Hassanzadeh (Migration)

Hassanzadeh (Migration) [2019] AATA 6321 (25 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Mohammad Zia Hassanzadeh
Raza Hassanzadeh
Hassan Hassanzadeh
Hameed Hassanzadeh

CASE NUMBER:  1721478
DIBP REFERENCE(S):  BCC2016/4348831
MEMBER:Mark Bishop
DATE:25 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa. In respect of the three above named secondary applicants the Tribunal finds it has no jurisdiction.
Statement made on 25 November 2019 at 2:52pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Mechanical Engineering Draftsperson – no approved nomination – nomination approval ceased 12 months after day nomination approved – medical issues – issues with migration agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 2A, 65, 360
Migration Regulations 1994(Cth), r 2.75(2)(b), Schedule 2, cl 457.223

CASES
MIAC v Li (2013) 249 CLR 332

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 23 December 2016.
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 visa on 24 August 2017 pursuant to cl.457.223(4) because IMMI 17/060 was altered on 1 July 2017 to exclude the occupation of Mechanical Engineering Draftsperson 312511. Hence the applicant could not satisfy cl.457.223(4)(aa).
The applicant appeared before the Tribunal on 25 November 2019 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) the applicant is not currently the subject of an approved or pending nomination by a standard business sponsor.
Request for adjournment
At 7.56pm on Sunday 24 November 2019 (the day before the scheduled hearing) the applicant forwarded a request for an adjournment to the Tribunal. It was received by the Tribunal at 7.30am the day of the scheduled hearing. The request for adjournment advised as follows:
·This is with great regret to report that due to my current medical conditions I will not be able to attend the hearing session for which I was waiting over two years. I am currently experiencing serious respiratory tract infection along Anxiety and Gastroesophageal. Please refer to medical certificated attached for your attention. I have been advised by my medical practitioner to stay away from second person due to high risk of infection transfer.
·I therefore request, to take my poor health condition into consideration and hence kindly arrange another hearing for my case that fits your schedule.
·I look forward to hearing from you
Attached to the request for adjournment outlined above in paragraph 9 was a copy of a medical certificate as follows:
·   This is to certify that Mr. Mohammad ·Hassanzadehis receiving treatment for a medical condition for the period Sunday, November 24, 2019 TO Saturday, November 30, 2019 INCLUSIVE.
·   With his consent, his medical conditions are:
o Respiratory Tract Infection
o Anxiety with sleeping problem
o Gastroesophageal Reflux
·   He will be unable to attend work on these dates. Thank you for your consideration.
The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360.
In the medical certificate provided to the Tribunal the treating doctor does not advise the applicant is unfit to attend a review hearing. In the medical certificate provided to the Tribunal the treating doctor does not advise the applicant should not attend a review hearing. In the medical certificate provided to the Tribunal the treating doctor does not advise of a course of remedial treatment to address the issues of the applicant relating to “Respiratory Tract Infection Anxiety with sleeping problem or Gastroesophageal Reflux”.
The applicant in his covering letter to the Tribunal linked his request for an adjournment to “…serious respiratory tract infection along with Anxiety and Gastroesophageal”
Quite expressly the treating doctor does not advise or confirm inability to attend the scheduled review hearing.
The applicant did not provide to the Tribunal any psychiatric, psychological medical or other professional reports (of course, excluding the material outlined above) relating to anxiety or otherwise related to an inability to attend a hearing because of anxiety related factors.
The Tribunal is aware s.2A of the AAT Act provides that in the carrying out its functions, the Tribunal must pursue the objective of providing a mechanism for review that is “… (b) fair, just, economical, informal and quick…” (Emphasis added).
The Tribunal was not minded to delay its review hearing processes further concerning the review applicant on the basis of assertions, unsupported by professional opinion or other evidence that the applicant cannot or should not attend a scheduled review hearing.
On 25 November 2019 after receipt of the hearing postponement request, as per the Member's instruction, the Tribunal officer Isabel O tried calling the PRA to want to advise him that the Member has declined the request and offer the PRA to attend the hearing via telephone; however, the PRA was not available; then the Member also requested the Tribunal officer to send out a letter to the PRA as an urgent matter to explain why the hearing postponement request was declined and offer a telephone hearing for the PRA and also explained what the consequence if the PRA does not appear the hearing. As the Tribunal was unable to contact the applicant by phone the Tribunal forwarded the following email as outlined in paragraph 20 below to the applicant.
Accordingly at 9.54am on 25 November 2019 the Tribunal responded to the request for an adjournment in the following form:
·   The Tribunal refers to your correspondence dated 25 November 2019 attaching a medical certificate dated 23 November 2019.
·   The certificate states that you are receiving medical treatment and for the period 24 November 2019 and 30 November 2019 that you will be unfit to work.
·   On the basis of the medical evidence currently before the Tribunal, the presiding Member is not prepared to grant an adjournment of the scheduled hearing.
·   In particular, having had regard to the limited information contained in the medical certificate provided, the presiding Member is not satisfied that you have demonstrated that you will be unfit to participate in a hearing, whether this be in person or otherwise in a hearing conducted via telephone. In particular, the medical certificate only makes reference to your incapacity to work, and provides no opinion or certification regarding your capacity to participate in a hearing, either in person or via telephone.
