Lokuwithana (Migration)

[2018] AATA 1115

Lokuwithana (Migration) [2018] AATA 1115 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chamitha Lokuwithana
Mr Santhul Lokuwithana
Mrs Thisari Chamilani Sirimanne

CASE NUMBER:  1705063

DIBP REFERENCE(S):  BCC2012/811060 BCC2013/594756

MEMBER:Denise Connolly

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2018 at 1:12pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Whether applicant is subject of an approved nomination – No evidence before the Tribunal that applicant is subject of an approved nomination - Previous decision of Tribunal affected by jurisdictional error – Tribunal did not have jurisdiction to invite applicant to hearing – Tribunal relied on evidence obtained outside of jurisdiction – Matter remitted by Federal Circuit Court

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994, Schedule 2, cl 457.223(4)

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. 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).

2. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. 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.

3. The applicants applied for the visas on 13 July 2012. The delegate refused to grant the visas on 25 October 2012 on the basis that cl.457.223(4)(d) was not met by the first named applicant (the applicant) because the delegate concluded that the position associated with the nominated occupation is not a genuine position.

4. The applicants applied to the Tribunal (then known as the Migration Review Tribunal) on 13 November 2012 for review of the delegate’s decision. On 12 February 2014 the Tribunal (differently constituted) invited the applicants under s.359(2) to provide information in writing as to whether the applicant is the subject of an approved nomination and meets the requirements of cl.457.223(4)(a), that is, to demonstrate that he was the subject of an approved nomination that had not ceased. In deciding to send this invitation the Tribunal member relied on a case note that a nomination application of which the applicant was the subject was refused on 2 November 2012. The response was due on 7 March 2014. The applicant sought an extension of time which was granted. The response was then due on 7 April 2014. The applicants’ then registered migration agent lodged an Appointment of Representative form and a Request for Access to Written Material on 3 April 2014. The representative subsequently telephoned the Tribunal, on 9 April 2014, and advised that as she had only been recently appointed she needed access to the documents. She was advised that the s.359(2) request was now overdue. The representative sought another extension of time but was advised that only one extension may be granted. She was advised however that the Tribunal would take into account any documents to be provided before making its decision. No further evidence was provided and on 9 April 2014 the Tribunal affirmed the decision not to grant the visas on the basis that cl.457.223(4)(a) was not met. The decision record was sent to the applicant and the Department.

5. While finalising the Request for Access to Written Material the Tribunal case officer realised that information that had been provided to the Tribunal member, indicating that a nomination application of which the applicant was the subject was refused on 2 November 2012, was incorrect. On 10 April 2014 the case officer informed the Tribunal member that the applicant was in fact the subject of a current approved nomination. The Tribunal member decided to reopen the case. On 11 April 2014 the Tribunal invited the applicant, under s.359(2), to provide information that cl.457.223(4)(d) was met. The applicant provided documentation and submissions. On 20 May 2014 the Tribunal invited the applicants to appear at a hearing scheduled for 17 June 2014. In the meantime the Tribunal was waiting for the Department to send to it the relevant sponsorship and nomination files. On 16 June 2014 the Tribunal contacted the Department noting that it had sent the wrong files. The Tribunal also informed the applicants that it would be postponing the hearing as it did not have the relevant files. On 30 June 2014 the Tribunal invited the applicant to appear at a hearing scheduled for 1 August 2014. The Tribunal also requested that the applicant provide evidence that cl.457.223(4)(a) was met. That information was not provided. The Tribunal made an oral decision at the hearing to affirm the delegate’s decision not to grant the visas. The Tribunal recorded in written reasons dated 11 August 2014 that, as at the date of the hearing, the applicant had not provided evidence he was the subject of an approved nomination which had not ceased. It is noted that the approved nomination referred to above had ceased on 28 June 2014.

6. The applicants sought judicial review of that decision and on 2 February 2017 the Federal Circuit Court held that the decision of 1 August 2014, made orally by the Tribunal, was affected by jurisdictional error. The Court held that the Tribunal did not have jurisdiction to invite the applicant to attend a hearing, and by holding a hearing the evidence and/or submissions given by the applicant at that hearing was not evidence permitted to be given under the Act. The Court also held that the Tribunal was not entitled to take that evidence into account; and the findings of fact made and the reasoning engaged in by the Tribunal as a consequence of holding that hearing were made without jurisdiction.

