Mero (Migration)

Mero (Migration) [2017] AATA 2241 (2 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Miklos Mero
CASE NUMBER:  1611827
DIBP REFERENCE(S):  BCC2015/2971449
MEMBER:Saxon Rice
DATE:2 November 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 02 November 2017 at 11:43am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 – Customer service manager – Not subject to an approved nomination – – No approved sponsor – Hearing Adjournment request declined
LEGISLATION
Migration Act 1958, s 65,,359A, 362A, 363(1)(b)
Migration Regulations 1994, Schedule 2, cl.457.223

CASES
Ghori v Minister for Immigration and Citizenship [2011] FCA 759

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

Rathor v MIBP [2014] FCCA 10
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 12 October 2015. 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 alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision.
In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visa on 13 July 2016 on the basis that the applicant did not meet the requirements of paragraph 457.223(4)(a) because his proposed employer, Localpro Pty Ltd (ATF) Localpro Trust (Localpro Pty Ltd) did not have an approved nomination.
The applicant lodged an application for review with the Tribunal on 2 August 2016, and a copy of the primary decision was included with the application for review.
The applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a).
Tribunal hearing
On 12 September 2017, the applicant was invited to appear before the Tribunal at a hearing to be held at 2pm on 28 September 2017 in Brisbane to give evidence and present arguments relating to the issues arising in relation to the decision under review.
At 4.57pm on 19 September 2017, the Tribunal was advised that the applicant had appointed a new representative on 15 September 2017. The applicant’s new representative requested access to documents under the Freedom of Information Act 1982 and requested that the matter be adjourned until such time as she received all documentation as follows:
We understand that the Applicant has received an invitation to attend a hearing in regard to his Review Application which is to be held on 29 September 2017.
Given we have very recently received instructions on this matter and that we require the information and documents outlined in the enclosed Freedom of Information Request, we kindly request that the Applicant’s hearing be adjourned until such a time that we have received all documentation.
By agreeing to our Request for an adjournment, the Applicant will be afforded procedural fairness so as to address the grounds for refusal of his Subclass 457 Temporary Work (Skilled) visa application and further we will be in a position to obtain relevant instructions and properly advise the Applicant of his prospects.
In order to facilitate the timely consideration of the applicant’s review, the Tribunal advised the applicant’s representative and her firm of the ability to make a request for access to the file under section 362A of the Act by telephone on 22 and 26 September 2017 and the Tribunal would then consider the applicant’s request for adjournment. As at 27 September 2017, the Tribunal had not received any request for access to the Tribunal file under section 362A of the Act.
Accordingly, on 27 September 2017, the Tribunal advised the applicant’s representative as follows:
On 12 September 2017 we sent a letter inviting you to attend a hearing on 28 September 2017 to give evidence and present arguments relating to the issues arising in your case.
The Tribunal refers to your request dated 19 September 2017 for a postponement of the hearing scheduled in this matter for 28 September 2017 on the basis of your recent appointment as representative in this matter. However, although the Tribunal has considered your request, it has decided not to grant your request for the following reasons.
The Tribunal has a legal responsibility under section 2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick.
The applicant lodged his application for review with the Tribunal on 2 August 2016 and a copy of the primary decision record accompanied that application. The Tribunal also notes that it wrote to the applicant on 12 September 2017 through his then nominated representative inviting him to a hearing on Thursday 28 September 2017 at 2pm.
The Tribunal notes your advice that you were appointed as the applicant’s representative on 15 September 2017. However, the Tribunal considers that there has been ample notice of the date of the hearing and that you have had sufficient time to make appropriate arrangements to facilitate the conduct of the scheduled hearing. It is the expectation of the Tribunal that appropriate administrative steps are taken by authorised representatives to ensure that the conduct of an application for review proceeds in a timely manner. This includes making a request for access to the file under section 362A of the Migration Act 1958. The Tribunal notes that two Case Officers suggested this course of action to you and your firm on 22 and 26 September 2017 but to date, the Tribunal has not received this request.
In addition, the Tribunal observes that the central issue in the application for review is that the applicant’s application for a subclass 457 visa is not supported by an approved nomination, a matter that the Tribunal can discuss with the applicant at the hearing, whether or not you have had access to the file prior to the hearing.
As a result, on the basis of the information currently before it, the Tribunal has decided not to grant your request for a postponement as it is satisfied that the matter can proceed on 28 September 2017.
On 27 September 2017 at 3.18pm, the applicant’s representative provided the Tribunal with a completed “Consent to release personal information” form; a copy of the decision in Minister for Immigration and Citizenship v Li[1] as reference for the reasonableness of any request for an adjournment and a submission again seeking an adjournment of the applicant’s matter as follows:
[1] [2013] HCA 18 (8 May 2013)
We note that you telephoned the writer this morning (following her return from overseas also this morning), stating that the Member had requested the Applicant to lodge a Consent to release personal information – MR Division and albeit that a request under the Freedom of Information Act 1982 had been lodged with the AAT immediately after we were instructed to act.
