Maharjan (Migration)

[2019] AATA 737

Maharjan (Migration) [2019] AATA 737 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manoj Maharjan
Mrs Sarina Shakya Maharjan
Mr Aarush Maharjan

CASE NUMBER:  1824840

DIBP REFERENCE(S):  BCC2016/1256475

MEMBER:Katie Malyon

DATE:5 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2019 at 5:08 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa  – Subclass 457 – standard business sponsor stream – applicant not subject of approved nomination – Federal Circuit Court  remittal – nomination ceased – cook – Migration Amendment Reforms –  issue with representatives  – unique and exceptional circumstances  – case referred to minister –  decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 351, 359, 360, 362, 363

Migration Regulations 1994, Schedule 2, rr 2.72, 2.75(2)(b), cl 457.223(4)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 22 March 2016.

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 (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: either the standard business sponsorship stream in cl.457.223(4) which is set out in the Attachment to this decision or the labour agreement stream contained in cl.457.223(2). In this case, claims have been made against cl.457.223(4) of Schedule 2 to the Regulations: no claims have been made in respect of the alternative stream the labour agreement stream in cl.457.223(2).

4. The delegate refused to grant the visas on 25 July 2016 on the basis that cl.457.223(4)(a) was not met because the first named review applicant, Nepalese national Mr Manoj Maharjan, was not the subject of an approved nomination made by Jaya Kalilka Pty Ltd (the Company).  As noted in the delegate’s decision, a copy of which was provided to the Tribunal, the Company’s nomination was refused by the Department on 21 June 2016.  The Company had previously sponsored the applicants on Subclass 457 visas to enable Mr Maharjan to work with the Company as a Cook from March 2015.

5. Accompanying their application for review to the Tribunal, the applicants provided evidence of lodgement by the Company on 11 August 2016 of a new nomination in respect of Mr Maharjan.

   Background

6. On 31 October 2017, the Tribunal wrote to the applicants’ representative inviting the applicants to attend a hearing on 8 December 2017.  In its invitation, the Tribunal noted that it has considered the material before the Tribunal but is unable to make a favourable decision on this basis. 

7. The representative responded on 7 December 2017 to the Tribunal’s hearing invitation and attached the Response to hearing invitation signed by Mr Maharjan.  The Response form states that:

   Please note that if you select ’No’ in response to the following question, we may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before us.

   The ‘No’ boxes for each of the applicants and the representative were selected, thereby confirming that none of the applicants (or the representative) would attend the hearing. 

8. The representative also stated in his covering email to the Tribunal that he cannot represent the clients due to ‘an issue’ with his registration and provided the correct email address for Mr Maharjan for future Tribunal communications.  In addition - and relevant for the purposes of this decision –the representative attached information that Mr Maharjan had ‘requested’ be forwarded to the Tribunal being a copy of the Department’s approval dated 7 February 2017 of the Company’s nomination lodged 11 August 2016 (referred to above at para [5]) in relation to Mr Maharjan for the position of Cook. 

9. On 8 December 2017, the Tribunal (differently constituted) dismissed the application for review under s.362B(1A)(b) of the Act as the applicants did not appear before the Tribunal for the scheduled hearing. Notice of the initial dismissal of the review application was sent to the representative as well as to the applicants at Mr Maharjan’s email address provided by the representative. In its initial dismissal decision, the Tribunal acknowledges receipt of the Company’s approved nomination in respect of Mr Maharjan and the fact that the review applicants indicated they would not be attending the hearing.

10. On 11 December 2017, a new representative working with the former representative’s business provided a signed Appointment of Representative.  In his covering email submitting the appointment form, the newly appointed representative stated that ‘the applicant wishes to do a submission against the (initial) dismissal which will be sent to you in due course’.  No such submission was received. 

11. Subsequently, on 16 January 2018, the Tribunal confirmed its initial dismissal when the applicants did not seek to have their review application reinstated within 14 days of receiving notice of the Tribunal’s initial dismissal.  

