Dhaliwal (Migration)

[2021] AATA 2609

Dhaliwal (Migration) [2021] AATA 2609 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lalwinder Singh Dhaliwal
Mrs Ranjit Kaur Dhaliwal

CASE NUMBER:  1815770

HOME AFFAIRS REFERENCE(S):          BCC2018/991621

MEMBER:Alison Mercer

DATE:22 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 July 2021 at 3:07pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A

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

CASES

Chen v MIPB [2016] FCCA 2351

Hasran v MIAC (2010) 183 FCR 413

Huo v MIMA [2002] FCA 617

Manna v MIAC [2012] FMCA 28

MIAC 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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 1 March 2018.

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 (Cth) (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 16 May 2018 on the basis that cl 457.223(4)(a) was not met. This subparagraph requires that the first named applicant (the applicant) was the subject of an approved nomination by an approved standard business sponsor (SBS). The delegate found that this subparagraph was not met because the Department had refused to approve the nomination of him by his employer, Pricemen Investments Pty Ltd, on 16 April 2018. The delegate therefore found that the applicant was not entitled to a subclass 457 visa. The delegate also refused to grant the second named applicant (the applicant’s spouse) a subclass 457 visa, on the basis that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 457 visa, and there was no evidence that she met the primary visa criteria in her own right.

5. The Tribunal received a review application from the applicants on 30 May 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Prabhjit Kaur, as their representative and authorised recipient for correspondence.

6. On 22 June 2021, the Tribunal wrote to the applicants via their agent to invite them to attend a telephone hearing on 20 July 2021 to give evidence in support of their application.

7. On 25 June 2021, the Tribunal wrote again to the applicants via their agent to invite them, pursuant to s.359A of the Act, to comment on or respond to potentially adverse information affecting their case. The Tribunal summarised the delegate’s reasons for refusing their applications, and noted that the Tribunal’s records indicated that the applicant’s employer, Pricemen Investments Pty Ltd, had sought review with the Tribunal of the Department’s decision to refuse its nomination application on 4 May 2018, but that on 28 April 2021, the Tribunal (differently constituted) had affirmed that refusal decision.

8. The Tribunal explained that this indicated that there was no approved nomination of the applicant by an approved SBS and it therefore appeared that he could not meet cl.457.223(4)(a) and that this would be a reason (or part of the reason) to affirm the decision under review in relation to him. It further advised that if it found this, it would also be a reason (or part of the reason) to affirm the decision to refuse the second named applicant a subclass 457 visa as well, as it indicated that she did not satisfy the secondary visa criteria to be a member of the family unit of a subclass 457 visa holder, and there was no evidence that she met the primary visa criteria in her own right. The Tribunal further noted that the subclass 457 visa program and its associated nomination program had been closed on 18 March 2018, meaning that a new nomination now could not satisfy cl.457.223(4)(a).

9. The Tribunal requested that the applicant provide their comments or response by 12 July 2021 and advised that if they did not provide their comments or response, or ask for an extension of time to do so, by the due date, then they would lose their right to a hearing, the hearing scheduled for 20 July 2021 would be cancelled, and the Tribunal might proceed to make its decision on the available evidence without taking any further action to obtain their views about the adverse information.

10. The Tribunal did not receive comments or a response from the applicants by 12 July 2021. Nor did it receive a request for an extension of time to do so.

11. On 13 July 2021, the Tribunal wrote again to the applicants to advise them that as the Tribunal did not receive a response or a request for an extension of time by the due date, the Presiding Member had determined that they had lost their right to appear before the Tribunal to give evidence and present arguments, and that, therefore, the hearing scheduled for 20 July 2021 had been cancelled. The Tribunal advised that the the Presiding Member agreed to defer making a decision in this matter until 20 July 2021 to enable them to provide additional material they wished to provide to support the case.

12. The applicants did not provide any further submissions or material by 20 July 2021, and the Tribunal has received no further communications from them to date.

13. If a person is given a formal invitation to provide comments or a response to information put to him or her under s.359A and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the response or comments.[1] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[2] In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so.[3] Therefore, once the applicant has lost their entitlement to a hearing, the effect of ss.359C(2), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing.

    [1] ss 359C(2), 424C(2). 

    [2] ss 360(3), 425(3).

    [3] Hasran v MIAC (2010) 183 FCR 413 at [26]. This confirms the views expressed in M v MIMA (2006) 155 FCR 333 at [46], and MIMA v Sun (2005) 146 FCR 498, for example.

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. As set out in the Tribunal’s s.359A letter of 25 June 2021, the Department and Tribunal’s records indicate that the applicant’s employer, Pricemen Investments Pty Ltd, made a nomination of the applicant which was refused by the Department.  Although the applicant’s employer sought review of that refusal decision with the Tribunal, the employer’s review application for the refusal decision was affirmed by the Tribunal (differently constituted) on 28 April 2021.

16. The Tribunal notes that it provided additional time to the applicants to provide information, even though they failed to respond to the Tribunal’s s.359A letter, but they elected not to do so. Significantly, the Tribunal is of the view that even if the applicant were able to secure a new nomination, this would not satisfy cl.457.223(4)(a).

17. This is because of legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. 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. 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. In the circumstances, it would be futile for the Tribunal to further delay the making of the decision on this application for review.

18. 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.

19. The Tribunal finds that the requirements of cl.457.223(4)(a) are not met by the applicant and it must affirm the decision not to grant him a subclass 457 visa.

20. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 457 visa as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 457 visa, and there is no evidence to indicate that she meets the primary visa criteria in her own right.

21. 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

22. 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.