Khadgi (Migration)

[2021] AATA 3488

Khadgi (Migration) [2021] AATA 3488 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rakesh Khadgi

CASE NUMBER:  1834247

HOME AFFAIRS REFERENCE(S):          BCC2018/1010932

MEMBER:Alison Mercer

DATE:8 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 8 September 2021 at 3:29pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination –application for review of refusal of related nomination application withdrawn – agent did not notify applicant of tribunal’s invitation to comment – employer sold business – new employment in same work sector – legislative amendments mean new nomination application would not meet requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 494D(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

CASES
Chen v MIBP [2016] FCCA 2351
Hasran v MIAC (2010) 183 FCR 413
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
MIAC 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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 March 2018.

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 (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.

4. The delegate refused to grant the visa on 7 November 2018 on the basis that cl 457.223(4)(a) was not met. This subparagraph required that the applicant was the subject of an approved nomination by an approved standard business sponsor, and the delegate found that the nomination of the applicant as a Cook by his employer, All in Endeavours Pty Ltd as trustee for the Sikatak Trust (‘All in Endeavours’) had been refused by the Department on 31 July 2018. The delegate found that the applicant did not meet the criteria in the Standard Business Sponsor stream, had not made claims against any other stream and therefore could not be granted a subclass 457 visa.

5. The Tribunal received a review application from the applicant on 27 November 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Suraj Khatri, as his representative and authorised recipient for correspondence.

6. On 26 July 2021, the Tribunal wrote to the applicant via his agent to invite him to attend  a telephone hearing on 18 August 2021.

7. On 2 August 2021, the Tribunal wrote again to the applicant via his agent, to invite him to respond to or comment on information held by the Tribunal pursuant to s.359A of the Act. The Tribunal advised that its records indicated that although the applicant’s employer, All in Endeavours Pty Ltd, had sought review with the Tribunal of the Department’s decision to refuse its nomination of the applicant, the Tribunal (differently constituted) had made a decision on 19 March 2021 that it had no jurisdiction to review that decision, as the employer had withdrawn its review application.

8. The Tribunal advised that this indicated that the applicant was not the subject of an approved nomination and thus could not meet cl.457.223(4)(a). It noted that, as he had not made claims against any stream other than the Standard Business Sponsor stream, this would be a reason (or part of the reason) to affirm the decision to refuse to grant him a subclass 457 visa. The Tribunal further noted that significant legislative amendments made on 18 March 2018 to the subclass 457 visa and associated nomination program meant that a new nomination by the original employer or a new employer would not satisfy cl.457.223(4)(a). The Tribunal requested that the applicant provide comments or a response (or seek an extension of time to do so) by 16 August 2021, noting that if he did not do so, he would lose his entitlement to a hearing and the hearing scheduled for 18 August 2021 would be cancelled.

9. On 4 August 2021, the Tribunal received notification from the applicant’s agent that he no longer represented the applicant.

10. The Tribunal did not receive any comments or response to its s.359A letter, or a request for an extension of time to provide them, by 16 August 2021.

11. On 17 August 2021, the Tribunal wrote to the applicant to advise that in the Tribunal’s s.359A letter dated 2 August 2021, it was stated that if he did not provide a comment or response or seek an extension of time to respond by 16 August 2021, he would lose his right under the Act to appear before the Tribunal to give evidence and present arguments, and also that the Tribunal may make a decision on the review without taking any further action to obtain the information. The Tribunal confirmed that as it did not receive a response or a request for an extension of time by the due date, the applicant had lost his right to appear before the Tribunal to give evidence and present arguments, and the hearing scheduled for 18 August 2021 would therefore be cancelled. The Tribunal advised, however, that the Presiding Member agreed to defer making a decision in this matter until 25 August 2021 to enable the applicant to provide any additional material he wished to provide to support the case.

12. On 24 August 2021, the Tribunal received an email from the applicant attaching a statement providing details of his case, as follows:

    My name is Rakesh Khadgi and I am currently residing [in regional Victoria]. I am writing this letter to address my position with regards to the visa conditions. I arrived in Australia from Nepal as a student in February 2014. In 2015, I started working for a company called Old Faithful Café, situated at 65 Coonans Road, Pascoe Vale South 3044. While working there, I gained trust and support from the owner, who wanted to sponsor me. We applied for visa subclass 457 on 26th August 2016 and got accepted on the 7th of October 2016, which became one of the days to remember in my life. The Department of Home Affairs granted me a visa subclass 457 for a year and a half. This further encouraged me and I enjoyed contributing my skills to the café in every way possible. I worked in the cafe from the day of its establishment. I had a strong attachment to it and took upon my responsibility very enthusiastically.