7. The matter has been remitted back to the Tribunal to be determined according to law.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In this case the applicant is the owner and Managing Director of the sponsoring business, Prime Group (Int) Pty Ltd ATF Lokuwithana Family Trust (Prime Group).

2. On 7 April 2017 the Tribunal (differently constituted) wrote to the applicants to inform them that it was seeking submissions from the Department as to whether the Tribunal, as reconstituted to determine this review, has the power to invite the applicants to a hearing. The Department informed the Tribunal that it would not be making submissions. The member held a Directions hearing on 12 May 2017 directing that the applicants provide by 14 June 2017 submissions as to whether the Tribunal, as reconstituted on remittal to determine the review, has the power to invite the applicants to a hearing. The applicants were also directed to provide evidence of any pending nomination and its particulars and information relating to consideration of the criteria in cl.457.223(4)(d). The applicant’s new representative responded on 14 June 2017 advising that new sponsorship and nomination applications had been lodged (the nominated occupation being Sales and Marketing Manager), and that the applicant intended to pursue the review and be given an opportunity to demonstrate that the position is genuine. The representative subsequently made a Request for Access to Written Material which was provided on 28 June 2017. The new representative sought further time to provide a response and this was agreed to. The applicant had until 21 July 2017 to respond. However no further information was provided by the applicants.

3. On 7 August 2017 the Tribunal sent to the applicants a combined s.359A/s.359(2) invitation setting out the particulars of information it considered would be, subject to the applicants’ response, the reason, or part of the reason, for affirming the decision.  Essentially the particulars of the information relate to the sponsorship and nomination applications lodged by Prime Group, as follows:

   ·On 13 July 2012 the applicant lodged an application for a Subclass 457 - Temporary Work (Skilled) visa.

   ·On 18 July 2012 Prime Group was approved as a standard business sponsor for 3 years from 18 July 2012 to 18 July 2015.

   ·On 18 July 2012 the Department also approved a business nomination application lodged by Prime Group for a ‘Sales and Marketing Manager’ (ANZSCO 131112) of which the applicant was the subject. This approval was valid for a period of 12 months until 18 July 2013 and had ceased as at the date of the letter.

   ·On 22 April 2013 Prime Group lodged another application for the approval of a business nomination of which the applicant was the nominee. However, on this occasion the application was in respect of a ‘Contract Administrator’ (ANZSCO Code 511111).

   ·On 28 June 2013 the Department approved this business nomination application in the applicant’s favour. This approval was also valid for a period of 12 months until 28 June 2014 and therefore had also ceased as at the date of the letter.

   ·On 25 October 2012 the Department refused the application for a Subclass 457 - Temporary Work (Skilled) visa on the basis that the applicant did not meet the requirements of cl.457.223(4)(d). In particular, the delegate found that:

   ·   The nominated occupation of ‘Sales and Marketing Manager’ (ANZSCO Code 131112) was not necessary to the operations of Prime Group;

   ·   The majority of the duties outlined in the position description corresponded to those of a ‘Retail Manager’ (ANZSCO Code 142111); and

   · The delegate was not satisfied that the position associated with the nominated occupation was genuine and that it met the requirements of cl.457.223(4)(d)(ii).

   ·On 14 June 2017 Prime Group lodged an application for approval as a standard business sponsor. On the same date, it also lodged an application for the approval of a third business nomination nominating the applicant.

   ·On 4 July 2017 the Department made a decision to refuse to approve Prime Group as a standard business sponsor. There is no record before the Tribunal that Prime Group has lodged an application for review with the Tribunal in respect of that decision.

   ·As a consequence, the Department also finalised the business nomination application lodged by Prime Group as ‘otherwise finalised’. There is also no record before the Tribunal that Prime Group has lodged an application for review with the Tribunal in respect of this decision.

   ·On 24 July 2017 Prime Group lodged a third application for approval as a standard business sponsor.

   ·On the same date, Prime Group also lodged an application for the approval of a fourth business nomination nominating the applicant for a ‘Sales and Marketing Manager’ (ANZSCO Code 131112) with a proposed annual salary of $82,000.

   ·Both of these applications were before the Department for processing as at the date of the invitation.

   ·In addition, the ASIC ‘Historical Company Extract for Prime Group (Int) Pty Ltd’ indicates the following:

   ·   Prime Group (Int) Pty Ltd was first registered with ASIC on 17 October 2011 as an Australian proprietary company limited by shares and it continues to be so registered;

   ·   Mr Chamitha Lokuwithana (the applicant) is the sole director and he is also the company secretary for Prime Group (Int) Pty Ltd;

   ·   Mr Chamitha Lokuwithana and Mrs Thisari Chamilani Sirimanne (the second named applicant) are the current and only shareholders in Prime Group (Int) Pty Ltd.

