Fatima (Migration)

[2020] AATA 2599

Fatima (Migration) [2020] AATA 2599 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kaneez Fatima
Mr Mohiuddin Mohammed
Miss Deena Ummulkhair

CASE NUMBER:  1819923

DIBP REFERENCE(S):  BCC2017/1786485

MEMBER:Wan Shum

DATE:24 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 June 2020 at 10:57am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – related position nomination application refused and refusal affirmed on review – nominator’s application to Federal Circuit Court – request for postponement not granted – decision under review affirmed

LEGISLATION   
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.72, Schedule 2, cl 457.223

CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Minister for Immigration and Citizenship 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 Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) Subclass 457 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 457 visas on 19 May 2017. A separate application for a Subclass 457 visa was made by the applicant’s son.

3. 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.

4. A nomination of the occupation of Developer Programmer was made by Barakah Housing Pty Ltd in relation to the first named applicant (the applicant) on 17 January 2017. The application was not approved.

5. As a consequence, the delegate refused to grant the visas on 19 June 2018 on the basis that cl.457.223(4)(a) was not met. 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. A decision was also made to refuse to grant the applicant’s son a Subclass 457 visa.

6. Both the applicants and Barakah Housing Pty Ltd applied for review of the related decisions and were represented in relation to the reviews by the same registered migration agent. The Tribunal also has before it an application for review made by the applicant’s son. A separate decision has been made in relation to that matter.

7. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a).

8. The applicant appeared before the Tribunal on 11 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bhuiyan on behalf of Barakah Housing Pty Ltd in respect of the related nomination and other nominations that had also been refused by the Department but for different occupations.

9. On 28 May 2020, the Tribunal affirmed the decision not to approve the nomination made by Barakah Housing Pty Ltd (the nominator) for a Developer Programmer.

10. The Tribunal wrote to the applicants on 2 June 2020 regarding this information and invited them to comment on or respond to the information by 16 June 2020. On that day, the Tribunal received an unsigned letter from the applicant:

    Thank you for affording an opportunity to comment and respond to the information conveyed to me via your letter dated 2nd June 2020.

    With due respect, I would like to take this opportunity to inform the Tribunal about the nominator’s decision to file an appeal in the Federal Circuit Court.

    The nominator has already submitted the required documentation to the Federal Circuit Court and the “Notice of Filing” from Federal Circuit Court will be forwarded to the Tribunal as soon as it becomes available.

    Hence, I would humbly like to request the Member to please place my application for review on hold until an outcome is received from Federal Circuit Court.

11. The Tribunal received this letter with the same content from another applicant whose related nomination by the same nominator had also been affirmed by the Tribunal. The Tribunal has since received confirmation that the application was filed with the Court on 16 June 2020.

12. The Tribunal has considered the request to put the application for review on hold until the outcome of the judicial review application of the nominator and whether it is reasonable to defer its decision to await the outcome. 

13. In doing so, the Tribunal has had regard to the judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of a request for an adjournment. The Tribunal has also had regard to the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, where 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 made to the Department was known.

14. Having had regard to these cases, and noting that the applicant has been identified in a number of nominations for the occupation of Developer Programmer made by other standard business sponsors since this application for review was lodged all of which have been unsuccessful, the Tribunal does not consider it reasonable to defer making its decision for an unknown period. In doing so it has taken into account that the only way in which the applicant could meet cl.457.223(4)(a) is if the upcoming judicial review application of the nominator is successful, and the decision to affirm the refusal of its nomination of the occupation of a Developer Programmer is remitted back to the Tribunal for reconsideration. Then the outcome of any such reconsideration would need to be that the Tribunal sets aside the Department’s decision to refuse to approve the nomination and substitutes a decision to approve the nomination. Therefore, not only is it not known how long it may take for an outcome from the Court or the likelihood that it would be successful, but the Tribunal will need to await a fresh assessment of all the relevant criteria in r.2.72 (as it was at the time the nomination application was made). The time taken, and potential outcome, of a fresh review by a differently constituted Tribunal is also unknown. 

15. Given the uncertainty attending the issue of when, or even if, the applicant will be the subject of an approved nomination by the nominator, the Tribunal has decided to proceed to a decision on this matter and the applicants were informed that it would be doing so.

16. There is no evidence before the Tribunal of an approved nomination of an occupation relating to the applicant.

17. For these reasons the requirements of cl.457.223(4)(a) are not met and 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 applicant would be able to satisfy the specific criteria for those streams. There is no evidence before the Tribunal that the other applicants are members of the family unit of a person who is the holder of a subclass 457 visa.

18. Given this, the Tribunal must affirm the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    DECISION

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

    Wan Shum
    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.

    …