Kumar (Migration)

Kumar (Migration) [2021] AATA 986 (1 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Arun Kumar
Mrs Neha
CASE NUMBER:  1819947
HOME AFFAIRS REFERENCE(S):          BCC2017/851979
MEMBER:Katie Malyon
DATE:1 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 01 April 2021 at 11:14 am
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – first related nomination application refused and no application for review made – second application refused and application for review withdrawn – visa subclass repealed and company’s sponsorship expired – wife holds separate visa but applicant unable to travel to lodge application as secondary applicant offshore – regulatory changes in response to COVID-19 travel restrictions – residence, study and work history – unique and exceptional circumstances – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 351, 359A
Migration Regulations 1994 (Cth), rr 2.12, 2.72(10)(f), Schedule 2, cl 457.223(4)(a)
Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Amendment (2021 Measures No 1) Regulations 2021 (Cth)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by 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 (the Act). The applicants applied for the visas on 3 March 2017.
At the time the visa application was lodged, Class UC contained Subclass 457. 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 2 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 stream in cl.457.223, the Labour Agreement stream.
Background
The delegate refused to grant the visas on 25 June 2018 on the basis that cl.457.223(4)(a) was not met because, at the time of the delegate’s decision, the primary applicant - Indian national Mr Arun Kumar - was not the subject of an approved nomination. Mr Kumar had been nominated by S.B. Trading Company Pty Ltd T/A Mughal Palace (the Company) for the position of Cook ANZSCO 391111. A copy of the delegate’s decision refusing the applicants’ Subclass 457 visa applications was provided to the Tribunal.
The Tribunal’s s.359A letter
On 19 February 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which it considered may be the reason, or part of the reason, for affirming the decision under review. Having reviewed available evidence, the Tribunal observed that the Company’s nomination application made in respect of Mr Kumar for the position of Cook was refused by the Department on 25 May 2018. The Tribunal also noted that, although the Company had applied to the Tribunal for review of the Department’s refusal of its nomination, on 18 December 2020 the Company’s nomination review was finalised by the Tribunal as withdrawn.
In its s.359A letter, the Tribunal noted that the Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 was introduced on 18 March 2018 (the Amending Regulations). The Amending Regulations repealed and replaced r.2.72 of the Regulations which sets out the criteria for nominations relating to Subclass 457 visas, and also repealed the Subclass 457 visa. Following introduction of the Amending Regulations, a new application for approval of a nomination in support of Mr Kumar’s Subclass 457 visa application can no longer be made. The Tribunal explained this is relevant because cl.457.223(4)(a) of Schedule 2 to the Regulations requires that a nomination of an occupation in respect of Mr Kumar has been approved and, if it relies on this information, the Tribunal may find that he does not meet this requirement such that the decision under review must be affirmed.
The applicants were represented in relation to the review by their registered migration agent, Mr Komal Khatiwada of Shamser Thapa & Associates. The representative provided a response to the Tribunal’s letter on 5 March 2021.
The representative outlined details of Mr Kumar’s immigration history in Australia including the fact that he had been nominated twice by the Company for the role of Cook and that it was only in respect of refusal of its second nomination on 25 May 2018 that the Company sought review in the Tribunal. This is despite the fact that, in the opinion of the representative, the Company had stronger grounds for seeking review of refusal of its first nomination of 15 December 2017 on the basis the delegate acknowledged there was a position vacant for a full-time Cook with the Company, it was expected to be filled by the nominee but, nonetheless, concluded for reasons unknown that the position was not genuine and therefore did not meet r.2.72(10)(f) of the Regulations. The representative explained that both the Company and Mr Kumar were cognisant of the time that would lapse in seeking review before the Tribunal of that first refusal and the urgency of filling the position. As such, the Company lodged its second nomination with the Department and, after it too was refused, sought review of that decision. This was the review which was withdrawn on 18 December 2020.
Further, the representative observed that the Company’s sponsorship expired on 10 December 2020 and so it withdrew its application for review of the delegate’s refusal of its second nomination. He submits that Mr Kumar is a skilled person who has been caught up in the changes effected by the Amending Regulations. The representative notes Mr Kumar studied Commercial Cookery and Hospitality in Australia and has 6 years’ experience as a Cook working with 3 different restaurants. He is currently working as a Cook at an Indian restaurant, Korner Tapri, in Gungahlin in the ACT. The representative submits that the Company and Mr Kumar have been caught in a legislative trap partly because of the failure of the delegate to holistically decide the first nomination application lodged by the Company which, in his opinion, unnecessarily prolonged the process and lead both the Company and Mr Kumar to be victims of the legislative change.