…
You advised that the Member in effect required the Applicant to progress the request for access to his documents under Section 362A as this would facilitate the timely release of his file.
You further advised that the Member was prepared to agree to a one week adjournment of proceedings.
You were advised that as the writer had just returned from overseas (after being absent from the office for ten days), that the Member was urged to grant the Applicant a reasonable period of time so that his interests can be best represented before the Tribunal.
This is consistent with the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 – 8 May 2013 – B68/2012 where the High Court granted the leave of appeal from the Federal Court of Australia and concluded that the failure of the Migration Review Tribunal in that instance to grant an adjournment to the applicant was unreasonable and rendered the Tribunal’s refusal of her application invalid.
The decision is noteworthy as it is an occasion where the court has found unreasonableness on the part of the decision-maker. More importantly, the judgments in Li set out the High Court’s vision of unreasonableness as a ground of review.
It is submitted that it is neither fair nor just nor economical for the Applicant to be required to represent his interests before the Tribunal without having access to the documentation which is before the Tribunal and in circumstances where it appears on the face of the Applicant’s preliminary instructions that his former agent had failed to act professionally, had failed to heed instructions of the sponsoring employer, and indeed may have been negligent in the carriage of the matter generally.
In the circumstances, and while we understand that the Tribunal is subject to scheduling demands, the Tribunal has an overarching obligation to act reasonably and to accord the Applicant procedural fairness.
In the circumstances, we request that the Tribunal hold this matter in abeyance until the Applicant is provided with a full copy of his documentation in accordance with Section 362A and so that he can then best be represented before the Tribunal.
In this regard, the Tribunal should note that the sponsoring employer has also instructed the writer to act on its behalf and to lodge a new business nomination.
As the Tribunal is aware, if the Applicant was the subject of an approved nomination by a standard business sponsor (which the sponsoring employer is), in relation to an occupation specified for the purpose of the Migration Regulations 1994, then the Applicant will be enabled to meet clause 457.223(4)(a).
In the circumstances, we look forward to the grant of the adjournment and on the basis that it is reasonable to do so.
The Tribunal also notes that the applicant’s representative made the following additional statements in her covering email to this submission on 27 September 2017 (errors in original):
We refer to the attached letter advising that the Tribunal will not grant an adjournment and proposes to proceed with the hearing on the 28 September 2017 and although we have not received a copy of the file as requested and further, because of this have not been enabled to best represent the interests of the review applicant.
As advised to you on Tuesday, when we spoke, the writer had just returned from overseas after an absence from the office for some 10 days, attending and speaking at an international conference.
You advised on Tuesday, that although a request had been lodged under the Freedom of Information Act 1982, that the Member had advised you that the request should be lodged under section 362A as this would facilitate the timely release of the file.
As advised to you when we spoke on Tuesday, the applicant has unfortunately been poorly advised by his former agent and there is a real concern that that former agent has been negligent in the carriage of each of the nomination and visa applications relating to the applicant.
As we understand it, this matter has a complex history however unless we have a copy of the file, which is the subject of a request under the Freedom of Information Act 1982, we are not enabled to act.
Following our telephone discussion and as requested by the Member we prepared the request under section 362A but before we could send it we received the attached letter denying any extension of time.
We consider that in failing to grant the applicant an adjournment, the Tribunal has failed to accord the applicant procedural fairness and natural justice.
For the Tribunal to conclude that the applicant has had more than adequate time since he was notified of the hearing, to engage the writer to act and to expect the writer to be abreast of the case when the Tribunal has not provided access to the file is unreasonable.
Further, it does not accord with the recent High Court case of Li which is attached and which we trust the Member is aware of.
We urge the Tribunal to act reasonably and in accordance with procedural fairness and natural justice otherwise, any adverse decision of the Tribunal is likely to be the subject of jurisdictional error and judicial review.
As the Member is aware, the Tribunal is required to act fairly, justly and economically.
It is submitted that this requires the Tribunal to postpone the hearing to enable the applicant to best represent his interests , including two enable him to meet clause 457.223 (4)(a) of the Migration Regulations 1994 or at the very least that a new business nomination be lodged with the sponsoring employer.
The applicant also proposes to lodge a complaint in regard to the carriage of his Visa related matters by the former agent, who on the face of the applicant’s preliminary instructions appears to have been negligent.
In the circumstances, the Tribunal is again requested to grant an extension of time to enable the applicant to best represent his interests and accordingly we also recall attach the letter dated the 26 September 2017 enclosing the Consent to release personal information, which was to have been sent to you earlier this morning but before we could do so, the Tribunal has decided to refuse to grant any extension of time.
