Kaur (Migration)

[2021] AATA 2601

Kaur (Migration) [2021] AATA 2601 (5 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Baljeet Kaur
Mr Harwinder Singh Gill
Miss Avleen Kaur Gill

CASE NUMBER:  1909808

HOME AFFAIRS REFERENCE(S):          BCC2017/4918208

MEMBER:Susan Trotter

DATE:5 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2021 at 6.44pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – postponement of hearing requested – medical evidence – Cook – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Singh v Minister for Home Affairs [2019] FCA 723

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. Under the Act and Regulations, prior to 18 March 2018,[1] there were three stages in sponsoring an employee from overseas in the Subclass 457 visa programme:

   (a)  Sponsorship – an employer applies for approval as a standard business sponsor;

   (b)  Nomination – the employer nominates an occupation for a prospective or existing Subclass 457 visa holder; and

   (c)   Visa application – the person nominated to work in the nominated occupation applies for the Subclass 457 visa.

   [1] From which date new applications for Subclass 457 visas ceased.

3. The visa applicants applied for the visa on 22 December 2017 with the first-named applicant, as primary visa applicant (the applicant), seeking to work in the nominated occupation of Cook (ANZSCO 351411) for Sri Ksheera Ramalingeswara Pty Ltd (the nominator).

4. 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.

5. The delegate refused to grant the visas on 3 April 2019 on the basis that cl 457.223(4)(a) was not met because the nominator did not have an approved nomination in relation to the applicant as required. As regards the secondary applicants, the delegate was consequentially not satisfied that they were each the member of a family unit of a person holding a Subclass 457 visa as required by cl.457.321.

6. The visa applicants lodged an application with the Tribunal on 18 April 2019 seeking review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.

7. On 12 May 2021, the Tribunal wrote to the applicants care of their advised representative and recipient, advising that the Tribunal had considered the material before it but was unable to make a favourable decision on the information before it and invited the applicants to a hearing on 3 June 2021.

8. On 18 May 2021, the applicants emailed the Tribunal seeking a postpone of the hearing on the basis that the applicant ‘is currently sick’. The applicant provided a medical certificate dated 17 May 2021 stating as follows:

   ‘Ms Baljeet Kaur has a medical condition (Upper respiratory infection and shortness of breath) and will be unfit for work from 17/05/2021 to 31/05/2021 inclusive. I have recommended to get tested for Covid-19.’

9. The applicant also provided a copy of a referral for Covid-19 testing.

10. The Tribunal notes that the medical certificate provided by the applicant did not canvass the applicant’s fitness to participate in a hearing, as opposed to work, and in any event the certificate did not cover the date of the hearing, 3 June 2021, but rather was limited to the period ‘17/05/2021 to 31/05/2021’. The Tribunal notes the Federal Court decision of Singh v Minister for Home Affairs [2019] FCA 723, where the Court considered the weight given by the Tribunal to a medical certificate in relation to a request for reinstatement. The certificate in that case referred to the applicant having received unspecified ‘medical treatment’ and being ‘unfit to continue his usual occupation/study’. The Court stated that the certificate in that case was ‘bland’ in its assessment as to the fitness of the applicant in that matter to attend a hearing. The Court was satisfied that it was open to the Tribunal in that matter, when considering a reinstatement application request following failure of an applicant to attend a hearing, to form the view that the medical certificate was ‘inadequate to explain the applicant’s non-appearance’.

11. The Tribunal was similarly of a view in this matter that the medical certificate provided by the applicant was inadequate to support a request for postponement of the hearing.

12. On 19 May 2021, the Tribunal responded to the applicants advising that the postpone request had been refused.

13. The applicant appeared by telephone before the Tribunal on 3 June 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi and English languages. The Tribunal explained at hearing the reasons why the requested postponement had not been granted and asked the applicant if there was anything further she wished to say in relation to the adjournment request. The applicant indicated that she had nothing further to say in relation to that request.

14. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter. 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 telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

17. 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.

18. The applicant applied for the visa on the basis of a nomination application in relation to the applicant made under s.140GB of the Act by the nominator.

19. The Tribunal discussed with the applicant that she provided a copy of the delegate’s decision to the Tribunal and that the decision included that at the time the Department considered the matter, the nominator did not have an approved nomination in relation to the visa application.

20. Additionally, the Tribunal put to the applicant[2], that, information before the Tribunal is that:

    (a)  On 20 August 2018, the nominator applied to the Tribunal for review of the decision of the Department to refuse to approve the nomination application.

    (b)  On 26 March 2021, the Tribunal (differently constituted), in case file 1824171, affirmed the Department’s decision to refuse the nominator’s nomination application in relation to the applicant. 

    (c)   There has been a change in the Subclass 457 scheme and law and it is no longer possible to apply for a new nomination supporting a Subclass 457 visa since 18 March 2018.

    [2] Pursuant to procedure set out in section 359AA of the Act

21. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this information and found that there was no approved nomination that had not ceased, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant and, further consequently, to refuse to grant the visas to the secondary applicants. The Tribunal invited the applicant to comment on or respond to the information or to seek additional time to do so.

22. The applicant sought to respond to or comment on the information there and then at the hearing and told the Tribunal that she is now looking to get a new nomination for a Subclass 482 visa and she needs another three to four months and asked the Tribunal to give her further time. The Tribunal noted that the applicant had already had significant time to look at other options and that it was not the role of the Tribunal to further delay the finalisation of the matter in those circumstances. The Tribunal considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

23. The Tribunal has taken into account the fact that the applicant has been aware since at least June 2020 when the nominator closed its business that there was no prospect of an approved nomination with the nominator. Further, as discussed with the applicant at hearing it is now no longer possible to make a new nomination application in respect of a Subclass 457 visa applicant.

24. The Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review to allow the applicant more time in circumstances where a criterion for the visa the subject of the review is not met and cannot now be met.

25. As discussed with the applicant, without diminishing in any way the applicant’s circumstances, the only issue before the Tribunal is whether there is an approved nomination that has not ceased. There is no provision in the legislation to take into account discretionary matters in relation to this issue.

26. There is no evidence before the Tribunal that the applicant is the subject of a nomination of an occupation in relation to her which has been approved under s.140GB of the Act as required by cl.457.223(4)(a)(i) of Schedule 2 to the Regulations, and given the abolition to the Subclass 457 visa scheme no new application for a nomination capable of supporting the applicant’s Subclass 457 visa application can now be made.

27. At the time of this decision, there is no evidence before the Tribunal of an approved nomination of an occupation under s.140GB relating to the applicant.

28. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

29. It is no longer possible to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.

30. The Tribunal finds that there is no approved nomination by a standard business sponsor that has not ceased.

31. It follows that the requirements of cl.457.223(4)(a) are not met and cannot now be met.

    Conclusion

32. 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.

33. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.

    Secondary applicant

34. The Tribunal must also affirm the decision not to grant the secondary applicants a Subclass 457 visa as they are not each a member of the family unit of a person who holds a Subclass 457 visa as required by cl.457.321, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Susan Trotter
    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.