In addition, the representative notes that the secondary applicant, Mrs Neha, is in Australia as the holder of a Subclass 485 Temporary Graduate visa. And, although Mr Kumar wanted to be included as a secondary applicant in his wife’s Subclass 485 visa application, he was not able to travel offshore to lodge his visa application due to travel restrictions imposed following the COVID-19 pandemic.
By way of conclusion, the representative acknowledges that, in the absence of an approved nomination, the Tribunal’s hands are tied. Therefore, he requests the Tribunal refer the matter to the Minister pursuant to s.351 of the Act.
Having received a response to its s.359A letter, the Tribunal invited the applicants to attend a hearing.
Hearing
On 12 March 2021, Mr Kumar appeared before the Tribunal on behalf of the applicants by way of MS Teams videoconference to give evidence and present arguments. The Tribunal was assisted by an interpreter in the English and Hindi languages. The applicants’ representative also attended the hearing.
During the course of the hearing, Mr Kumar echoed evidence (outlined above at paras [7]– [9]) provided by his representative in the applicants’ response to the Tribunal’s s.359A letter. He confirmed his wife’s Subclass 485 visa is valid until 27 July 2022 but, until such time as travel restrictions are lifted, he is precluded from applying as a secondary applicant whilst he remains in Australia. Mr Kumar confirmed that he started working as a Cook with Korner Tapri restaurant in Gungahlin in December 2020 despite the difficulties for the hospitality industry following the impact of COVID-19.
Invited for his comments, the representative observed that the circumstances presented by Mr Kumar are unique in the sense that he cannot leave Australia to apply to be included as a family member of his wife’s Subclass 485 visa. He reiterated his request that the matter be referred to the Minister.
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. For the reasons set out below, the Tribunal accepts that this is an appropriate case to refer to the Minister as requested by the applicants’ representative.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether Mr Kumar 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.
As noted above, having reviewed the Department’s records, on 19 February 2021 the Tribunal wrote to the applicants pursuant to s.359A of the Act with details of information that is adverse to their application for review. The Tribunal observed that, although the Company applied for review of the Department’s decision of 25 May 2018 to refuse its nomination application, on 18 December 2020 the nomination review was finalised as withdrawn. The Tribunal also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made.
Clause 457.223(4)(a) of Schedule 2 to the Regulations requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. There is no evidence before the Tribunal that there is any approved nomination of an occupation in relation to Mr Kumar. He acknowledged this at the hearing.
Having regard to available evidence, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met by Mr Kumar.
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 stream in cl.457.223 of Schedule 2 to the Regulations, the Labour Agreement stream, and there is no evidence that Mr Kumar would be able to satisfy the specific criteria for that stream.
As Mr Kumar does not satisfy the primary criteria for the grant of a Subclass 457 visa, Mrs Neha does not satisfy the secondary criteria for grant of the visa, in particular, cl.457.321 of Schedule 2 of the Regulations which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. There is no evidence before the Tribunal to indicate that Mrs Neha meets the primary requirements for grant of the visa.
Is this an appropriate case to refer to the Minister?
Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.
The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether the Minister is requested to do so by the applicant, or any other person, or in any other circumstances.
Guidelines have been issued explaining the circumstances in which the Minister may wish to consider exercising the public interest powers under s.351 of the Act.[1] The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where:
·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).
[1] Available at >
The Tribunal takes the issue of recommending referral of any case to the Minister seriously and only after very careful consideration of the matters raised having regard to the Minister’s Guidelines on Ministerial Powers. It notes that the theme running throughout the Minister’s Guidelines is that the case should involve unique or exceptional circumstances. They also indicate cases where it would be inappropriate to bring a matter to the Minister’s attention.
The applicants’ representative has requested that the Tribunal refer this matter to the Minister. The Tribunal has had regard to the applicants’ circumstances including, in particular, the impact of the current COVID-19 pandemic.
The factors which cumulatively engage the Tribunal’s consideration as to whether this is an appropriate case to refer to the Minister are as follows:
·Because Mr Kumar’s Subclass 457 visa application has been refused, he is precluded by s.48 of the Act from being able to apply whilst remaining in Australia as a secondary applicant for inclusion as a family member of Mrs Neha’s Subclass 485 visa. But for the travel restrictions arising from the COVID-19 pandemic, Mr Kumar told the Tribunal he would immediately leave Australia to lodge a secondary Subclass 485 visa application and, thereby, return to join his wife at least until her Subclass 485 visa expires on 27 July 2022.