We look forward to the Tribunal’s urgent response to the request for the extension of time.
We also look forward to receipt of the applicant’s file.
The Tribunal Registry gave consideration to the applicant’s “Consent to release personal information” form (M14 Form) and on the basis that the applicant’s representative referred to, amongst other things, her intention of lodging a 362A request in her correspondence, the Registry considered that the applicant “substantially complied” with the process for requesting access to written information under section 362A of the Act although the correct form (M16 Form) was not submitted to the Tribunal. On this basis, the Tribunal provided the applicant’s representative with a copy of the material before the Tribunal by email at 4.54pm on 27 September 2017.
The Tribunal also gave consideration to the second request for an adjournment and advised the applicant’s representative as follows:
The Tribunal refers to its earlier correspondence dated 27 September 2017 and your response of the same date requesting a postponement of the hearing in this matter scheduled for 28 September 2017.
The Tribunal notes your advice that you have taken instructions to represent the applicant in this matter whilst overseas, and that the applicant was poorly represented by his former migration agent. However, the Tribunal observes that you have not provided any evidence to support these claims, despite a request from the Tribunal for you to put anything you wished the Tribunal to take into account in writing.
In addition, on 22 September 2017 the Tribunal telephoned and informed your office that a request under section 362A of the Migration Act 1958 (‘the Act’) needs to be submitted in order to process your request for information expeditiously, and that this should be done as soon as possible. The Tribunal also indicated that once it received this written request it may grant an extension of no longer than a week. Notably, when the Tribunal issued its correspondence to you this morning, the Tribunal had not received a request from you under section 362A of the Act.
In any event, the Tribunal observes that according to the primary decision record the applicant submitted with his application for review on 2 August 2016, his nominating employer, Localpro Pty Ltd (ATF) Localpro Trust, had its nomination application refused on 13 July 2016. The applicant’s Temporary Business Entry (Class UC) Subclass 457 visa was refused on the same date because he did not have an approved nomination for the purposes of paragraph 457.223(4)(a) of the Migration Regulations 1994 (‘the Regulations’).
Importantly, the applicant has been aware of the reasons for the refusal of the visa application for approximately 14 months. In addition, from the correspondence you have forwarded to the Tribunal today, it appears that the applicant’s nominating employer has not taken recent steps in 2017 to lodge a new business nomination application with the Department.
As advised to you this morning, the issue before the Tribunal is whether the applicant meets the requirements of paragraph 457.223(4)(a) of the Regulations and in your response this afternoon you have referred to the High Court decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 in relation to the exercise of the Tribunal’s discretion under paragraph 363(1)(b) of the Act.
Accordingly, based on the information currently before it, the Tribunal considers that there would be considerable advantage to these issues being discussed at the scheduled hearing on 28 September 2017, particularly in relation to the circumstances that would warrant the Tribunal exercising its statutory discretion in the applicant’s favour.
The Tribunal notes that there is no legislative requirement for it to proceed to a decision in this matter on the date the hearing is held and, without pre-determining this issue, it is willing to discuss with you at the hearing what additional time the applicant may require to provide evidence to support the application for review.
Accordingly, given the evidence before it, and for the above reasons, your request for the hearing to be postponed is refused.
Exercise of discretion – prior to the Tribunal hearing
Taking into consideration the submissions made by the applicant’s representative, the Tribunal decided to proceed with the hearing scheduled for 2pm on 28 September 2017 for the following reasons.
As outlined above, the Tribunal notes that in this case the applicant provided a copy of the primary decision record relating to the refusal of his subclass 457 visa application dated 13 July 2016 with the application for review he lodged on 2 August 2016. Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the refusal of his subclass 457 visa for more than 15 months at the time of decision.
The Tribunal has also had regard to the applicant’s change of representative during the application for review.
Firstly, the applicant has been consistently represented throughout his applications to the Department and his review with the Tribunal. It was after the applicant received his invitation to a Tribunal hearing that he decided to change representatives. Prior to the Tribunal hearing, the information before the Tribunal was that the applicant had changed representatives; his new representative took instructions from him while overseas and/or knowing that she was going to be overseas until a matter of days before the Tribunal hearing; the applicant’s representative had not lodged a request for access to information under section 362A of the Act by 27 September 2017, one day prior to the Tribunal hearing and after the Tribunal had been in contact with the representative and her firm on two occasions prior. The Tribunal’s paramount consideration is its legal responsibility under section 2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick.

The Tribunal acknowledges that the applicant’s representative requested an adjournment on multiple occasions prior to the commencement of the Tribunal hearing. However, the reasons given for the request for adjournment related to her having taken instructions from her client while overseas (or as subsequently claimed, immediately prior to her departure) and a claim of possible negligence on the part of the applicant’s former representative, neither of which were substantiated with evidence.
