Harwinder Singh (Migration)

[2021] AATA 230

Harwinder Singh (Migration) [2021] AATA 230 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Harwinder Singh

CASE NUMBER:  1826890

DIBP REFERENCE(S):  BCC2017/2017962

MEMBER:Ian Berry

DATE:20 January 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 20 January 2021 at 2:59pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Cook – subject of an approved nomination – circumstances not sufficient compelling or unique for referral – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 7 June 2017.

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 (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 11 September 2018 on the basis that cl.457.223(4)(a)(i) was not met because the applicant did not have an approved sponsor/nominator.

5. The applicant appeared before the Tribunal on 3 December 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. The applicant was represented in relation to the review by his registered migration agent Miss D Machado Medeiros Allen MARN 2014135. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a)(i).

   Requirement for an approved nomination

9. 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.

10. The applicant is a citizen of India, having arrived in Australia to further his studies. He achieved qualifications relating to his undertaking cooking in the restaurant environment. Ultimately, the applicant achieved a position with Sheetal Restaurant Pty Ltd located on the Gold Coast, Queensland. The issue before the Tribunal in the first instance, was whether the Sheetal had properly undertaken labour market testing as required by s.140GBA of the Act. The Tribunal was not satisfied Sheetal had complied with that criterion. The Tribunal was satisfied exemptions applied to that criterion. The nomination application by Sheetal was refused by the Tribunal on 16 September 2020.

11. In fairness to the applicant, on 15 October 2020, the Tribunal invited him to make comment or respond to the following information, stating that the information may be a reason or part of a reason to refuse his visa application:

    The particulars of the information are:

    ·On 7 June 2017, you lodged an application for a Temporary Business Entry (Class UC) (Subclass 457) visa with the Department of Home Affairs (then called the Department of Immigration and Border Protection) (the Department).

    ·On 13 August 2018, the nominator, Sheetal Indian Restaurant Pty Ltd, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 22 August 2018.

    ·On 16 September 2020, the Tribunal affirmed the Department’s decision to refuse the nomination.

    This information is relevant to the review because if the primary applicant cannot satisfy the criteria in clause 457.223 then the visa application cannot be granted.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 29 October 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant, through his representative provided a submission dated 26 November 2020.  This submission did not address the issue of whether the applicant but sought have the applicant’s case submitted by the Tribunal to the Minister under s.351of the Act.

13. The Tribunal acknowledges the concerns raised by the applicant in his submission to the Tribunal dated 26 November 2020.  It has been submitted to the Tribunal that the referral to the Minister should be made after considering the following compassionate grounds:

    a.The applicant’s age 29 years and was 22 years of age when entering Australia.

    b.The applicant commenced employment as a cook with Sheetal Indian Restaurant Pty Ltd which ultimately became the applicant’s sponsor.

    c.The applicant lodged his UC-457 Visa on the strength of his employer nominating him as a cook.  The nomination was refused on 13 August 2018 by the delegate and the delegate’s decision was affirmed by the Tribunal on 16 September 2020.

    d.It is alleged the applicant ‘would suffer significant harm’ if his visa was refused and he was compelled to return to his home country.  The applicant has built his adult life in Australia and ‘has come to call Australia home’.  The applicant says that he has made strong ties with the Australian community and has integrated well into the Australian community.  He does not have a criminal record and ‘has always sought to be a positive member in the Australian Society’.

    e.The applicant has complied with Australian migration laws and complied with the Visa conditions attached to all the visas he has held.

    f.The applicant has continued to pay taxes, obeyed Australian law and tried his best to be part of the Australian community.

    g.A consequence of the applicant’s Visa refusal is that his family would suffer significant harm by returning to India.  The applicant says that he would not be in the position of continuing to support his family particularly his parents who have come to rely upon his regular financial support.  The applicant says that he has a regular income from his position in Australia and it would be difficult for him to find employment in his home country particularly now because of the impact of COVID-19 pandemic.

    h.The applicant’s representative states that the applicant is smart and a motivated man who would benefit immensely from continuing to remain in Australia.  The representative further says that the applicant circumstances are unique and exceptional warranting the need for the Minister to intervene in his case.

    i.The representative submits that the Tribunal provide the minister with the direction that the Department consider removing the s.48 bar.  Such a removal would allow the applicant to remain on shore allowing him to apply for another substantive Visa while he awaits the outcome of his nomination decision which is the subject of an appeal to the Federal Circuit Court of Australia.

14. However, the Tribunal does not consider this issue in and of itself enough to meet the Ministerial Guidelines for intervention.  With respect, the applicant’s position is neither unique nor exceptional.  The circumstances in which he now finds himself is similar, if not identical, to a substantial number of Visa applicants who are the subject of a nomination refusal. 

15. The Tribunal does not consider that this is sufficiently compelling or unique to warrant Ministerial intervention. It declines to refer the matter but notes that it remains open to the applicant and her migration representative to make such a request directly to the Minister if they believe the applicant circumstances do fall within the Ministerial Guidelines or otherwise demonstrate compelling or unique factors

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

17. 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

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

    Ian Berry
    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.