·   The Tribunal advises that a telephone hearing remains an option for you and if you do not intend to attend your hearing at the scheduled time and place, you should make yourself available on your telephone contact number in order that your hearing can be conducted in this manner.
·   In the event that you do not attend the Tribunal or respond to the Tribunal’s call from 1:15pm for the purposes of a telephone hearing, in the absence of any further medical evidence that you are unable to attend or participate in a telephone hearing, your application will be determined by this Tribunal without further notice.
·   The Tribunal will carefully consider any additional certification by your treating doctor(s) which outlines any reasons why you would be unable to appear before the Tribunal either in person or by telephone.
·   The hearing will otherwise proceed as scheduled.
Immediately after the forwarding of the email as outlined in paragraph 19 above the Tribunal officer at the direction of the member attempted to contact the applicant by phone to advise him the application for an adjournment was refused and the hearting would proceed as scheduled. The Tribunal officer left a phone message the hearing would proceed and for the applicant to check his email. The applicant then contacted the Tribunal and advised he did not wish a telephone hearing and would attend the scheduled hearing.
On 21 November 2019 the applicant forwarded the following email to the Tribunal:
·I am writing this email in response to your request of hearing invitation. I sincerely apologise for the late reply. This is due to late email delivery and conflict with my previous migration agent on the relevant documents. Meanwhile I was struggling to find a professional and honest migration agent to help understand the AAT review process further to take over my case.
·I received your email five days later than your submission date to my previous migration agent. Your email was sent to Roger Yeboah on the 6th of November but this letter was forwarded to me on the 11th of November 2019 late night Australian time. I noticed the email on the 12th of November. My migration agent had been overseas at that time and has forwarded the email late to me. Further I needed to collect the documents from his office for preparation of the review and received my documents on Tuesday the 12th of November through his assistant. Three days after receiving email, it was not enough time for me to prepare and reply to your request.
·Therefore I have not been able to reply for hearing invitation request as I was not sure who has to be me in the AAT review day.
·Please take my concerns into consideration and follow the schedule for the hearing on 25th of November.
In the current review application the Tribunal is satisfied the applicant has been provided with adequate notice of date of hearing and was able to provide submissions to the Tribunal if deemed appropriate. In any event it is the intention of the Tribunal to have regard to all material on both the Tribunal and Departmental files.
The applicant attended the review hearing.
Requirement for an approved nomination
The Tribunal advised the applicant the matter before the Tribunal for review had changed from the amendment of IMMI 17/060 to exclude the occupation of Mechanical Engineering Draftsperson on 1 July 2017 to the lack of an approved sponsor. The applicant advised the Tribunal he understood the issue before the Tribunal had changed. The applicant advised the Tribunal he understood the determinative issue before the Tribunal had changed.
The Tribunal provided adverse information to the applicant in a manner consistent with the Act. The Tribunal provided particulars of that adverse information. That information related to material on the Departmental file that showed the applicant is not currently the subject of an approved or pending nomination by a standard business sponsor. The Tribunal asked the applicant if he wished additional time to consider the adverse information. The applicant advised he did not seek additional time.
The Tribunal asked the applicant if he could provide to the Tribunal any information that showed he is currently the subject of an approved or pending nomination by a standard business sponsor. The applicant advised he could not.
The applicant provided the Tribunal with a copy of a “Nomination of approval of a nomination” dated 21 February 2017. The period of approval was 12 months and ceased to have effect “12 months after the day on which the nomination is approved” (21 February 2017). The applicant also provided a copy of a Bridging visa A to the Tribunal.
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.
On 23 December 2016, the department approved a nomination made by in respect of the visa applicant for the occupation of Mechanical Engineering Draftsperson. On 1 July 2017 IMMI 17/060 was altered to exclude the occupation of Mechanical Engineering Draftsperson 312511.
Due to the operation of r 2.75(2)(b) of the Migration Regulations, the approval of the nomination ceased 12 months after the day on which the nomination was approved on 23 December 2017.
Departmental records indicate that visa applicant is not currently the subject of an approved or pending nomination by a standard business sponsor.
It is a requirement under cl 457.223(4)(a) of Schedule 2 to the Migration Regulations that to be granted a subclass 457 visa at the time of decision the primary visa applicant is the subject of an approved nomination by a standard business sponsor.
The applicant does not satisfy cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.
Secondary Applicants
There are three secondary applicants. They are members of the family unit of the applicant.
On 8 October 2019 solicitors for the secondary applicants wrote to the Tribunal and advised Raza HASSANZADEH, Hassan HASSANZADEH and Hameed HASSANZADEH wished to withdraw the application for review. The Tribunal accepts this withdrawal.
There is no jurisdiction for the Tribunal to hear the application for review by the three named secondary applicants.
For these reasons the requirements of cl.457.223(4)(a) are not met.
CONCLUDING PARAGRAPHS (all cases)
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 visa applicant a Temporary Business Entry (Class UC) visa. In respect of the secondary applicant the Tribunal finds it has no jurisdiction.
Mark Bishop
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.

[2019] AATA 6321

25 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal