(b), Schedule 2, cl 457.223(4)(a), (da)
Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018, cl 6704(15)
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASES
Hasran v MIAC [2010] FCAFC 40
Mangat v MHA [2019] FCCA 2227

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicants applied for the visas on 9 January 2017.

3. 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.

4. 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

5. 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.

6. 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

7. 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.

8. 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 Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations).  The Amending Regulations provide that a nomination lodged from 18 March 2018 must be for a Subclass 482 visa or made in respect of an existing Subclass 457 visa holder and, further, that a new application for approval of a nomination in support of grant of a Subclass 457 visa can no longer be made. 

9. The Tribunal also observed that it is a requirement for grant of a Subclass 457 visa that, among other things, the applicants are the subject of an approved nomination by a standard business sponsor which has not ceased: cl.457.223(4)(a) of Schedule 2 to the Regulations. Further, the Tribunal noted that its review of Departmental records indicates that the applicants are not the subject of an approved nomination as the nomination made by the Company ceased on 24 February 2018 (that is, 12 months after it was approved consistent with the provisions of r.2.75(2)(b) of the Act) and, following the changes introduced by the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made from 18 March 2018.

10. The Tribunal observed that, if it relies on this information, it may find that the applicants are not the subject of an approved nomination and, therefore, they cannot satisfy the requirements in cl.457.223(4)(a) of Schedule 2 to the Regulations for grant of the visa.

11. The applicants were requested to provide the Tribunal with comments or a response to this information by 28 March 2019. In its letter, the Tribunal advised that, if the applicants’ comments or response was not provided in writing by 28 March 2019 or, if a request was not been made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

    Response to the Tribunal’s s.359A letter

12. On 28 March 2019, the applicants’ representative wrote to the Tribunal in response to its s.359A letter. The representative submits that, as a result of the saving provisions set out in cl.6704(15) of the Amending Regulations, the Company’s nomination which was approved on 24 February 2017 remains in force. The provisions of cl.6704(15) of the Amending Regulations and the impact of these provisions as set out in the Explanatory Statement accompanying the Amending Regulations are set out below at paras [30] and [31] below.

13. The representative acknowledges that, ordinarily, the nomination would have expired 12 months after it has been approved in accordance with r.2.75(2)(b) of the Regulations. However, she submits that cl.6704(15) of the Amending Regulations operates to beneficially preserve the Company’s nomination as, before the commencement day of the Amending Regulations, the applicants applied for a Subclass 457 visa on 9 January 2017 on the basis of the Company’s nomination and, within 12 months after the day on which that nomination was approved (on 24 February 2017, they applied to the Tribunal (on 13 July 2017) for review of the decision to refuse them the visa: that is, they applied to the Tribunal within the 12 months of approval of the nomination. As such, the representative submits that Mr Dewar, as the primary applicant, meets the requirements of cl.6704(15) of the Amending Regulations with the result that the Company’s nomination has not ceased.

    Hearing scheduled

14. Following receipt of the response from the applicants’ representative to the Tribunal’s s.359A letter within the permitted timeframe, the matter was set down for hearing on 2 July 2019. The applicants’ matter was listed as one of 6 cases for hearing in a Multiple Application Hearing List (MAHL).

    Request for postponement

15. The day before the scheduled hearing, the representative wrote to the Tribunal and requested an adjournment.  The representative noted she would be attending the hearing to assist 2 other clients in separate hearings at the MAHL.  However, she notes that as both of the applicants are currently offshore and are not in a position to return to Australia at this time, the outcome of the 2 other applications for review will assist resolve the issues of law arising from introduction of the Amending Regulations and their impact on the currency of the Company’s nomination. 

16. The Tribunal acknowledged the representative’s request for a postponement for the reason given and agreed to the request.

    The Tribunal’s s.359A letter of 27 September 2019

17. On 27 September 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act.

18. In its letter, the Tribunal reiterated comments referred to above at paras [8] - [10].  It also noted that:

    ·cl.6704(15) of the Regulations was introduced by the Amending Regulations and preserves the validity of nomination applications which would expire on or after 18 March 2018 - as indicated in the Explanatory Statement accompanying the Amending Regulations, this is a ‘beneficial change’ to extend the validity of a nomination which would otherwise cease 12 months after approval (consistent with r.2.75(2)(b) of the Regulations) to avoid situations where a visa applicant is successful at the Tribunal but the related nomination has ceased since it is not possible to make another Subclass 457 nomination as of 18 March 2018; and,

    ·the Federal Circuit Court of Australia (FCCA) in its decision in Mangat v MHA [2019] FCCA 2227 of 19 August 2019 confirmed that cl.6704(15) of the Amending Regulations does not operate retrospectively to resurrect nominations that have already ceased before 18 March 2018, such as the Company’s nomination in respect of you (emphasis added).

