hayat (Migration)

[2018] AATA 5179

hayat (Migration) [2018] AATA 5179 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SIKANDER HAYAT,.
Ms MUNEBA RAHMAT
Miss AYAT SIKANDER

CASE NUMBER:  1619276

DIBP REFERENCE(S):  BCC2016/478013

MEMBER:Alan McMurran

DATE:27 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2018 at 12:45pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – adjournment request – pending Federal Circuit Court appeal of the Tribunal’s nomination decision – unknown resolution time – Tribunal declined indefinite adjournment of decision – no currently approved nomination in place – decision under review affirmed

LEGISLATION
Administrative Appeals Act 1975 (Cth), s 33
Migration Act 1958 (Cth), ss 65, 140GB, 357A, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

CASES
Bhandari v Minister for Immigration [2016] FCCA 2782
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIAC v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 1 February 2016.

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 visas on 4 November 2016 on the basis that cl.457.223 (4)(a) was not met because at the time of the decision, the primary applicant was not the subject of an approved nomination.

5. The applicants appeared before the Tribunal on 10 August 2018 to give evidence and present arguments. The Tribunal received oral evidence from the primary visa applicant. The hearing was a combined hearing with the application for review by the nominator, Turkish Kebab and Pizza Shop Pty Ltd[1] (the nominator), which nomination application was refused by the Department delegate on 26 August 2016.

   [1] Tribunal case number 1614704

6. The primary visa applicant represented the nominator at the combined hearing, as the primary visa applicant is a director of the nominator and duly authorised to appear for the nominator as well as himself.

7. The applicants were represented in relation to the review by their registered migration agent, who was also representing the nominator. The Tribunal explained to the primary visa applicant at the hearing the purpose of the reviews and informed him that the decision in relation to the nomination application would determine the outcome of the visa applications.

8. The Tribunal was satisfied that the primary visa applicant understood the purpose of the hearing and was able to engage in conversation freely with the Tribunal and without the need for an interpreter.

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

   Background

10. The primary applicant is a citizen of Pakistan and was nominated for the occupation of Café and Restaurant Manager[2].

    [2] ANZSCO 141111

11. This review application was made on 16 November 2016 following the refusal by the delegate. The Tribunal is satisfied that the application was properly made and the fee paid in respect of the review. A copy of the delegate’s decision was provided with the application for review.

12. The primary visa applicant has continued to work in the business of the nominator which is conducted as a Turkish kebab and pizza restaurant at the suburb of Belconnen in Canberra, A.C.T. One of the secondary applicants, Muneba Rahmat, who is the wife of the primary visa applicant, works in the business with the primary visa applicant. The remaining applicant, Ayat Sikander, is the daughter of the primary visa applicant.

13. On 10 August 2018, following the hearing of the application for review by the nominator, the Tribunal affirmed the decision of the Department not to approve the nomination.

14. On 10 August 2018, the Tribunal sent a natural justice letter to the visa applicants, inviting the applicants to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review and advising them that the review of the nomination application had been completed and the Department’s decision affirmed.

15. The applicants were invited to comment or respond to that information, and to do so in writing by 24 August 2018. The letter noted that this information was relevant to the review because it was a requirement for the grant of the visa that a nomination of an occupation in relation to the applicant had been approved under s 140GB of the Migration Act as required by cl 457.223(4)(a).

16. On 22 August 2018, the Tribunal received an email response from the representative on behalf of the visa applicants, attaching a letter of the same date. The letter states:

    “Our response to your invitation to comment is to seek an immediate adjournment on making a decision on the visa refusal review on grounds that the decision to affirm the associated nomination for Turkish Kebab and Pizza Shop Pty Ltd was affected by Jurisdictional Error. A copy of the Federal circuit filing documents are attached for your attention”.

17. The Tribunal has given consideration to the adjournment request and has regard to the relevant provisions in the legislation. Section 363 (1) (b) provides that for the purposes of the review of a decision, the Tribunal may adjourn the review from time to time.

18. The first issue for consideration therefore is whether or not in the proper exercise of its discretion the Tribunal might adjourn the review at the request of the applicants as set out in the section 359A response from the representative.

    Consideration 

19. The question is not without some difficulty, as the review of the visa applications is to determine firstly whether or not there is an approved nomination in place for the primary visa applicant. As the decision to refuse the nomination for a Café and Restaurant Manager by the nominator has been affirmed, there is currently no approved nomination in place in favour of the primary visa applicant and no further nomination application which has been made by him or which is the subject of review. It necessarily follows that the refusal of the visa applications must be affirmed, causing the visa applicants personal hardship.

20. It is a decision that should not be made arbitrarily and having regard to a number of relevant considerations, including the history of the proceedings, whether the amount of extra time sought is reasonable and what evidence and information has been put forward in support by the applicants, indicating the need for a postponement.[3] The Tribunal has had regard to a number of principles when considering adjournments, as outlined in Bhandari v Minister for Immigration [2016] FCCA 2782 at paragraphs 14 and 15.

