Gill (Migration)

[2018] AATA 5475

Gill (Migration) [2018] AATA 5475 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kamaljeet Kaur Gill

CASE NUMBER:  1707667

DIBP REFERENCE(S):  BCC2016/2453940

MEMBER:Amanda Mendes Da Costa

DATE:15 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 15 November 2018 at 10:26am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – no approved nomination – position associated with nominated occupation not genuine – sponsor’s nomination refused – fair opportunity to provide relevant information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 363(1)(b)
Migration Regulations 1994, Schedule 2, cls 457,457.223(4)(a)

CASES
Craig v South Australia (1995) 184 CLR 63
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Minister for Immigration andBorder Protectionv Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 July 1994.

3. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. 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. The delegate refused to grant the visa on 24 March 2017 on the basis that cl.457.223(4) (a)  was not met because the applicant’s prospective employer, CS Automotive Services (Laverton) Pty. Ltd. did not have an approved nomination.

5. The applicant seeks review of the delegate’s decision and for that purpose has provided the Tribunal with a copy of the primary decision.

6. The applicant appeared before the Tribunal on 10 August 2018 and 4 October 2018 to give evidence and present arguments.  The Tribunal also heard evidence from Mr Darren Didus, Mr Ajadvinder Brar and Mr Iqbal Singh. At the completion of the hearing on 4 October 2018 the Tribunal gave the applicant until 26 October to provide the Tribunal with any further documentation and written submissions.

7. The applicant was represented in relation to the review by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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.

11. On 15 June  2018 this Tribunal affirmed the primary decision in respect of an application for review by the applicant’s prospective employer CS Automotive Services (Laverton) Pty. Ltd (the company) on the grounds that the Tribunal was not satisfied that the position associated with the nominated occupation was genuine.

12. The applicant provided the following documents to the Tribunal:

    ·Payroll advice documents for the applicant for her employment with the company dated 21 August 2018 and 18 September 2018.

    ·Financial Statements for the company for the year ended 30 June 2018.

    ·Written submissions dated 22 August 2018 and 26 October 2018.

    Applicant’s evidence

13. The applicant told the Tribunal that she had been employed by the company on a full-time basis since 2016.  She explained that her position was a genuine one and referred to the payroll advice documents as evidence of her employment.  The applicant said that other employees of the company, who were employed in positions similar to her own, had been granted a visa and she was unable to understand why her visa had not been granted.

14. The applicant conceded that there was not an approved nomination of an occupation relating to her by a standard business sponsor, that had not ceased.

    Evidence of Darren Didus

15. Mr Didus is the Manager of the company and has been employed in that position since 2013.  He has been a qualified motor mechanic for approximately 30 years.  He told the Tribunal that the applicant had been employed by the company as a full-time motor mechanic since 2016.  He described the applicant as a hardworking and valued member of the company’s repair workshop team and said she was a very competent mechanic.

    Evidence of Ajadvinder Brar

16. Mr Brar is also employed by the company as a motor mechanic.  He told the Tribunal that the applicant was a skilful mechanic and worked well with the other members of the company’s repair workshop team members.

    Evidence of Iqbal Singh

17. Mr Singh is a director of the company.  He confirmed the applicant’s employment as a motor mechanic since 2016.  Mr Singh described the applicant’s position with the company as a genuine one and that she was a competent mechanic and hard worker.

18. Mr Singh told the Tribunal that other employees had obtained visa’s without any problems and he couldn’t understand why the company’s nomination of the position of motor mechanic for the applicant has been refused by the Department and that the company’s subsequent application for review to the Tribunal had not been successful. 

19. Mr Singh requested that the Tribunal re-open its decision made 15 June 2018 to affirm the primary decision that the position associated with the nominated occupation for Ms Gill was genuine.

20. The applicant’s submissions may be summarised as follows:

    ·An error of law affects this review application as a result of the error made by the Tribunal in its decision regarding the associated nomination for the company.

    ·Given the error made by the Tribunal in affirming the primary decision in relation to the nomination for the company, the Tribunal should reconsider its decision for the company.

    ·Both the applicant and the company were concerned about the manner in which the nomination decision was made by the Tribunal which had led to a miscarriage in the Tribunal’s procedures.

    ·The applicant considers that she was targeted because she was a female working as a motor mechanic which is otherwise a predominantly male occupation.

    ·The applicant’s position with the company is a genuine one and she is a valued employee engaged on a full-time basis as a motor mechanic.

21. The applicant’s agent referred the Tribunal to the decisions of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 and Craig v South Australia (1995) 184 CLR at 163, in support of its submission that a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded in law, as no decision at all.

22. The Tribunal acknowledges that the applicant and the company are aggrieved at the Tribunal’s decision regarding the company’s application for review of the delegate’s decision regarding its nomination application.  However, the Tribunal does not consider that this proceeding provides the appropriate forum for either the company or the applicant to challenge the Tribunal’s decision in respect of the company’s nomination for the following reasons:

    ·The Tribunal is functus officio in respect of its decision regarding the company’s nomination given that the Tribunal’s decision was completed on 15 June 2018 and the decision has been provided to both the Department and the company.  The Tribunal finds that its statutory function in respect of the company’s application for review has been performed and there is no further function or act for the Tribunal to perform in relation to that review.

    ·The company is not a party to this proceedings and has ‘no standing’ to appear in this proceedings, although Mr Singh gave evidence as a witness at the hearing in this proceedings, on 4 October 2018.

    ·The applicant’ was not a party to the company’s application for review in respect of the delegate’s decision regarding the nomination application and has no standing to seek judicial review of the Tribunal’s decision for the company.

23. The Tribunal notes that although the company had the option of seeking judicial review of the Tribunal’s decision regarding its nomination application, the Tribunal has been provided with no evidence (either documentary or oral) that the company has taken any steps to seek review of the Tribunal’s decision.

24. On 26 October 2018 the applicant sought further time from the Tribunal in which to provide further evidence and submissions to support the review application.

25. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence and submissions to support the review application.  In doing so, the Tribunal has taken into account the decisions 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 have held that the Tribunal is not required to indefinitely defer its decision-making processes. It also had regard to the decision in Minister for Immigration and Citizenship v Li (2013) 239 CLR 332 regarding the reasonableness of any request for adjournment and the Full Federal Court decision in Minister for Immigration andBorder Protectionv Singh (2014) 231 FCR 437 which considered this issue, as well is a more recent decision in Kaur v Immigration and Border Protection (2014) 236 FCR 393 where analogous issues were discussed.

26. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements of cl.457.223(4)(a) of the Regulations is likely to be forthcoming; whether the applicant has had a fair opportunity to provide the relevant information or documents already; and the significance of the informational documents of the applicant.

27. In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal also notes that the applicant’s representative has not given the Tribunal any specific timetable in which she expects the applicant to provide her with further instructions. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the requirements of cl.457.223(4)(a) of the Regulations.

28. The Tribunal finds that given the nomination by the company of an occupation in association with the applicant’s visa application has not been approved under s.140GB of the Act and that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased, the requirements of cl. 457.223(4) (a) are not met by the applicant.

29. Accordingly, the requirements of cl.457.223(4)(a) are not met.

30. 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

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

    Amanda Mendes Da Costa
    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.