19. The Tribunal observed that, if it relies on this information, it may find that the applicants are not the subject of an approved nomination and, effective 18 March 2018, a new nomination application in respect of a Subclass 457 visa applicant cannot be made. This would be the reason, or a part of the reason, for affirming the decision under review as it is a requirement that the primary applicant satisfies the requirements in cl.457.223(4)(a) of Schedule 2 to the Regulations for grant of the visa.

20. The applicants were requested to provide the Tribunal with comments or a response to this information by 11 October 2019. In its letter, the Tribunal advised that, if the applicants’ comments or response was not provided in writing by 11 October 2019 or, if a request was not been made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

21. No comments or response has been provided by the applicants within the prescribed period, and no extension of time had been requested. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

22. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support their review application. In this regard, the Tribunal has considered whether, in the circumstances of this case, evidence that Mr Dewar meets the relevant requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations is likely to be forthcoming, whether the applicants have already had a fair opportunity to provide the relevant information or documentation or request an extension of time in which to do so, and the significance of the information or documents to the applicants.

23. In the circumstances of this case, the Tribunal considers the applicants have had sufficient time in which to address the issue arising on review, that is, whether Mr Dewar is the subject of an approved nomination that has not ceased or, in the alternative, seek an extension of time in which to provide some evidence in support of such a claim. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act.

24. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

26. 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

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. The operation of cl.6704(15) of Schedule 13 of the Regulations has been judicially considered. On 16 August 2019, the FCCA handed down its decision in Mangat v MHA [2019] FCCA 2227 (Mangat’s case). In that case, Kendall J found that the language and intent of cl.6704(15) of Schedule 13 to the Regulations is plain. His Honour also found the clause does not operate retrospectively to resurrect nominations that had already ceased in accordance with r.2.75(2)(b) before 18 March 2018.[1] In circumstances where a Subclass 457 visa applicant’s nomination has already ceased prior to 18 March 2018, cl.6704(15) has no relevance.[2] The Court found that cl.6704(15) is directed to benefit applicants before the Tribunal whose nomination would have ceased after 18 March 2018. Kendall J observes “(T)his is in line with the Explanatory Statement and the purpose of cl.6704(15) as a beneficial change to ‘extend the validity of a nomination’ to avoid situations where an applicant is successful at the Tribunal but that the related nomination has ceased to be in effect and the applicant cannot obtain a new nomination”.[3] 

    [1] Mangat v MHA [2019] FCCA 2227, Kendall J at [95]

    [2] Ibid at [99]

    [3] Ibid at [100]

33. In light of the decision Mangat’s case, the Tribunal does not accept any of the representative’s submissions in her letter of 28 March 2019 referred to above at paras [12] and [13].

34. In passing, the Tribunal notes that in Mangat’s case, Kendall J observed the applicant in that case could have obtained a new nomination in the 11 months between when his employer’s nomination ceased on 5 April 2017 and when the Amending Regulations commenced on 18 March 2018, but he did not do so.  By analogy, the Company could have lodged a new fully-documented decision-ready nomination in respect of Mr Dewar for the position of Building Associate in the 3weeks between the time its nomination ceased on 24 February 2018 and 18 March 2018. 

35. Having regard to the decision in Mangat’s case, the Tribunal finds that the Company’s nomination of the occupation of Building Associate in relation to Mr Dewar ceased on 24 February 2018 and that nomination has not been revived by cl.6704(15) of Schedule 13 to the Regulations. 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. There is no evidence before the Tribunal that there is any approved or pending nomination relating to Mr Dewar.

36. For these reasons, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met. Accordingly, 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 stream in cl.457.223 of Schedule 2 to the Regulations - the labour agreement stream - and there is no evidence that Mr Dewar would be able to satisfy the specific criteria for that stream. Having regard to available evidence, the Tribunal finds that the decision to refuse Mr Dewar’s Subclass 457 visa application must be affirmed.

1. 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

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

   Katie Malyon

   
   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. 

   oOOo