The Tribunal notes that the applicant’s ‘Appointment of Representative Appointment of Authorised Recipient – MR Division’ form was signed by the applicant on 15 September 2017, three days after the applicant was invited to appear before the Tribunal on 28 September 2017. The Tribunal also notes the applicant’s representative’s claim to have been overseas from 17-26 September 2017; she departured two days after her appointment as representative and had knowledge of the applicant’s scheduled Tribunal hearing on 28 September 2017.
As outlined above, the applicant’s representative provided no other reasons for her request for adjournment. On this basis, the Tribunal proceeded with the hearing scheduled for 2pm on 28 September 2017.
However, the Tribunal observed that the applicant and his representative reside in Melbourne and as such, the Tribunal Registry contacted the applicant’s representative on 28 September 2017 at 12.43pm in order to obtain a telephone number with which to contact the applicant and his representative at the time of the scheduled hearing. The applicant’s representative verbally advised the Tribunal Officer that she had competing commitments and other cases on that day and as such, she would not be available to attend the Tribunal hearing. The applicant’s representative instructed the Tribunal Officer to advise the Member of her schedule and stated that the applicant was flying to Brisbane and would be attending the Tribunal hearing in person. The Tribunal Officer advised the applicant’s representative that while her concerns had been noted, it was not appropriate to verbally relay messages and recommended she write to the Tribunal regarding her circumstances.
At 2.24pm on 28 September 2017 (after the commencement of the Tribunal hearing) the Tribunal received a further submission from the applicant’s representative as follows:
On 27 September 2017 at 4.53pm (when the writer was not available) the Tribunal emailed to our office the refusal to grant the second request for an extension of time and confirmed that the hearing had been scheduled for 2pm on 28 September 2017, and albeit that the writer was not available to attend the hearing given her other commitments.
In this regard, we refer to and repeat the following advices that were provided to [the Tribunal Officer] in respect of her 2 telephone calls to the writer on 26 September 2017 and again at about 12noon on 28 September 2017 that:
(a) The writer was overseas from 17 September 2017 to 26 September 2017.
(b) The 2 adjournments were requested on the basis that given then writer’s absence from overseas, and her other pre-scheduled commitments including another hearing, that the writer was not available to proceed with the scheduled hearing on 28 September 2017.
(c) In order for the writer to be able to fairly and justly represent the interests of the review applicant, it was essential that he be afforded the opportunity for the writer to be abreast of the visa history, including the basis upon which the application for review was before the Tribunal.
(d) On 18 September 2017 we lodged with the Tribunal the Appointment of Representative and Request for Access to documents under Freedom of Information Act 1982 duly signed by the review applicant and dated 15 September 2017 (being the date the writer was engaged to act).
(e) In accordance with the Member’s request on 26 September 2017 on the morning of 27 September 2017, we emailed to the Tribunal the letter dated 26 September 2017 requesting the adjournment of the hearing, the Consent to release personal information and a copy of the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 – 8 May 2013 – B68/2012.
(f) On 27 September 2017 at 4.53pm the Tribunal emailed to the writer’s office the refusal to grant the extension of time and documents in accordance with the Section 362A request (which at the time of this letter, the writer has not been able to review as the writer has been involved in another hearing which was pre-scheduled some months ago).
(g) At about 12.30pm the writer received a call from [the Tribunal Officer] advising that the Member wanted the writer’s direct telephone number so that the writer could be available for the hearing scheduled at 2pm, and albeit that the writer had made clear to [the Tribunal Officer] on both 26 September 2017 and again on 28 September 2017 an adjournment was required as she was not able to be available on 28 September 2017 given her commitments and lack of knowledge of the case.
In the circumstances, this letter is express concern in regard to the manner in which the Member has chosen to conduct these proceedings, and the failure of the Member to respond to a most reasonable request for an extension of time.
It is entirely unsatisfactory for the Member to in effect demand that the writer be available for a scheduled hearing at 2pm today and to totally disregard the reasonable basis upon which the extension of time has been requested.
We are instructed that the review applicant has travelled to Brisbane with the view to attending the hearing to again request the Member to grant an extension of time so that he can be properly represented before the Tribunal and given that it would be fair and just that he be afforded this opportunity.
Otherwise, the review applicant will be denied an adjournment in circumstances where it is fair and reasonable to do so.
Further, he will be denied the opportunity to best advocate his case, as he is not in a position to so advocate given that he has no understanding of the law and is not in a position to advocate effectively on his own behalf.
It is submitted that if the Member insists on this matter proceeding without enabling the review applicant to be proper represented, that the Member is acting unreasonably and in the face overwhelming facts which should enable the Member to grant the adjournment.
