Dulman (Migration) - [2019] AATA 4571

Dulman (Migration) [2019] AATA 4571 (23 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Joel Jr Italia Dulman
CASE NUMBER:  1707373
DIBP REFERENCE(S):  BCC2016/2960758
MEMBER:Penelope Hunter
DATE:23 October 2019
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 23 October 2019 at 9:03am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – English language proficiency – minimum required score – subject of an approved nomination – nomination ceased – 457 visa program repealed – transitional arrangements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 (Cth), Schedule 13, cl 6704
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cl 457.223
CASES
Mangat v MHA [2019] FCCA 2227

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicant applied for the visa on 6 September 2016. 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.
The delegate refused to grant the visa on 17 March 2017 on the basis that cl.457.223(4)(eb) was not met because the applicant had not achieved a requisite score in an English language test specified by the Minister.
The applicant appeared before the Tribunal on 10 October 2019, to give evidence and present arguments by telephone. The applicant was represented in relation to the review by his registered migration agent, although his agent did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Although the delegate refused the visa on the basis that the applicant had not demonstrated that he met the English language requirements, the issue that has arisen on review by the Tribunal is whether the applicant meets the requirements of cl.457.233(4)(a) as set out in the attachment to this decision. This is the requirement that a nomination of an occupation in relation to a visa applicant be approved…

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 4571
Decision Date: 23 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a case involving an applicant for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The primary dispute revolved around whether the applicant met the requirements of clause 457.233(4)(a) of the Migration Regulations 1994, specifically concerning the approval and currency of a nomination for an occupation. This issue arose on review by the Tribunal, despite the initial refusal by the delegate being based on English language proficiency.

The Tribunal was required to determine whether the applicant was the subject of an approved nomination that had not ceased, given that the nomination previously approved in relation to the applicant had expired. The Tribunal also had to consider the impact of the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018, which repealed and replaced the Subclass 457 visa scheme and its nomination criteria. The applicant’s representative argued that transitional arrangements preserved the validity of the nomination for the purpose of the review.

The Tribunal reasoned that the nomination, approved on 17 March 2017 for the occupation of Fruit or Nut Grower, ceased by operation of regulation 2.75(2) of the Regulations on 17 March 2018, which was 12 months after its approval. The Amending Regulations commenced on 18 March 2018, after the nomination had ceased. The Tribunal found that the applicant’s arguments regarding transitional arrangements and the timing of the visa application and review application did not overcome the fact that the nomination had ceased prior to the commencement of the new regulations and before the Tribunal could make a decision. Consequently, the Tribunal concluded that the requirements for the standard business sponsorship stream had not been met.

The Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa, finding that the applicant had not met the requirements of clause 457.233(4)(a). No claims were made, nor was there evidence presented, to suggest the applicant could satisfy the criteria for other streams within clause 457.223.

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 should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Although the delegate refused the visa on the basis that the applicant had not demonstrated that he met the English language requirements, the issue that has arisen on review by the Tribunal is whether the applicant meets the requirements of cl.457.233(4)(a) as set out in the attachment to this decision. This is the requirement that a nomination of an occupation in relation to a visa applicant be approved under s. 140GB of the Act. This issue was identified to the applicant by way of a letter pursuant to s.359A of the Act prior to the hearing. The applicant was put on notice that information in Departmental records indicated that the applicant was not the subject of an approved nomination by a standard business sponsor, because the nomination previously approved in respect of the applicant had ceased. The letter further stated that on 18 March 2018, the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 (the Amending Regulations) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa scheme was also repealed and closed to new applications. The applicant was further informed that if the Tribunal relied upon the information it would form a reason or part of a reason for affirming the decision under review as the Tribunal may find that the applicant was not the subject of an approved nomination and that a new nomination could not be obtained. At the beginning of the hearing, it was also explained to the applicant that the Tribunal would be considering the issue of whether he was the subject of a nomination that was approved and had not ceased. On the information before the Tribunal an approval for the occupation of a Fruit or Nut Grower, in relation to the applicant, was sought by C. CAMUGLIA CENTENARYNO 2 PTY LTD ATF THE CHARLIE CAMUGLIA FAMILY TRUST (the nominator). This was approved on 17 March 2017. By operation of r.2.75(2) of the Regulations the nomination ceased 12 months after the day on which the nomination was approved, that is 17 March 2018. Then, on 18 March 2018, the Amending Regulations commenced. As stated the Amending Regulations repealed and replaced the Subclass 457 visa scheme. Prior to the hearing, in response to the Tribunal’s correspondence, submissions were received from the representative of the applicant. It was claimed that the operation of r.2.75(2)(b) of the Regulations, did not apply to a nomination made or 18 March 2018 if the person identified in the nomination applied for 457 visa before 18 March 2018, and they applied to the Tribunal for a review of the decision to refuse the grant about visa within 12 months after the date on which the nomination was approved. It was claimed that as the application for review was made within the relevant 12 month period the nomination had not ceased. The representative for the applicant submitted that the applicant had applied for the visa on 6 September 2016, which was within 12 months of the approval of the nomination on 17 March 2017, he then applied to the Tribunal on 7 April 2017, also within the 12 months of approval of the nomination. In addition, it was claimed that the transitional arrangements in the Amending Regulations state that the purpose of subclause 6704(15) is to ensure that a nomination linked to a subclass 457 visa application will not ceased while the Tribunal carries out the review of the decision to refuse the visa.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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