12. The applicants sought judicial review of the Tribunal’s confirmation of dismissal decision. 

13. On 14 August 2018, the matter was remitted by consent from the Federal Circuit Court of Australia to the Tribunal on the basis that the Tribunal’s decision to dismiss the application for review for non-appearance was affected by jurisdictional error in circumstances where the applicants had consented to the Tribunal deciding the review without their appearing before it pursuant to s.360(2)(b) of the Act. In such circumstances, the applicants were not entitled to appear before the Tribunal under s.360(3) and s.363A of the Act and, accordingly, the Tribunal should have proceeded to decide the review on the material before it.

14. The matter was reconstituted to a different Member of the Tribunal on 1 March 2019. 

15. By way of summary and as indicated above, Departmental records indicate that, although the Company was initially unsuccessful on 21 June 2016 in nominating Mr Maharjan for the position of Cook, it lodged a new nomination application on 11 August 2016 which was approved on 7 February 2017.

16. The Tribunal notes that extensive changes were made to the Subclass 457 visa program on 18 March 2018. Accordingly, the Tribunal wrote to Mr Maharjan on 15 March 2019 pursuant to s.359A of the Act. In its letter, the Tribunal observed 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. Having reviewed the applicants’ file, the Tribunal observed that the successful nomination made by the Company in respect of Mr Maharjan expired on 7 February 2018 (that is, 12 months after approval of the nomination on 7 February 2017). This is consistent with the provisions of r.2.75(2)(b) of the Regulations prior to commencement of the Amending Regulations and ‘Items 82 to 85 Amendment to regulation 2.75’ of the Explanatory Statement accompanying the Amending Regulations.

17. In its s.359A letter, the Tribunal noted that following introduction of the Amending Regulations a new nomination application for approval in support of the applicants’ Subclass 457 visa application can no longer be made. It observed that this information is relevant to the current review because one of the requirements for the grant of a Subclass 457 visa is that a nomination of occupation in relation to an applicant must have been approved under s.140GB of the Act. The Tribunal invited the applicants to comment or respond to this information.

18. Mr Maharjan responded to the Tribunal on 28 March 2019.  In his response he states:

    “I am not aware of law changes. I do not understand legal issues. Please refer my case to the Minister because it is beyond my control”.

19. For the following reasons, the Tribunal has concluded that the decision to refuse the applicants’ Subclass 457 visa applications must be affirmed.  However, for the reasons set out below, the Tribunal accepts that this is an appropriate case to refer to the Minister as requested by Mr Maharjan. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether Mr Maharjan is the subject of an approved nomination, made by an approved standard business sponsor, which has not ceased as required by cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

21. As noted above, cl.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.

22. Consistent with the provisions of s.359A of the Act, the Tribunal wrote to the applicants and informed them that the Company’s approved nomination in respect of Mr Maharjan ceased on 7 February 2018 and, following introduction of the Amending Regulations, a nomination in support of the applicants’ Subclass 457 visa can no longer be made. As such, the Tribunal observed that Mr Maharjan could not meet the criteria in cl.457.223(4)(a) of Schedule 2 to the Regulations and, in the circumstances, the decision under review to refuse to grant the applicants Subclass 457 visas must be affirmed.

23. In his response to the Tribunal’s letter, Mr Maharjan stated that he was not aware of these changes to the law changes and, further, that he does not understand legal issues.  In the circumstances, he requested his case be referred to the Minister.

24. Based on the evidence before it, the Tribunal is not satisfied that Mr Maharjan is the subject of an approved nomination. Accordingly, the Tribunal finds that Mr Maharjan does not satisfy cl.457.223(4)(a) of Schedule 2 to the Regulations.

25. For the reasons outlined above, the Tribunal finds that Mr Maharjan has not met the requirements for the standard business sponsor stream in cl.457.223(4) of Schedule 2 to the Regulations. No claims have been made in respect of the labour agreement stream in cl.457.223(2) of Schedule 2 to the Regulations and there is no evidence that Mr Maharjan would be able to satisfy the criteria for that stream.

26. As Mr Maharjan does not satisfy the primary criteria for the grant of a Subclass 457 visa, his wife - the second named applicant Sarina Shakya Maharjan - and the third named applicant, the couple’s 5 year old son Aarush Maharjan, do 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 Maharjan meets the primary requirements for grant of the visa.

    Request for referral to the Minister

27. 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.

28. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use 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. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

29. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added). 

    [1] >

    The circumstances which may be unique or exceptional in this case include, relevantly,:

    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).

30. As noted above, at the time the matter came before a differently constituted Tribunal for consideration in October 2017, it was set down for hearing.  The applicants’ then representative indicated that they would not attend the hearing and provided a signed Response confirming this.  When the applicants did not attend the hearing, the Tribunal initially dismissed and then confirmed dismissal of the application for review of the delegate’s decision to refuse their Subclass 457 visa application which, as noted above, was made on the basis that there was no approved nomination.    

31. Review of Departmental records confirms that although the Company’s nomination in respect of Mr Maharjan was initially refused on 21 June 2016 it was subsequently approved on 7 February 2017.  The Tribunal has also established that the Company held 2 approvals as a standard business sponsor: one approval was granted on 11 February 2015 for one year expiring on 11 February 2016 and the second approval was granted on 15 June 2016 for 5 years expiring on 15 June 2021.  On 2 June 2016, the Company mistakenly lodged another standard business sponsorship application but this was withdrawn on 2 August 2016 after the Department notified the Company that it was already an approved sponsor.  It was because the Company was already an approved sponsor that, on 7 February 2017, the nomination application in respect of nominee Mr Maharjan was approved.  There is no evidence before the Tribunal that the Company withdrew its nomination in respect of Mr Maharjan.

    Is this an appropriate case to refer to the Minister?

32. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.  It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances.  The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.

33. The applicants have not provided any evidence to the Tribunal regarding the basis of their request for referral to the Minister.  However, although the applicants have not provided any details of why the matter should be referred to the Minister, the Tribunal considers the circumstances to be compelling.  In the circumstances of this case, the Tribunal considers that the following factors are highly relevant: 

    1)when the applicants’ former representative forwarded to the Tribunal on 7 December 2017 copy of the Company’s nomination approval dated 7 February 2017, the Tribunal accepts that it would have been possible to make a favourable decision on the papers in the applicants’ favour consistent with s.360(2)(a) of the Act.

    As such, it would have been open to the Tribunal to remit the applicants’ Subclass 457 visa application to the Department with a direction that cl.457.233(4)(a) of Schedule 2 to the Regulations was met and that remaining criteria for grant of the visa should be considered. The Tribunal (differently constituted) did not make such finding. The Tribunal accepts this was an error on its part.

    Since primary visa applicant Mr Maharjan was previously approved as a holder of a Subclass 457 visa on the basis of being a Cook sponsored by the Company, it is highly likely that his Subclass 457 visa application under review would have been approved, as would that of his wife and the couple’s son; and,   

    2)with the passage of time and the commencement of the Amending Regulations, it is now no longer possible for the Company to lodge a nomination under s.140GB of the Act to facilitate grant of a Subclass 457 visa to the applicants. Without such an approved nomination, they cannot meet an essential criterion for grant of the visa in cl.457.223(4)(a) of the Schedule 2 to the Regulations.

    Whilst it would be possible for the applicants to go off-shore to lodge a Subclass 482 visa application following lodgement of a new nomination by the Company, the Tribunal accepts that this would adversely impact the operation of the Company’s business pending Mr Maharjan’s return and would also put the applicants to considerable expense in paying for return flight to Australia as well as interim accommodation costs overseas. 

34. In the opinion of the Tribunal, it is indeed unfortunate that the applicants’ former representative or their newly appointed representative did not more appropriately communicate the applicants’ circumstances to the Tribunal.  In passing, the Tribunal notes that, having reviewed records of the Office of Migration Agents Registration Authority, it is clear that the applicants’ former representative has been a registered migration agent for more than 22 years.  There is no indication on publicly available records that, as stated in the representative’s submission of 7 December 2017, there was an issue with his registration.  It is also unfortunate that the applicants’ newly appointed representative did not, as indicated in his email of 11 December 2017, provide the Tribunal with a timely submission to seek reinstatement of the application for review. 

35. Having regard to the circumstances of the applicants as outlined above, the Tribunal considers that the applicants’ situation involves compellingly unique and exceptional circumstances. The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.

    DECISION

36. 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