This submission was not received by the Presiding Member until after the conclusion of the Tribunal hearing.
The Tribunal notes that in this submission, the applicant’s representative claims, at point (b) that “The 2 adjournments were requested on the basis that given then writer’s absence from overseas, and her other pre-scheduled commitments including another hearing, that the writer was not available to proceed with the scheduled hearing on 28 September 2017” and at point (g) “…albeit that the writer had made clear to Paris Ball [the Tribunal Officer] on both 26 September 2017 and again on 28 September 2017 an adjournment was required as she was not able to be available on 28 September 2017 given her commitments and lack of knowledge of the case”. However, as clearly outlined above, at no stage did the applicant’s representative advise the Tribunal in writing that she was unable to attend the applicant’s scheduled Tribunal hearing due to other commitments, or another hearing that had been “pre-scheduled some months ago”.
The Tribunal notes that the Tribunal Case Officers made detailed records of their conversations with the applicant’s representative (and the Tribunal has no reason to doubt the accuracy of those records) and while it is aware that the applicant’s representative advised the Tribunal Officer verbally of her inability to attend the Tribunal hearing just prior to its commencement on 28 September 2017, this information was never conveyed to the Tribunal by the applicant’s representative in writing at any stage prior.
As outlined above, on 19 September 2017, the Tribunal was advised that the applicant had appointed a new representative on 15 September 2017. Given the applicant’s representative was about to depart overseas at this point in time, it would have been appropriate for her to advise the Tribunal that she would be away until 26 September 2017 and, as she claims, that she was not able to attend the scheduled hearing on 28 September 2017 due to other pre-scheduled commitments including another hearing that she said had been arranged some months prior. However, even in the correspondence from the applicant’s representative dated 27 September 2017, she still did not mention this information. The Tribunal’s expectation is that representatives will facilitate the conduct of the hearing and it appears evident to the Tribunal that the applicant’s representative knew on the day she accepted authorisation as the applicant’s representative that she would not be available on the day of the scheduled hearing yet she did not advise the Tribunal of this information in any of her correspondence until after the hearing had commenced.
The Tribunal also notes that the applicant’s representative objected to being telephoned by the Tribunal in an attempt to obtain a telephone number that would enable her participation in the hearing and that she was of the view that this totally disregarded “the reasonable basis upon which the extension of time has been requested”. However, the reason the Tribunal called her for this information is because at no stage was the Tribunal aware that she was not available to attend the hearing and therefore, assumed she would be attending by telephone given her location was in Melbourne.
In addition, the Tribunal notes the applicant’s representative objected to being sent correspondence and information at times when she said she was “unavailable”, including the information requested under s.362A. However, the Tribunal notes that it attempted to facilitate the representative’s early and swift access to the information in accordance with s.362A on 22 and 26 September 2017 by calling her office and recommending this course of action. However, it was not until 3.18pm on 27 September 2017 when the Tribunal received the request for information in accordance with s.362A and it then sent the applicant’s representative the required information, less than two hours after she made the request. The Tribunal also notes that there is no legal requirement that the recipient is available to receive information sent by the Tribunal. Indeed, it would be impossible for the Tribunal to be aware of and monitor the availability of all of the recipients with which it corresponds.
The Tribunal has had regard to the the decision in Rathor v MIBP[2] in which the Tribunal refused a request to reschedule the hearing in circumstances where the applicant’s representative had advised the Tribunal that he was unavailable to participate in the hearing on the scheduled date. In that case, the court found that the Tribunal’s reasons for refusing to reschedule the hearing were not unreasonable in the sense described in Li. Nevertheless, the exercise of its discretion miscarried because it did not give weight to the statutory code of procedure binding the Tribunal of which the hearing opportunity is a critical part. The flaw in its explanation was that it led to the perception that the hearing opportunity is an empty gesture. The tribunal’s reasoning that its refusal to reschedule the hearing was justified because the attendance of the applicant’s representative of choice did not matter was but a small step from concluding that the hearing itself did not matter.
[2] FCCA 10 [2014]
However, in the present circumstances, as outlined above in the correspondence and submissions from the applicant’s representative, the Tribunal was not in possession of any written information relating to the applicant’s representative’s schedule or competing commitments at the time of the applicant’s scheduled hearing until after the hearing had commenced, despite the Tribunal Officer advising the applicant’s representative on multiple occasions to put forward her reasons for seeking an adjournment in writing. Indeed, according to the applicant’s representative, she was aware that she was unavailable at the time of the applicant’s hearing from the time she took instructions from him given her schedule was set some months ago but despite this, at no stage did she raise this with the Tribunal as a reason she was seeking an adjournment of the Tribunal hearing.