    After a year and a half, my visa was about to end as well. The owner of the company did not want me to leave the cafe, so we applied for an extension of visa subclass 457 on the 2nd of March 2018. This grew new positive hopes in me and I was excited about seeing what the future had in store for me. However, this time things did not go as expected. The business nomination was refused and everything turned upside down. While applying for visa subclass 457 in 2016, the Australian Department of Home Affairs approved the business and also granted me a Visa subclass 457 visa during that time. We could not understand why the nomination was refused as the business was doing a lot better than in previous years. We were told by the migration agent that the reason for refusal was that the café was small or just a takeaway, but that was not true. The café had over 65 seating and had over 450 dine-in meals just on weekends. Old Faithful Café is a well-established café and is doing really well compared to other good cafes and restaurants around it. My main concern is why the nomination was approved in 2016 but not in 2018. 

    My application for merit review is currently pending with the AAT. My employer and I had waited to hear the decision for a year, but unfortunately, my employer had to sell the business for personnel [sic] reasons. Since the refusal, I have always complied with my visa conditions. I had a Bridging Visa A (Class WA) in Australia with 8107-WORK LIMITATION and the business is no longer under the same owner and ABN. Due to this, I could not work for almost a year and a half. In this current situation of COVID-19, when almost everyone in the country and world is passing through financial hardship, I too needed to work to support myself. I applied for work rights to be granted on the 18th of May 2021 as I no longer had savings remaining and started to go into debt. Bills were looming all the time, along with other necessary expenses, and due to the current crisis, no friends were in a position to help me in those days. On the 26th of May 2021, I received an email regarding a work right grant. I can’t thank the department of home affairs enough for finally letting me work and taking the stress of bills over my head. I have finally started working again as a full-time chef in a café called The Wildseed, situated at 330 Gillies St N, SHOP 119 STOCKLAND WENDOUREE SHOPPING CENTRE, Wendouree, VIC 3355. An employer is ready to provide any kind of documents to sponsor me. I truly believe that I can contribute a lot to that café.

    My migration lawyer has not been giving me proper guidance regarding my visa application, which is making my case even worse. Honestly, I was not aware that I had to provide a response or comment to the letter dated 2 August 2021 from the Tribunal. My migration agent, previously representing me, had only advised me that I had to attend a hearing scheduled for 18 August 2021 for which I had signed and completed the relevant form and which I believe was forwarded to the Tribunal by my former agent. All correspondence prior to the letter dated 17 August 2021 was sent to my former representative. I sincerely request you to reschedule another hearing so that my case can be put forward. Whilst I admit that I should have been more aware of the situation, I regretfully trusted my former agent.

    Please contact me if you need any further information/documents.

13. On 31 August 2021, the Tribunal advised the applicant by email that the Presiding Member had read this submission but was unfortunately, was unable to offer him a rescheduled hearing, as his hearing right was lost due to his non-response to the Tribunal’s s.359A letter dated 2 August 2021. The Tribunal noted that the applicant was deemed to have received this letter even though he had indicated his agent did not advise him of the need to respond. The Tribunal advised, however, that  the Presiding Member would take the contents of the applicant’s letter into account and that if he had any further information he wished to present for the Presiding Member to consider, he should provide this by email by Monday 6 September 2021.

14. On 6 September 2021, the Tribunal received an email from the applicant as follows:

    Thank you for your email. Thanks for giving me a chance to present my queries to the Presiding Member. I have pretty much attached my whole scenario in the previous email that I sent you, but still here are a few things that I have attached in this email too.

    I just want to state that I have become a victim here, my previous migration lawyer didn’t give me proper guidance regarding visa application as being professional, whereas in 2016 all the documentation for visa purposes, my former employer and his wife did it and everything went well.

    After refusal we waited for like a year and expected to get a hearing from AAT soon after we applied, but it took a bit of time and business is no longer under the same employer now. He had his own personal reasons to sell it where I couldn’t say or do anything. My migration agents made mistakes on documentation, my former employer sold and I am the one who became a victim here.