The Tribunal notes the Commonwealth Government has recognised the inflexibility of the Regulations regarding the Schedule 2 time of decision criteria for a range of visas arising from the impact of travel restrictions in response to COVID-19. The Government introduced the Migration Amendment (2021 Measures No. 1) Regulations 2021 (the 2021 Amending Measures Regulations) which amend the Regulations effective 27 February 2021. The Amending Measures Regulations facilitate, inter-alia, onshore grants of Subclasses 101 (Child), 102 (Adoption), 124 (Distinguished Talent), 300 (Prospective Marriage), 309 (Partner (Provisional)) and 444 (Dependent Child) visas. Prior to the introduction of these amendments, it was necessary for the grant of these visas that the applicant be offshore.
The Explanatory Statement accompanying the 2021 Amending Measures Regulations confirms the instrument makes amendments, inter-alia, to assist certain visa applicants and holders ‘adversely impacted by COVID-19’. In the Tribunal’s opinion this recognises that the current COVID-19 travel restrictions are not only circumstances which are not anticipated by the relevant legislation but also that application of the Regulations leads to unfair results in some cases.
Whilst the Regulations permit an applicant who claims to be a member of a family unit of a person who holds a Subclass 485 visa to apply inside or outside Australia consistent with item 1229(3)(f) of Schedule 1 to the Regulations, the Tribunal acknowledges the 2021 Amending Measures Regulations do not amend r.2.12 of the Regulations to allow non-citizens who are members of the family unit of a person who holds a Subclass 485 Temporary Graduate visa to make their application inside Australia in circumstances where they are barred by s.48 of the Act from doing so.
The Tribunal acknowledges that the 2021 Amending Measures Regulations is merely one of a suite of the Government’s regulatory changes which recognises the adverse impact on some visa applicants of otherwise inflexible provisions in the Regulations in the context of the circumstances presented to applicants by the COVID-19 pandemic. In addition to the 2021 Amending Measures Regulations, the suite of other regulatory changes to date include the:
oMigration Amendment (COVID-19 Concessions) Regulations 2020 which includes amendments to assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who are disadvantaged by the consequences of the COVID-19 pandemic;
oHome Affairs Legislation Amendment (2020 Measures No. 2) Regulations 2020 which provides concessions to certain applicants for Working Holiday visas, restructures and streamlines Distinguished Talent visas and amendments consequential to the Migration Amendment (COVID-19 Concessions) Regulations 2020 for skilled visas; and,
oMigration Amendment (Temporary Graduate Visas) Regulations 2020 which provides: power to specify legislative instrument geographical areas in 2 categories and assess second Subclass 482 visa applications in the Post-Study Work stream; and, clarifies the operation of the concession from the Migration Amendment (COVID-19 Concessions) regulations 2020 by reinstating the need for offshore applicants to have held an eligible Student visa.
It appears to the Tribunal that the circumstances presented by Mr Kumar’s case are unique and exceptional because of the combined impact of s.48 of the Act and the fact that, due to travel restrictions arising from COVID-19, he cannot leave Australia to validly lodge an application as a secondary applicant for inclusion in his wife’s Subclass 485 visa which, as noted above, does not cease until 27 July 2022. There is no suggestion that Australia’s national border closure will be lifted in the near future.
·Mr Kumar has lived in Australia since September 2009. He is a highly skilled Cook who has significant professional qualifications and experience to offer an employer. Together, the accommodation and food services industry has been the hardest hit by the COVID-19 pandemic with a 35% drop in payroll jobs.[2] A strong hospitality industry will contribute to revival of the Australian economy post COVID-19.[3]
During his time in Australia, Mr Kumar has undertaken focused studies in commercial cookery and the hospitality industry including: a Certificate III in Hospitality (Commercial Cookery); a Certificate IV in Hospitality (Commercial Cookery); a Diploma in Hospitality; and, a Diploma of Business.
In addition, he has many years’ experience in the role of Cook across a number of restaurants in Sydney, Melbourne and Canberra including Mughal Palace in Epping, Tandoori Flames in West Footscray and, currently, Korner Tapri, in Gungahlin.
·Mr Kumar has a strong connection with Australia having lived here for more than 12 years.
[2]

Having regard to the circumstances of this case, the Tribunal considers that this situation involves unique or exceptional circumstances. The Tribunal therefore considers it appropriate to request this case be brought to the attention of the Minister for her to consider exercise of her discretionary intervention powers under s.351 of the Act. It notes further documentation may be provided by the applicants in support of their application to the Minister. In this regard, the applicants may wish to provide evidence of Mr Kumar’s current engagement as a Cook at the Korner Tapri restaurant in Gungahlin including recent payslips as well as information about the level and nature of his integration into the Australian community.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Katie Malyon

Member
Attachment - Extract from the Migration Regulations 1994
457.223
…
(4) Standard business sponsorship 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.
oOOo

[2021] AATA 986

1 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies