Joy (Migration) - [2017] AATA 2054

Joy (Migration) [2017] AATA 2054 (19 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Lijo Joy
Mrs Lincy Antony
Master Elvin Lijo
CASE NUMBER:  1511768
DIBP REFERENCE(S):  BCC2015/801970
MEMBER:Alison Mercer
DATE:19 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 19 October 2017 at 7:25pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Standard business sponsor stream – Sponsorship for employment by standard business sponsor – Not the subject of approved nomination – Evidence provided

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, Schedule 2, cl.457.223,
CASES
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617
Chhetri v Minister for Immigration and Border Protection [2015] FCCA 3101

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 12 March 2015.
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 visas on 14 August 2015 on the basis that cl.457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination by an approved standard business sponsor. The delegate noted that the applicant’s proposed employer, Mustafa Balim, did not have an approved nomination in place in respect of the applicant, as its 2 nominations lodged with the Department had been refused. The delegate refused to grant the second and third named applicants (the applicant’s wife and son) subclass 457 visas as they did not meet the secondary visa criteria to be members of the family unit of a person who met the primary criteria, and there was no evidence to indicate that they met the primary visa criteria in their own right.
The Tribunal received a review applicant from the applicants on 27 August 2015, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Chetan Zabde, as their representative and authorised recipient for correspondence for the purposes of the review. Also provided were a copy of the applicant’s Certificate IV in Building and Construction (Building), a letter dated 4 April 2012 from Mustafa Balim of Balim Bricklaying stating that he had employed the applicant from 5 April 2011 to 4 April 2012 as a bricklayer and that he had provided satisfactory service, a further letter from Mr Balim dated 4 April 2013 stating that he had employed the applicant from 5 April 2012 to 4 April 2013 as a bricklayer, and a contract of employment between Mr Balim and the applicant dated 10 March 2015.
On 27 February 2017, the applicants’ agent advised the Tribunal that Mr Balim had withdrawn his nomination of the applicant, but a new employer, Helixo Brick Construction Pty Ltd, had lodged a nomination of the applicant with the Department, and this was being processed.
On 7 March 2017, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 24 March 2017.
On 22 March 2017, the applicants’ agent provided a written submission with supporting documents. The contents of his submission can be summarised as follows:
·the applicant had been working for Helixo Brick Construction Pty Ltd (‘Helixo’) since April 2016 as a bricklayer since his former employer Mr Balim withdrew his nomination of the applicant;
·Helixo lodged a nomination of the applicant with the Department in December 2016 and the Tribunal was requested to defer making its decision until this nomination application had been determined by the Department;
·Helixo provided bricklaying services to residential and commercial construction and the applicant was employed in the occupation of professional bricklayer, consistent with the duties listed for that occupation in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary;
·the applicant had been working as a bricklayer since 2011 and had completed formal qualifications in this as he had a Certificate IV from the Trades Institute of Victoria in Bricklaying. His skills were in high demand due to the growth in the construction industry across metropolitan areas in Australia in the past few years, and the lack of skilled employees available;
·Mr Balim was unwilling to maintain his nomination of the applicant due to the uncertainty of the applicant’s visa status and the lengthy processing time by the Department. Helixo had a number of contracts that were ongoing and had experienced consistent growth and were in the financial position to offer the applicant full time employment; and
·the applicant had the required English language skills.
The supporting documents included:
·letters and invoices, variously dated, from clients of Helixo, confirming bricklaying work being undertaken, or to be undertaken, by Helixo;
·photographs of the applicant at work;
·International English Language Testing System (IELTS) test report form for the applicant dated 9 January 2016;
·applicant’s tax returns for 2011/12, 2012/13, 2014/15, and 2015/16; and
·further letter from Mr Balim dated 10 March 2015 confirming the applicant worked for him from 4 April 2014 to date.
The applicant appeared before the Tribunal on 24 March 2017 to give evidence and present arguments. The applicant confirmed his visa history in Australia, indicating that he initially came in 2009 as a student and was subsequently granted 3 further student visas until March 2015, when he was granted a bridging visa, which he had held since then.