4. The letter explained that, based on the information before the Tribunal, it may find that the applicant is not the subject of an approved nomination under section 140GB of the Act that has not ceased, as required by cl.457.223(4)(a) of the Regulations. It explained that unless the applicant is the subject of an approved nomination made by an approved business sponsor, the approval of which has not ceased at the time of decision, the applicant will not meet the requirements of cl.457.223(4)(a). In addition the applicant was informed, on the basis of the ASIC records and the information before the Tribunal regarding the various business nominations lodged by Prime Group for different ANZSCO occupations since 2012, the Tribunal may not be satisfied that the position associated with the nominated occupation is genuine, as required by cl.457.223(4)(d)(ii). The letter explained that if the Tribunal made these findings it would affirm the delegate’s decision to refuse the visas.

5. The applicants were also invited to provide information confirming that the applicant was the subject of an approved nomination that had not ceased, and information relating to the nominated position of Sales and Marketing Manager.

6. The response to the invitation was due on 21 August 2017. The invitation was sent to the last address provided in connection with the review, and advised that, if the comments or response (including the information requested under s.359(2)) were not provided in writing by 21 August 2017, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 15 August 2017 the applicant’s representative forwarded to the Tribunal an email he had sent to the applicant advising that he would do nothing further unless the applicant emailed the representative. No further response was provided to the Tribunal.

8. Over the course of the next few months the Tribunal exchanged correspondence with the Department regarding the outcome of Prime Group’s application on 24 July 2017 for approval as a standard business sponsor. On 7 February 2018 the Department advised the Tribunal that it had refused the application for approval as a standard business sponsor and consequently the nomination application lodged on the same date was ‘otherwise finalised’.

9. On 8 February 2018 the Tribunal sent another s.359A invitation essentially setting out the information provided in its s.359A/s.359(2)invitation of 7 August 2017 relating to Prime Group’s various sponsorship and nomination applications. However it also included the Department’s information that Prime Group’s application on 24 July 2017 for approval as a standard business sponsor was refused on 7 February 2018, and that the nomination application lodged on the same date was ‘otherwise finalised’. It also provided information that there was no record before the Tribunal that Prime Group had lodged an application for review of the decision to refuse it approval as a standard business sponsor. The letter explained that the information was relevant because the Tribunal may find that the applicant is not the subject of an approved nomination that has not ceased, as required by cl.457.223(4)(a), and if it made that finding it would affirm the decision under review.

10. The response to the invitation was due on 22 February 2018. The applicant did not respond.

11. The Tribunal is satisfied the invitation was sent to the authorised recipient at the last address provided in connection with the review. The letter of 8 February 2018 referred to the combined invitation that was sent on 7 August 2017, which was also sent to the last address provided in connection with the review. It noted that the representative on 15 August 2017 forwarded a copy of an email he had sent to the applicant. However it also noted that the representative did not seek an extension of time. The letter of 8 February 2018 advised that, as the applicant did not provide the comments or response, or the information requested within the prescribed period, by 21 August 2017, and did not ask for an extension of time within the prescribed period, the applicants have lost any entitlement they might have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. The applicants have not provided comments within the prescribed period and no extension has been granted. In these circumstances, regardless of any entitlement to a hearing that may have existed following the quashing of the Tribunal decision and remittal for consideration, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. For these reasons the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

Requirement for an approved nomination

1. 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.

2. The Tribunal finds that on 24 July 2017 Prime Group lodged an application for approval as a standard business sponsor. On the same date, Prime Group also lodged an application for nomination approval nominating the applicant for a ‘Sales and Marketing Manager’ (ANZSCO Code 131112).

3. On the basis of information provided by the Department the Tribunal finds that on 7 February 2018 the Department refused the application for approval as a standard business sponsor and consequently the nomination application lodged on the same date was ‘otherwise finalised’.

4. There is no other evidence before the Tribunal that the applicant is the subject of an approved nomination that has not ceased.

5. There is no evidence before the Tribunal that a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act, and the nomination was made by a person who was a standard business sponsor at the time the nomination was approved, and the approval of the nomination has not ceased as provided for in regulation 2.75.

6. For these reasons the requirements of cl.457.223(4)(a) are not met.

7. 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

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

Denise Connolly
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

1. 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.

   …

2. 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.