As noted above, given the Tribunal was not aware of the unavailability of the applicant’s representative at the time of the hearing, the Tribunal Registry contacted her over an hour before the scheduled start of the hearing in order to facilitate her participation in the process by telephone. It was only at this stage that the Tribunal was verbally made aware that the applicant’s representative would not be available but she advised the Tribunal Officer that the applicant had flown from Melbourne to Brisbane for the hearing. In these circumstances, the Tribunal notes that the applicant did not require an interpreter and he understood the issues and was able to answer the Tribunal’s questions. The Tribunal also informed the applicant at the outset of the hearing that given his representative was not available to attend the hearing, the Tribunal would not proceed to a decision on the day of the hearing. The Tribunal also advised the applicant that it would write to him and provide him with time following the hearing to respond to information under s.359A of the Act in order to enable the applicant to consider the information with his representative. This also provided the applicant and his representative an opportunity to provide further information to the Tribunal.
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
The Tribunal notes that at the Tribunal hearing, the applicant requested an adjournment of the hearing in order to return at another time with his representative. In response to a question from the Tribunal, the applicant indicated that he did not know how long he wanted to seek an adjournment for and told the Tribunal that his sponsoring employer had instructed their representative to lodge a new nomination application for the role of Customer Service Manager. The Tribunal gave consideration to the applicant’s request and noted its previous correspondence with his representative and decided not to adjourn the review at the commencement of the hearing on the basis of the information before it.
However, on the basis that the applicant did not have his representative present at the hearing, the Tribunal advised the applicant that it would not be making a decision in relation to his review immediately following the hearing and would provide the applicant and his representative with time after the Tribunal hearing to provide further information.
The applicant told the Tribunal that he was still working for his sponsoring employer, Localpro Pty Ltd, as a Customer Service Manager and he had been in that role for nearly two years.
The applicant advised the Tribunal that as far as he was aware, Localpro Pty Ltd had not had a new nomination approved by the Department. The applicant told the Tribunal that he understood that three nominations had been lodged with the Department in his favour by Localpro Pty Ltd and he thought there may have been three refusals but he was not sure. On a number of occasions, the applicant told the Tribunal that he was unaware of details of his applications because he did not know what his former migration agent had done. However, the applicant told the Tribunal that his second nomination was lodged for the role of Managing Director which was the wrong category.
The applicant told the Tribunal that he did not have any other sponsoring employers or any other nomination applications lodged with the Department.
The Tribunal asked the applicant why he had not submitted any evidence of any new nomination applications for the purpose of r.457.223(4)(a) to the Tribunal since his last refusal from the Department in 2016. The applicant told the Tribunal that he did not have the best representative or the best advice but that this new application should be successful.
The Tribunal noted that the issue for it to consider is that the applicant’s 457 visa was refused on 13 July 2016 because he was not the subject of an approved business nomination by an approved sponsor whose business nomination has not ceased, as required by paragraph 457.223(4)(a) and that in September 2017, there is no evidence that he is the subject of an approved nomination and invited the applicant to comment. The applicant told the Tribunal that he is not a lawyer and he was not aware that he could not argue for his nomination before the Tribunal. The applicant also stated that his former migration agent was negligent.
The Tribunal commented upon the applicant’s oral evidence that his sponsoring employer had not yet lodged a new nomination application with the Department and asked the applicant why the Tribunal should wait for any new nomination to be lodged. The applicant said the Tribunal should wait in order to be fair and just and for him to be represented better. He said his company had gone through substantial growth and he believed that this was because he was working hard.
Tribunal invitation to comment on or respond to information
On 28 September 2017 the Tribunal sent the applicant an invitation under section 359A to comment on or respond to information relating to departmental records of his nomination applications and refusals and current applications.
Specifically, the Tribunal invited the applicant to comment on or respond to the fact that on three occasions, a business nomination in his favour had been refused and that there was no evidence as at the date of the Tribunal correspondence that he was the subject of an approved business nomination that has not ceased at the time of decision as required by paragraph 457.223(4)(a) the Regulations. This letter also stated that the applicant had until 12 October 2017 to provide his comments or response.
On 11 October 2017, the applicant’s representative submitted a ‘preliminary response’ to the information provided by the Tribunal. The applicant’s representative made the following submission (errors in original):
…
We refer to our letter to you dated 28 September 2017 and note that despite the change of agent, the Member has now on two occasions refused to grant an extension of time in order for Mr Mero to be able to be best represented before the Tribunal.
In this regard, we note that Mr Mero travelled to Brisbane on day of the hearing. As a result, the Member apparently undertook the hearing in the absence of the writer and on the same day sent to Mr Mero the letter dated 28 September 2017 being the Invitation to Comment on or Response to Information.
