Harmanjeet Singh (Migration)

Harmanjeet Singh (Migration) [2021] AATA 1752 (22 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harmanjeet Singh
CASE NUMBER:  1733144
HOME AFFAIRS REFERENCE(S):          BCC2017/749129
MEMBER:Susan Trotter
DATE:22 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 22 April 2021 at 5:21pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 and Border Protection to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Under the Act and Regulations, prior to 18 March 2018,[1] there were three stages in sponsoring an employee from overseas in the Subclass 457 visa programme:
(a) Sponsorship – an employer applies for approval as a standard business sponsor;
(b) Nomination – the employer nominates an occupation for a prospective or existing Subclass 457 visa holder; and
(c) Visa application – the person nominated to work in the nominated occupation applies for the Subclass 457 visa.
[1] From which date new applications for Subclass 457 visas ceased.
The visa applicant originally applied for the visa on 24 February 2017 seeking to work for Laxmii Narayan Pty Ltd.
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 (Cth) (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 12 December 2017 on the basis that cl 457.223(4)(a) was not met because the nomination application lodged by Laxmii Narayan Pty Ltd was refused by the Department on 9 November 2017 meaning that the applicant was not the subject of an approved nomination as required.
The applicant lodged an application with the Tribunal on 29 December 2017 seeking review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal by video conference on 16 March 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
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) of Schedule 2 to the Regulations.
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.
The applicant applied for the visa on the basis of a nomination made under s.140GB of the Act by Laxmii Narayan Pty Ltd.
The delegate’s decision record indicates that on 5 September 2017, a decision was made by the Department to refuse the nomination application made by the applicant’s proposed employer, Laxmii Narayan Pty Ltd. As the applicant was therefore not the subject of an approved nomination, the delegate was not satisfied that cl.457.223(4)(a) had been met and refused the visa application.
Subsequently, on 28 February 2018, JA Auto Care Pty Ltd lodged a nomination application in relation to the applicant. On 21 May 2018, that nomination application was also refused. JA Auto Care Pty Ltd applied to the Tribunal for review of the decision to refuse its nomination application.
The Tribunal discussed with the applicant at hearing the background to his visa application, as canvassed in his representative’s written submissions dated 12 March 2021 and acknowledged the challenging background circumstances in relation to the visa application and the impact upon the applicant’s mental and physical health. However, as discussed with the applicant and his representative at hearing, and as recognised by them, there is no discretion that the Tribunal may exercise to recognise the applicant’s particular circumstances if there is no approved nomination as required.
On 31 March 2021, the Tribunal, in case file 1816888, affirmed the Department’s decision to refuse JA Auto Care Pty Ltd’s nomination application in relation to the applicant.
On 31 March 2021, the Tribunal wrote to the applicant advising of its 31 March 2021 decision to affirm the delegate’s decision to refuse to approve JA Auto Care Pty Ltd’s nomination application. The Tribunal also noted that the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 commenced on 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants such that a new application for approval cannot be made.
The Tribunal invited the applicant to comment on or respond to that information suggesting that the applicant is not, as required for the grant of the visa, the subject of an approved nomination by a standard business sponsor that has not ceased, which would be the reason, or part of the reason, for affirming the decision under review to refuse to grant the visa.
On 10 April 2021, the applicant responded to the Tribunal’s invitation by his representative noting that he was well aware of the outcome of his appeal in the absence of an approved nomination such that the appropriate decision could be made.
There is no evidence before the Tribunal that the applicant is the subject of a nomination of an occupation in relation to him which has been approved under s.140GB of the Act as required by cl.457.223(4)(a)(i) of Schedule 2 to the Regulations, and given the abolition to the Subclass 457 visa scheme no new application for a nomination capable of supporting the applicant’s Subclass 457 visa application can now be made.
The requirements of cl.457.223(4)(a) of Schedule to the Regulations are not met and cannot now be met.
Conclusion
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 applicant would be able to satisfy the specific criteria for those streams.
It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Susan Trotter
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.

[2021] AATA 1752

22 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Intention