Gawi (Migration)

Gawi (Migration) [2020] AATA 4503 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Thomas Gawi
Ms Keeslena Marcella Wanma Gawi
Master Moses Joseph Wanma Gawi
Master Yohannes Orim Steve Wanma Gawi
CASE NUMBER:  1815391
DIBP REFERENCE(S):  BCC2018/1285304
MEMBER:Karen Synon
DATE:27 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 27 October 2020 at 2:44pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – sponsor’s position nomination refused and refusal affirmed – no response to invitation to comment – change of representative advised but not officially notified – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)
CASE
Hasran v MIAC [2010] FCAFC 40

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 17 March 2018.
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 visas on 15 May 2018 on the basis that the primary review applicant (the applicant) did not satisfy cl.457.223(4)(a) because he was not the subject of an approved nomination.
The applicants applied for review of the primary decision on 26 May 2018 and provided a copy of the Department’s decision.
The applicants were represented in relation to the review by their registered migration agent until 26 October 2020 when this representation was cancelled by the applicant.
On 5 October 2020 the applicants were invited to a hearing on 19 November 2020.
On 6 October 2020 it received the following communication from the applicants’ representative:
In relation to the abovenamed applicant for review, please refer to your email of 5 February, 2020, entitled “1812794 - Currawah Aboriginal Education Centre Aboriginal Corporation - VIC - Your reference: EMIC_TKH/TG-181017” and attaching a decision record concerning the abovenamed Education Centre, Mr Gawi’s employer. That record, at paragraph 5, contains the following observation:
The Tribunal received a response on 12 November 2019 from the applicant’s migration agent and authorised recipient indicating that they no longer act for the applicant and that they were under the impression that the college had ceased to operate” (my emphasis).[1]
Since, as recorded by the Tribunal, I no longer act for the applicant, I have forwarded your correspondence (below) to the address I have for him on record but would ask that you no longer contact me regarding this case.
[1] The Tribunal notes this appears to refer to the related nomination review.
On the same day, 6 October 2020 the Tribunal wrote to the applicants’ representative relevantly advising:
On 6 October 2020 you advised us that you no longer represent [the applicants]. However, as their authorised recipient, by law we are required to continue to send you correspondence in connection with the review unless and until the applicants advise otherwise.
Please find enclosed a letter requesting the applicants to confirm your advice that you are no longer to receive correspondence in connection with the review.
The attached letter relevantly advised the applicants:
You nominated Dr Timothy Haines as your authorised recipient to receive correspondence in connection with this review.
On 6 October 2020 we were told by Dr Timothy Haines that they no longer represent you in this review and should no longer receive correspondence on your behalf.
It is important that you now complete and return one of the following forms to us as soon as possible. We will continue to send correspondence to Dr Timothy Haines if you do not return either of the forms mentioned below.
No advice of a change of authorised recipient and/or representative was received before the Tribunal sent its s.359A invitation on 9 October 2020.
On 9 October 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments or respond, in writing, to information it considered would be the reason or part of the reason for affirming the decision under review. The Tribunal raised the following particulars:
·The information is contained on Tribunal file number 1812794. That Tribunal file was created because Currawah Aboriginal Education Centre Aboriginal Corporation applied to the Tribunal for review of a Department decision not to approve a nomination, in respect of Thomas Gawi, for the occupation of ‘Residential Care Officer’. On 3 February 2020 the Tribunal affirmed the decision of the department to refuse the nomination made by Currawah Aboriginal Education Centre Aboriginal Corporation in respect of Thomas Gawi. This means the nominator’s application for the nominated position has not been approved.
·Departmental records indicate that Thomas Gawi is not presently the subject of an approved nomination by a standard business sponsor.
The applicants were advised that this information is relevant to the review because cl.457.223(4)(a) requires that, at the time of decision, the applicant must be the subject of an approved nomination by a standard business sponsor.
The applicants were also relevantly advised:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. This hearing right will be lost regardless of whether you have already been invited to a hearing.[2]
[2]Tribunal’s emphasis.
Comments or a response in writing were invited by 26 October 2020.
The s.359A invitation was sent to the applicants’ (then) representative’s email address on 9 October 2020. In this letter the applicants were advised that if a response or comments were not provided in writing by 26 October 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and 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.
The applicants did not provide comments or a response within the prescribed period and no extension of time in which to provide comments or respond was received or granted within the prescribed period.
In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it communicated with the applicants via email at their representative’s advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.
In doing so the Tribunal notes that on 12 October 2020 the applicant telephoned the Tribunal leaving the following message:
Applicant called and advised that he is unable to submit documents that were due today 12/10/2020 (referring to the hearing invitation) as he has received the email on Sunday 11/10/2020 at 2.00am. He requested for a extension. Please call him on xxxx.
The same day a Tribunal officer returned the applicant’s call. A contemporaneous case note records:
[The applicant] noted that he had been invited to hearing and the response was due today but he couldn't provide it today. I noted that it was important he provide the response form soon but there are no consequences if it is not provided today.
I asked whether he received our letter on Friday. I noted that the timeframe for providing a response to that letter is very strict. He said he would need to check his inbox. I said if he has not received it to let me know and I can try to send another copy. I noted I had sent it to the same email so it should have been received. [3]
I noted that his representative had advised that he was no longer acting for him. I asked if this was the case. He confirmed it was. He said he had a new representative. I noted I had sent an email about this last week including forms to complete. I requested that he complete the forms to confirm that Mr Haines is no longer acting and/or appoint a new rep as soon as possible. I stressed that this is important to ensure he receives correspondence as we are currently sending correspondence to his previous representative and are obligated to do so until he notifies us otherwise in writing. He confirmed he would do so.
I confirmed the email address listed is up to date. I asked whether he wanted me to add this number xxxx. He confirmed that was correct.
He also noted that he had left Australia on a BVB at the beginning of the year but had been unable to make his return flight and had been stuck overseas due to COVID and the borer closure.
[3]Tribunal’s emphasis.
On 26 October 2020 the applicant relevantly wrote to the Tribunal in the following terms:
I…would like to officially inform your good office through this email that as of today (26th October, 2020) all correspondence regarding my application must be sent to my email address commencing today ( 26th October, 2020).
Correspondence must not be sent to Dr. Timothy Haines of Emulink Migration and Intercultural Consultancies as of today 26th October, 2020. Also my email address of xxxx should NOT be used as my phone have crashed and cannot access messages on that email. This email xxxx will be more reliable from now on.
In proceeding to a decision, the Tribunal is satisfied that not only did it communicate with the applicants via email at their (then) properly appointed representative’s advised email address in a prescribed manner but, in a telephone conversation with a tribunal officer on 12 October 2020, the applicant was clearly advised of the importance of responding to the s.359A invitation which had a strict timeframe for responding
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).
Requirement for an approved nomination
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 detailed to the applicants in accordance with s.359A, there is no information contained on the Department’s files which records that the applicant is the subject of an approved nomination by a standard business sponsor.
As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.
For these reasons the requirements of cl.457.223(4)(a) are not met.
The second named applicants also do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.
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 applicants Temporary Business Entry (Class UC) visas.
Karen Synon
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.

[2020] AATA 4503

27 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction