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

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).
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.
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).
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.
The delegate refused to grant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2601
Decision Date: 5 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Kaur, the primary applicant for a Temporary Business Entry (Class UC) visa (Subclass 457), and her secondary applicants. The dispute centred on whether the primary applicant met the requirements of subclause 457.223(4)(a) of Schedule 2 to the Regulations, specifically concerning an approved nomination for the occupation.

The Tribunal was required to determine if there was an approved nomination for the applicant's occupation by a standard business sponsor that had not ceased. The Tribunal noted that the nominator had applied for review of the Department's decision to refuse to approve the nomination application, and this refusal had been affirmed by the Tribunal in a previous proceeding. Furthermore, the Tribunal observed that it was no longer possible to apply for a new nomination supporting a Subclass 457 visa after 18 March 2018.

In its reasoning, the Tribunal explained that the absence of an approved nomination that had not ceased would be a reason to affirm the decision to refuse the visa. The applicant requested an indefinite adjournment to seek a new nomination for a Subclass 482 visa, but the Tribunal declined, citing previous decisions such as *Huo v Minister for Immigration and Multicultural Affairs* [2002] FCA 617 and *Manna v Minister for Immigration and Citizenship* [2014] FMCA 28, which establish that the Tribunal is not required to indefinitely defer its decision-making. The Tribunal also had regard to the principles of reasonableness of adjournment requests as discussed in *Minister for Immigration and Citizenship v Li* [2013] HCA 18 and *Minister for Immigration and Border Protection v Singh* [2014] FCAFC 1.

Consequently, the Tribunal affirmed the decision not to grant the primary applicant a Subclass 457 visa due to the lack of an approved nomination. The Tribunal also affirmed the decision not to grant the secondary applicants visas, as they did not meet the criteria for being family members of a Subclass 457 visa holder and had not met the primary visa criteria in their own right.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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)(a) of Schedule 2 to the Regulations. 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 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. 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. 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 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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