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proficiency – minimum required score – subject of an approved nomination – nomination ceased – 457 visa program repealed – transitional arrangements – decision under review affirmed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 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.
The transitional provisions in relation to the impact of the Amending Regulations are set out in part 67 of the Amending Regulations. Relevantly, they provide
6704(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.
6704(15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day 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
As set out in the Tribunal’s s.359A letter, referred to above, and discuss during the course of the hearing, cl. 6704(15) of Schedule 13 of the Regulations does not commence until 18 March 2018 and the savings provisions in the clause are not drafted in a way as to imply it would have an effect before that date. There is nothing in the language of cl. 6704(15) or the accompanying Explanatory Statement to imply that cl. 6704(15) has a retrospective effect. Rather, the savings provisions only apply to nominations which would have ceased after 18 March 2018.
Furthermore, the operation of cl. 6704(15) of Schedule 13 of the Regulations has recently been judicially considered, by the Federal Circuit Court of Australia in Mangat v MHA [2019] FCCA 2227 (Mangat). In that case, Kendall J, found that the language and intent of cl. 6704(15) of Schedule 13 to the Regulations was 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) of the Regulations before 18 March 2018. In circumstances where a subclass 457 visa applicant’s nomination had already ceased prior to 18 March 2018, cl. 6704(15) of Schedule 13 had no relevance.
The Tribunal has also had regard to the Explanatory Statement accompanying the Amending Regulations, which 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 two exceptions
- Subclauses 6704(2) and 6704(5)….
- Subclause 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 a 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.
The Explanatory Statement does not suggest that cl.6704(15) would apply to ‘any’ nomination or one that had already ceased. It also does not suggest any retrospectivity in the application of the savings provisions.
The Tribunal acknowledges that changes to the legislation have meant at the applicant in this case can no longer obtain a Subclass 457 visa as was his intention. It appears that consideration was given by the government to the possible impacts on applicants who was still in the process of having their Subclass 457 visa applications decided, both at the primary and secondary review stage, as the terms of the Amending Regulation contain transitional and savings provisions.
Applying the decision in Mangat, the savings provision only has the effect of maintaining a nomination beyond 12 months if the nomination had not already ceased prior to the enactment of the Amending Regulations. Unfortunately, in this case the nomination had ceased on 17 March 2018, the day before the commencement date of 18 March 2018. This is still prior to the commencement date of the Amending Regulations, and the savings provisions therefore have no effect.
Therefore, the Tribunal finds that nomination by standard business sponsor in respect of the occupation of Fruit and Nut Grower in respect of the applicant ceased on 17 March 2018, and the nomination had not been revived by cl. 6704(15) of Schedule 13 of the Regulations. There is no evidence that there is any other approved or pending nomination relating to the applicant.
The Tribunal finds at the time of this decision, there is not an approved nomination of an occupation under s.140GB of the Act relating to the applicant. There is also no longer a possibility to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.
In these circumstances, the Tribunal finds the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met.
Other matters
The applicant’s visa was refused by the delegate because he was found not to have satisfied cl.457.223(4)(eb). It is noted in the delegate’s decision, a copy of which the applicant provided to the Tribunal, that the applicant is not an exempt applicant in accordance with cl. 457.223(4)(eb)(i) under the relevant Instrument (IMMI 15/028) and subclause(6) did not apply. To meet the requirements of subclass 457.223(4)(eb) the applicant was to have undertaken a language test specified by the Minister in the instrument, and achieved, within the time period specified the relevant score. The Departmental file contained an IELTS test undertaken on 25 June 2016. This report indicated that the applicant did not achieve the relevant score. With the invitation to attend the Tribunal hearing the applicant was invited to submit evidence that he had undertaken a relevant test to satisfy the requirements. The Tribunal discussed with the applicant at the hearing that no evidence in relation to this criteria had been submitted. The applicant confirmed that he did not have a relevant test to submit, and claimed told the Tribunal that he had a difficulty passing tests and this was also a problem for him in respect of the visa application.
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 Hunter
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.