    Here I have attached the menus that we used to have in old faithful cafe back in the days which are still so much better than many other restaurants. Maybe lots of people have misconceptions about cafes like it's just a takeaway shop and sells just coffee and small sandwiches but that's not true, cafes have progressed alot these days and Old faithful cafe had proper seating/ dine in ,changing seasonal menu, at least 2 special menu every fortnight.

    In the letter of refusal of nomination, case officer have mentioned that ''To date no evidence has been provided to show that the nominee is not working in a limited service restaurant''. , I am pretty sure I didn't get a chance to prove myself that I was not working in a limited service restaurant. Neither my previous migration agent informed me to submit any further documents to prove myself at that time that I was not working in a limited service restaurant nor the case officer asked with me. I am not sure and I don't know who to blame but it ruined my future plans.

    …

15. The applicant attached to his email copies of the menu for which he was responsible at his original nominator’s business, the Old Faithful Café, as well as copies of the Department’s approval in 2016 of that employer’s original nomination of the applicant as a Cook and the subsequent refusal of a second nomination of the applicant by that employer in 2018. As noted by the applicant, the second nomination was refused on the basis that the Department delegate who made the decision assessed that the employer’s business was a limited service restaurant (the Tribunal notes that this occupational exclusionary caveat was introduced to the nomination criteria on 18 March 2018 and applied to any applications made after that date, and any applications that were undecided on that date).

16. As noted above, the Tribunal did not receive a response to its original s.359A letter, or a request for an extension of time to provide comments or a response, by 16 August 2021. The Tribunal is satisfied that its s.359A letter of 2 August 2021 was sent to the email address nominated for correspondence by the applicant in the review application (his migration agent, who remains his authorised recipient for correspondence until the Tribunal is notified otherwise), and there is no evidence in the Tribunal’s electronic records that that email was undeliverable or not delivered. The Tribunal acknowledges that the applicant has stated in his letter of 24 August 2021 that his agent did not advise him that he needed to respond to the s.359A letter, but unfortunately, the effect of the Tribunal sending correspondence to the authorised recipient for correspondence nominated by the applicant is that the applicant is deemed to have received that correspondence, whether he actually did so or not: see s.494D(2) of the Act.

17. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the applicant provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the applicant has lost his entitlement to have a hearing: s.360(3).

18. The Tribunal has considered whether to make any further request for comments or a response from the applicant, but – in view of the fact that the Tribunal sent the applicant a s.359A letter about the criterion in dispute and potential adverse information affecting his case, the confined nature of the criterion in dispute, and the fact that the applicant was given until 6 September 2021 to provide any further material to support his case and that he provided a detailed statement and supporting documents by that date – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

20. 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.

21. As set out in the Tribunal’s s.359A letter of 2 August 2021, the Department and Tribunal’s records indicate that the applicant’s employer, All in Endeavours Pty Ltd, made a nomination of the applicant which was refused by the Department.  Although the applicant’s employer sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found that it did not have jurisdiction to review the employer’s refusal decision on 19 March 2021.

22. The Tribunal acknowledges that the actions of the applicant’s employer were outside his control, and that he disagreed that his workplace should have been categorised as a limited service restaurant. The Tribunal further acknowledges that the applicant has now secured employment in his nominated occupation as a Cook in an establishment in regional Victoria and both he and his employer wish him to continue his employment there. However, the terms of cl.457.223(4)(a) do not confer any discretion on the Tribunal to take into account the reasons why the applicant is not the subject of an approved nomination, or any other compassionate or compelling circumstances affecting the applicant’s case.

23. Significantly, the Tribunal is of the view that even if the applicant were able to secure a new nomination from his current employer, this would not satisfy cl.457.223(4)(a).

24. This is because of legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination from another employer, even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined. Moreover, there are no other provisions in the Migration Act or Regulations which would allow the Tribunal to waive the requirements of cl.457.223(4)(a). In the circumstances, it would be futile for the Tribunal to further delay the making of the decision on this application for review.

25. In deciding not to defer making its decision, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.

1. The Tribunal finds that the requirements of cl.457.223(4)(a) are not met by the applicant.

2. 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

3. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

   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.