HARVINDER SINGH (Migration)

[2021] AATA 5552

HARVINDER SINGH (Migration) [2021] AATA 5552 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  HARVINDER SINGH
Mrs Charanjit Kaur DHALIWAL
Master Champreet Singh GREWAL
Miss Anam GREWAL

CASE NUMBER:  1837713

HOME AFFAIRS REFERENCE(S):          BCC2018/453615

MEMBER:George Hallwood

DATE:16 December 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 16 December 2021 at 3:16pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Transport Company Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.321

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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 27 January 2018.

3. 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.

4. The delegate refused to grant the visas on 6 December 2018 on the basis that cl 457.223(4)(a) was not met because they were not satisfied there was an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

5. The applicants appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal arranged a combined hearing with the related nomination matter but the applicant’s agent told them to appear independently so the nomination matter was heard prior to this case.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The Tribunal exercised its discretion to hold the hearing by video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. At the beginning of the hearing the applicant was provided with an opportunity to raise any objections they may have in relation to the hearing being held by video link and they raised none. The Tribunal is satisfied that the video hearing provided the applicant with a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review by its registered migration agent, Mr Nishan Singh who did not appear at the hearing.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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

11. 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.

12. On 26 November 2021 the Tribunal affirmed the decision not to approve the nomination to which this application is subject.

13. On 1 December 2021 the Tribunal wrote to the applicants inviting them to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review; noting that the Tribunal had not made up its mind about the adverse information. The particulars of the information, its relevance to the decision, and its potential consequences were set out in the invitation:

    The particulars of the information are:

    The application for approval of the nominated position made by TITAN LOGISTICS
    PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration.
    The nominator sought a review of that decision but it was recently affirmed by the
    AAT. This means that the nominator’s application for the nominated position has not
    been approved.

    This information is relevant to the review because it is a requirement for the grant of
    the visa that the position specified in your visa application is the subject of an
    approved nomination.

    If we rely on this information in making our decision, we may find that the position
    specified in your visa application is not the subject of an approved nomination. This
    would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

14. The applicants were required to provide their response by 15 December 2021 or seek an extension of time in which to provide the comments or response.

15. On 15 December 2021 the Tribunal received an email from the applicants’ migration agent requesting that the Tribunal hold its decision:

    Dear Respected Member,

    Kindly refer to your email dated 01 December 2021 for our above said client Mr Harvinder Singh. Mr Harvinder Singh has informed us that his employer (TITAN LOGISTICS PTY LTD) is applying for the review of Migration and Refugee Division of the AAT nomination decision at federal circuit court.

    So Mr Harvinder Singh has requested to please hold your decision for Temporary Business Entry (Class UC) visa application until judicial review is completed.

    Thanking you,

    Yours sincerely

    Nishan Singh, JP
    MARN 0955862, NZIAA 201503440
    Australia New Zealand Migration and Education

16. The Tribunal has considered this request having regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The potential delay in making a decision can include: the time it may take the employer to lodge a review; the current timeframes for these cases being heard in the Federal Circuit Court; the potential for other delays to further hold up the decision. This potential is, in effect, an indefinite holding of the decision, together with an administrative burden of tracking the progress of the further review. During any delay, premised on the ground that the decision reached by the Tribunal in the related matter may be changed at some future time by the Federal Circuit Court, the fact that the nomination application has been refused retains full lawful effect. No submissions have been received that show unfairness or injustice would result for the applicants should the Tribunal make a decision. It is clear, however, that the economical and quick objectives of the Tribunal would not be met should a decision be delayed indefinitely. For these reasons I will proceed in this matter.

17. The related nomination of an occupation, Transport Company Manager (ANZSCO 149413) relating to the primary applicant, Mr Harvinder Singh, by a standard business sponsor, Titan Logistics Pty Ltd has not been approved.

18. For these reasons the requirements of cl 457.223(4)(a) are not met.

19. Clause 457.321 of Schedule 2 of the Migration Regulations must relevantly be satisfied in relation to applicants relying on the family unit criteria. This clause provides:

    457.321

    The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

20. As the primary applicant does not hold a subclass 457 visa the secondary applicants are therefore, in relation to this application, not members of the family unit of a person who is the holder of a subclass 457 visa.

    CONCLUDING PARAGRAPHS

21. 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

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

    George Hallwood
    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.