The applicant also confirmed his employment history working as a bricklayer for Mr Balim until April 2016, and since then for Helixo, initially for small jobs but regularly from December 2016 (20 hours per week as per his visa conditions). He said that Mr Balim had been pleased with his work but his unresolved visa status caused strains with this employer and eventually Mr Balim declined to continue the review of his refused nomination of the application. By this time, the applicant had lined up work with Helixo and they were happy with his work and had lodged applications to be approved as a standard business sponsor and to nominate the applicant to work for them as a bricklayer in December 2016. The applicants’ agent said that he acted for Helixo in these actions, and they had been asked to provide information to the Department recently. The applicant clarified that he had previously worked as a sub-contractor (with an Australian Business Number, ABN) and was currently doing so. Helixo had stated that he would be directly employed by them if he was granted a visa.
At the conclusion of the hearing on 24 March 2017, the Tribunal agreed to defer making a decision in relation to this matter until 31 May 2017.
On 1 June 2017, the Tribunal received a request from the applicant for the Tribunal to defer making a decision for a further period, as Helixo’s sponsorship application was approved on 26 May 2017 and the nomination application was still pending. The Tribunal agreed to defer making a decision until 27 June 2017.
The matter was reconstituted to a new Tribunal Member on 28 June 2017, after the original Presiding Member became unavailable to complete the review.
On 22 August 2017, the Tribunal wrote to the applicants via their agent pursuant to s.359A of the Act. The Tribunal set out the history of the nominations of the applicant made by Mustafa Balim and Helixo and noted that the Department’s records indicated that Helixo’s nomination application was refused by the Department on 9 June 2017. The Tribunal stated that this indicated that the applicant was not presently the subject of an approved nomination by an approved standard business sponsor, and that this information would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as cl.457.223(4)(a) required at the time of decision that he was the subject of an approved nomination by an approved standard business sponsor. The Tribunal invited the applicant to provide comments or a response in writing by 5 September 2017.
On 4 September 2017, the applicant’s agent provided a written response by email, in which he confirmed that Helixo’s nomination had been refused by the Department on 9 June 2017. He further advised that Helixo had lodged a new nomination of the applicant as a bricklayer with the Department on 1 September 2017. He requested that the Department defer finalising the matter until the outcome of the new nomination was known. He stated that although Helixo’s first nomination had been refused, there was a severe shortage of skills for the nominated occupation and Helixo had not been able to find a suitable skilled person for the position for the past 9 months. The agent reiterated that the applicant had been working as a professional bricklayer since 2011, held a Certificate IV in bricklaying and had continued to work for Helixo during the past year, where his skills were crucial to its operation.
On 12 September 2017, the Tribunal wrote to the applicants via their agent to advise that the Presiding Member was disinclined to defer making its decision on the matter to enable Helixo’s new nomination application to be determined by the Department, given that:
·the agent did not advise the Tribunal of the outcome of the first nomination; that is, that it was refused by the Department on 9 June 2017, and the Tribunal only became aware of this by checking the Department’s records for itself;
·the second nomination application was only made to the Department by Helixo after the Tribunal sent the s.359A letter about the rejection of the first nomination by Helixo; and
·there appeared little ground for assuming a new nomination by Helixo for the same position would be successful when the first one had been refused.
On 12 September 2017, the applicants’ agent wrote again to the Tribunal. He stated that when Helixo’s nomination was refused, Helixo considered lodging a new nomination for the applicant immediately. However, due to the difficulties faced in convincing the Department officer about the genuine position, Helixo decided to try to recruit a skilled Australian citizen or permanent resident, although the director held little hope of being able to do so. After using various methods, including recruitment through networks and speaking with various employment agencies, Helixo again failed to find a skilled person for the nominated position. At that point, Helixo considered it had no choice but to lodge a new nomination in relation to the applicant, especially after finding that the Tribunal was going to refuse the applicant’s subclass 457 visa review application. The agent submitted that Helixo could not afford to lose the applicant’s skills, and that Helixo was confident that there was more than sufficient evidence to prove that a skilled Australian could not be found to fill the nominated position. He therefore reiterated the request that the Tribunal defer its decision to await the outcome of Helixo’s second nomination application.
The Tribunal has considered whether it would be reasonable to defer its decision for a further period to await the outcome of Helixo’s second nomination of the applicant. The Tribunal acknowledges that it should properly and meaningfully consider whether an adjournment request is reasonable, as set out in the case of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The Tribunal has had regard to the Federal Court decision in Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617, in which the Court held that the Tribunal in that case did not deny the applicant procedural fairness by refusing to adjourn his case to await the outcome of a further nomination of the applicant (after an earlier one had been refused by the Department). The Court held that the Tribunal was not obliged to await the outcome of decisions on all sponsorship and nominations relevant to an applicant, given that this could give rise to an applicant remaining indefinitely in the system as new nominations and/or sponsorship applications were lodged after others were refused.