As the Tribunal is aware, subclause 457.223(4)(8) requires the Applicant to be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations or alternatively, that at the very least he provide evidence that he meets clause 457.223 (4)(a), namely that the new business nomination was lodged by the sponsoring employer.
It is submitted that as there is a current Standard Business Sponsorship, that if the Tribunal enables the sponsoring employer to lodge a new business nomination, nominating the Applicant for the occupation of Customer Service Manager that the Applicant meets the requirements of clause 457.223 (4) and regulation 2.75 (1) which “applies to nomination of an occupation in which the holder of, or an Applicant or proposed Applicant for, a subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation”.
If the Tribunal does not afford the sponsoring employer the opportunity to lodge a new nomination application as submitted, then the Tribunal will compound the significant detriment that the sponsoring employer (and the Applicant) have already suffered by virtue of the actions/or inactions of the former agent at No Borders Migration.
In this regard, and as the Tribunal is aware, the two requests for an adjournment or extension of time were made on the basis that the writer was either overseas or unavailable to attend the hearing on 28 September 2017 due to prior commitments (namely another hearing in Melbourne). Further, the writer was concerned that she not able to best represent the Applicant (and the sponsoring employers) interests, as the writer does not have full access to the files of No Border Migration, the former agent.
Although the Tribunal has provided a copy of its file under section 362A, to date, and despite repeated requests of the former agent including from the writer, the sponsoring employer, and the Applicant, the former agent has failed to provide a full copy of all applications for and on behalf of the sponsoring employer and any related documents.
It is submitted that the former agent has breached the Code of Conduct for Registered Migration Agents (the Code) as summarised hereinafter. However, as the writer does not have full access to the former agent’s files, this Response to Invitation to Comment on or Response to Information must of necessity be only a preliminary response.
It is submitted that if a just and fair result is to be achieved in this case, the Tribunal must accord procedural fairness to both the Applicant (and the sponsoring employer) and take into account the significant detriment that each party has suffered by virtue of the manner in which the former agent No Borders Migration have acted.
…

The applicant’s representative then set out a ‘Qualified Summary Chronology of Events’ which she states is based on the instructions received from the sponsoring employer and the applicant in respect of the former agent’s carriage of each of the sponsorship and the three refused nomination applications. The Tribunal does not intend to replicate the detail of that chronology in its decision but notes that it can be found on the Tribunal file.
The applicant’s representative states that the chronology demonstrates that the applicant’s former agent, breached Part 2 of the Code, in particular, 2.3 and 2.8 as well as Part 10 and as a result, “each of the applicant and sponsoring employer had suffered significant detriment”.
In the response dated 11 October 2017 from the applicant’s representative, the Tribunal observes that the applicant’s representative, apart from making comments and a range of claims about the applicant’s former representative, did not refute the information about the applicant’s three nomination applications that were refused by the Department on 21 December 2015, 13 July 2016 and 15 September 2016.
Indeed, the applicant’s representative stated that no new nomination application has been lodged with the Department as at 11 October 2017. Nor has she provided any further information to suggest otherwise at the time of this decision. Therefore, more than twelve months after his last nomination refusal, there is little in the evidence before the Tribunal that the applicant is the subject of an approved business nomination that has not ceased at the time of decision as required by paragraph 457.223(4)(a) the Regulations.
For these reasons the requirements of cl.457.223(4)(a) are not met.
Other matters
Preliminary response
While noting that the applicant’s representative referred to her response as a ‘preliminary response’ which would suggest that another response was forthcoming, no other submissions were received by the Tribunal prior to the expiry of the period allowed for response on 12 October 2017. The Tribunal also notes that no request for an extension of time to provide a response was lodged with the Tribunal and nothing has been received since 12 October 2017. Given the evidence currently before the Tribunal, it has proceeded on the basis of the information and claims set out in the submission dated 11 October 2017 as a response to the Tribunal’s invitation under s.359(A) of the Act.
Claim of negligence and incompetence of former agent
The Tribunal has taken into account the fact that at the applicant’s representative has made a number of claims in relation to negligence and the failures of the of the applicant’s former agent according to the Code of Conduct for Registered Migration Agents and that at the Tribunal hearing on 28 September 2017, the applicant expressed dissatisfaction with the advice and conduct of his former migration agent.
In assessing the applicant’s claims the Tribunal has further had regard to the general principles of agency in Australian law[3], which indicate that the relationship between principal and agent can arise in several ways, including by agreement, the conduct of the parties or the operation of law. In particular, the Courts have held in the immigration context that the acts or omissions of an agent who an applicant has engaged to do certain things on their behalf are not circumstances that can generally said to be beyond a person’s control.[4]
[3] See The Laws of Australia, Legal Online, Geoff Masel (1993 – 2001)
[4] See Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22 ( 5 February 1987) at [18]
On the basis of the details set out in the applicant’s online visa application form provided to the Department, and the online application to the Tribunal on 2 August 2016, the Tribunal considers the general principles of agency to be applicable to the relationship between the applicant and his former migration agent in this case.