    [3] MIAC v Li (2013) 249 CLR 332

21. The Act[4] specifies that the Tribunal must act in a way that is both fair and just. The Administrative Appeals Tribunal Act, 1975 provides guidance to the effect the Tribunal is to act with as little formality and technicality as the relevant circumstances might require and with as much expedition “as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit”.[5]

    [4] Migration Act s 357A (3)

    [5] AAT Act s 33(1)(b)

22. The Tribunal has considered the history of the proceedings, outlined to some extent by the chronology provided above. There is also a history concerning the primary visa applicant and the nominator as set out in the nomination review decision made 10 August 2018 in case number 1614704. The Tribunal does not repeat that history in this decision, noting only that the primary visa applicant has been the subject of a prior approved nomination for a 457 visa and in respect of which the visa was granted for a total period of 4 years. Prior to that, the primary visa applicant was a student and has been residing in Australia since his arrival on a student visa in 2008.

23. The primary visa applicant met his wife while studying in Australia and they now have a child. They have developed ties in Australia through their business and commencement of their family.

24. The primary visa applicant said at the hearing he had come to Australia to study business management. The opportunity to work in a restaurant and subsequently to purchase the business was in effect the by-product of obtaining initially a part-time position by “knocking on doors” when the applicant needed work and while studying in Canberra, and subsequently applying for and obtaining a Temporary Work (Skilled) visa (Subclass 457).

25. The Tribunal is further satisfied that the primary visa applicant is not seeking another nomination, and is not looking for other employment, but rather the grant of a further 457 visa to enable him to continue his existing occupation and management of his own business.

26. Against that background, the Tribunal has also considered whether the further time sought by an adjournment is reasonable. In essence, the letter requests an adjournment pending the outcome of a court review of the Tribunal’s nomination decision. It is not known what period of time might be involved in that process. The only ground put forward is the assertion of jurisdictional error in the Tribunal’s decision. The Tribunal makes no comment in respect of the appeal which is now before the Federal Circuit of Australia[6]. The Tribunal finds it is unable to say when that appeal process might be finalised.

    [6] SYG2324/2018

27. The Tribunal has considered the request to hold off on making a decision in this review until the judicial review application pertaining to the nomination has been finalised. The Tribunal is of the view that given the review of the decision relating to the nomination has already been considered and finalised by the Tribunal, it is considered to have been finally determined within the meaning of s.5 of the Act.

28. In the circumstances the Tribunal is of the view that given the unknown length of time the matter may take to resolve before the court and having regard to the Tribunal’s obligation to make fair, lawful, efficient and quick decisions, the Tribunal does not consider it appropriate to delay making its decision in this case.

    Findings

29. The Tribunal is satisfied that the primary review applicant is not the subject of a pending nomination, the nomination application having been determined. The Tribunal finds that the primary review applicant intends to pursue his objective of continuing the business of the nominator in Canberra and on the basis of a further visa granted under the 457 Temporary visa Subclass.

30. The Tribunal is satisfied that the only information put forward in support of the adjournment request is to delay the decision pending the outcome of an appeal to the Federal Circuit of Australia. No other submission has been made or information put forward upon which the Tribunal might rely for consideration.

    Should an Adjournment be granted?

31. The Tribunal has carefully considered the decisions in Huo v Minister for Immigration and Multicultural Affairs[7]and Manna v Minister for Immigration and Citizenship[8] where the Federal Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [7] [2002] FCA 617

    [8] [2012] FMCA 28

32. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[9] regarding the reasonableness of any request for an adjournment, and the need to avoid arbitrary and capricious decision-making in refusing same, and which might make such a decision therefore “unreasonable”. In addition, the Tribunal has some sympathy for the applicants who are well-established and seeking to make Australia their new home.

    [9] [2013] HCA 18

33. In attempting to find a balance between the requirements of the Act to ensure decisions are fair and just, and the findings made above that the applicants rely solely upon the possible outcome of an appeal, the timing and prospects of which are unknown, the Tribunal is of the view that the adjournment should not be granted.

34. The Tribunal is satisfied that there is nothing in the information before the Tribunal which would warrant the grant of an adjournment for an indefinite period while the applicants pursue an appeal to the Federal Circuit Court of Australia. For those reasons, the Tribunal has decided not to grant the adjournment requested by the applicants.

    CONSIDERATION OF CLAIMS AND EVIDENCE

35. 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

36. 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.

37. On 10 August 2018, the Tribunal affirmed the decision not to approve the nomination by the nominator of the primary visa applicant for the occupation of Café and restaurant manager.

38. The Tribunal finds that the primary visa applicant is not subject of a nomination of an occupation in relation to the applicant which has been approved under section 140GB of the Act.

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

40. 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.

    Secondary Applicants

41. The Tribunal has considered the applications by the secondary applicants which depend upon a finding that the primary applicant satisfies the primary criteria and is the holder of a subclass 457 Visa

42. The Tribunal finds that the secondary applicants are not members of the family unit of a person (the primary visa applicant) who is the holder of a subclass 457 Visa.

    DECISION

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

    Alan McMurran
    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.