Similarly, in Chhetri v Minister for Immigration and Border Protection [2015] FCCA 3101, Street J held that it was not unreasonable for the Tribunal not to (further) adjourn making a decision on the review in circumstances where the applicant’s employer lodged a second nomination which was pending with the Department, in circumstances where the Department had refused the same employer’s first nomination for the same position.
The Tribunal acknowledges that the applicant in this case was not responsible for his first employer withdrawing his nomination review from the Tribunal, and that the applicant secured new employment with Helixo in a timely fashion, and that Helixo then lodged an application to be approved as a sponsor and to have its nomination of the applicant approved shortly after this. However, that nomination was rejected in June 2017, and a new nomination was not lodged until 1 September 2017. There is no indication that a decision on this nomination is imminent from the Department, and the Tribunal’s current observation of Departmental practice in assessing nominations is that this may take anywhere from 3 to 9 months to be determined. The Tribunal notes the submissions by the applicants’ agent that the new nomination is likely to succeed where the previous one failed because more extensive labour market testing has been undertaken. However, the Tribunal regards this submission as speculative at best.
Moreover, the Tribunal notes that it is subject to a statutory direction to conduct its review in a manner that is ‘fair, just, economical, informal and quick.’ The visa applications in this case were made on 12 March 2015. Over 2 years later, there have been 3 failed nominations of the applicant for the occupation of bricklayer by 2 separate employers, and a fourth one is pending with the Department by the same employer whose first nomination was refused, in relation to which there is no indication of an imminent resolution.
The Tribunal appreciates that the applicant has done his best to secure employment with employers who were willing to sponsor and nominate him. Unfortunately, no nomination application of him has been successful to date, and the Tribunal does not consider it reasonable to defer making its decision on this case for a further period in order to await the outcome of the fourth nomination.
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 applicant meets the requirements of cl.457.223(4)(a).
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 Tribunal made the following findings based on the oral evidence of the applicant, the delegate’s decision and information provided by the applicants’ agent:
·Mr Mustafa Balim, the applicant’s original employer, made a sponsorship application and a nomination application in 2015;
·on 12 March 2015, the applicants made applications for Temporary Business Entry (Class UC) visas.
·on 18 May 2015, the Department wrote to the applicants and advised that Mr Mustafa Balim did not hold an approved nomination in respect of the applicant;
·on 11 June 2015, Mr Mustafa Balim made a second nomination application of the applicant for the occupation of bricklayer. On 14 August 2015, the Department refused the second nomination application;
·on 14 August 2015, the Department refused the visa applications;
·in 2015, Mr Mustafa Balim made an application for review in respect of the decision to refuse the second nomination application;
·on 27 August 2015, the applicants made an application for review in respect of the decision to refuse their visa applications;
·on 27 February 2017, Mr Mustafa Balim withdrew the review application in respect of the refusal of the second nomination application;
·on 6 December 2016, Helixo Brick Construction Pty Ltd (a new employer) lodged a sponsorship application and a nomination application in respect of the applicant for the occupation of bricklayer;
·on 9 June 2017, Helixo’s nomination application was refused by the Department;
·on 22 August 2017, the Tribunal wrote to the applicants pursuant to s.359A of the Act to invite them to comment on the fact that Helixo’s nomination application had been refused; and
·on 1 September 2017, Helixo lodged a new nomination of the applicant for the position of bricklayer with the Department which has not yet been decided.
As noted above, the Tribunal determined that it was not reasonable for it to adjourn its decision in this matter to await the outcome of the fourth nomination application with the Department. As a result, it finds that the applicant is not currently the subject of an approved nomination by an approved standard business sponsor. He therefore does not satisfy the requirements of cl.457.223(4)(a).
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.
The Tribunal must also affirm the decision not to grant the second and third named applicants subclass 457 visas as there is no evidence that they meet the secondary visa criteria requiring them to be members of the family unit of a person who holds a subclass 457 visa, and there is no evidence to suggest that they meet the primary visa criteria in their own right.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Alison Mercer
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.