Notwithstanding the concerns expressed by the applicant and his representative, the applicant is not the subject of an approved nomination lodged by an approved sponsor at the time of the Tribunal’s decision. The Tribunal also notes that, whilst the applicant may have been disappointed with his then migration agent, upon receipt of his invitation to the Tribunal hearing, he subsequently appointed a new representative on 15 September 2017 to advise her in relation to the application for review. The claims made by the applicant’s current representative against his former representative may demonstrate a lack of understanding of the Migration Act and the Migration Regulations by the former representative but notably, neither the applicant nor his current representative has suggested that the former migration agent he appointed to assist him with his applications to the Department and his application for review acted outside the authority that he had conferred upon them.
The Tribunal notes that the applicant expressed dissatisfaction with the outcomes of his applications but he did not dispute those outcomes. In addition, neither the applicant nor his representative has indicated that they have lodged a complaint with the Migration Agents Registration Authority, or commenced or pursued any other proceedings or avenues of complaint, in relation to his former migration agent’s conduct.
As a result, the Tribunal is not satisfied that the fact that the applicant (and his sponsoring employer) relied upon his former migration agent’s advice in relation to his applications, necessarily demonstrates the type of the professional incompetence or negligence the Courts have generally required before they will excuse an applicant for the actions of their agent.
In any event, even if the Tribunal accepted that there was an issue with the conduct of the applicant’s former migration agent, it may be relevant to whether it exercises its discretion as discussed below but such matters do not provide any basis upon which the Tribunal can disregard the requirements of the Act and the Regulations. Notably, the wording of paragraph 457.223(4)(a) does not provide the Tribunal with any discretion to take these factors into account in order to find in the applicant’s favour.
Exercise of discretion – at time of Tribunal decision
As previously noted, prior to and following the Tribunal hearing, the applicant’s representative submitted that the Tribunal should be ‘reasonable’ and exercise its discretion to adjourn the review in the applicant’s favour pending a nomination application that has not yet been lodged with the Department. As a result, the Tribunal has considered whether the applicant’s claims provided a basis for it to adjourn the review in the applicant’s favour under subsection 363(1)(b) of the Act prior to a decision.
In considering whether to exercise its discretion under subsection 363(1)(b) of the Act the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[5] and Manna v Minister for Immigration and Citizenship[6] where the Courts have held that it is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[7] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[8] which also considered this issue.
[5] [2002] FCA 617
[6] [2012] FMCA 28
[7] [2013] HCA 18 (8 May 2013)
[8] [2014] FCAFC 1 (4 February 2014)
As outlined above, in response to the Tribunal’s invitation to comment or respond to information in accordance with section 359A of the Act, the applicant’s representative does not dispute the information before the Tribunal and agrees that the applicant has lodged three applications for a Subclass 457 – Temporary (Skilled) visa and on each occasion, those applications have been refused as the nomination of the sponsoring employer was not approved. He was advised of his last refusal more than one year ago and despite a change in representative, his sponsoring employer has not lodged a new nomination. As noted previously, this has occurred in circumstances where the applicant had the benefit of a registered migration agent to assist him to submit evidence that would support his claims and his application for review.
The Tribunal notes the submission from the applicant’s representative that “the Tribunal enable the sponsoring employer to lodge a new business nomination, nominating the Applicant for the position of Customer Service Manager and in light of the detriment suffered by the sponsoring employer (and the Applicant) to date”. However, as outlined above at (51), as at the date of this decision, the Tribunal has not been advised that any new nomination has been lodged on behalf of the applicant and the sponsoring employer does not need the permission of the Tribunal to do so.
The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[9], Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process”.
[9] [2011] FCA 759 at [22]
In the present matter, the evidence before the Tribunal is that the applicant has had three nominations refused over a period of some twelve months (the last refusal being approximately twelve months ago), he does not have a new nomination currently before the Department and the negligence claims against the applicant’s former agent are not particularly strong. As a consequence, there is little in the evidence to suggest that another business nomination application in favour of the applicant is likely to be determined by the Department in the reasonably foreseeable future.
The current request for an adjournment on the basis of an outcome of a business nomination that has not been lodged, is highly speculative. In these circumstances, the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to have relevance to the exercise of its discretion to adjourn the review in the applicant’s favour.
Accordingly, for the reasons set out above, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review in the particular circumstances of this case.
As a result, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.
CONCLUSION
Accordingly, based on the findings made above, the Tribunal has no alternative but to affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Saxon Rice
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.

[2017] AATA 2241

2 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Jurisdiction

Statutory Construction

Appeal