Mertekis (Migration)

[2017] AATA 453

Mertekis (Migration) [2017] AATA 453 (28 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dimitrios Mertekis

CASE NUMBER:  1512390

DIBP REFERENCE(S):  BCC2015/825282

MEMBER:Miriam Holmes

DATE:28 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2017 at 8:11am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Transport Company Manager – No approved nomination – First nomination refused – Pending sponsorship and nomination applications – Request to delay tribunal decision refused

LEGISLATION

Migration Act 1958, ss 65, 140GB

Migration Regulations 1994, Schedule 2, cl 457.223, r 2.72

CASES

Chen v Minister for Immigration and Border Protection [2016] FCCA 2351

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014)
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013)
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for 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).

2. The applicant applied for the visa on 13 March 2015.

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 alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visa on 22 August 2015 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. The applicant appeared before the Tribunal on 24 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

6. The applicant was represented in relation to the review by his registered migration agent, Ms Dimopoulos.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

9. 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.

10. The Tribunal made the following findings based on the oral evidence of the applicant, the delegate’s decision record provided by the applicant, the written and oral submissions of the representative;

    ·On 13 March 2015 the applicant made an application for a Temporary Work (Skilled) (subclass 457) visa.

    ·Prior to 13 July 2015 Pavlos Transport Pty Ltd lodged a nomination application for approval of the nominated occupation of Transport Company Manager in relation to the applicant. On 13 July 2015 this first nomination application by Pavlos Transport Pty Ltd was refused.

    ·On 13 July 2015 the Department wrote to the applicant and he was given an opportunity to provide evidence that he was the subject of an approved nomination or to withdraw the visa application.

    ·On 9 August 2015 Pavlos Transport Pty Ltd lodged a second nomination application for the nominated occupation of Transport Company Manager in relation to the applicant.

    ·On 20 August 2015 the Department refused the second nomination application by Pavlos Transport Pty Ltd on the basis that the delegate was not satisfied that the position associated with the nominated occupation was genuine (see r.2.72(10)(f)).

    ·On 22 August 2015 the Department made a decision to refuse the visa application lodged by the applicant. It was refused on the ground that the applicant did not hold an approved nomination as required by cl.457.223(4)(a).

    ·In September 2015 Pavlos Transport Pty Ltd made an application for review to the Tribunal seeking review of the decision to refuse the second nomination application.

    ·On 9 September 2015 the applicant made an application for review of the decision to refuse his Temporary Business Entry (Class UC)(subclass 457) visa application .

    ·On 28 February 2017 Pavlos Transport Pty Ltd withdrew their review application in relation to the second nomination application.

    ·On 17 March 2017 Ohrid Transport Pty Ltd lodged with the Department a standard business sponsorship application and a nomination application for the occupation of transport company manager in respect of the applicant.

    ·As at the date of the hearing the applicant was not identified in a nomination application for a nominated occupation that had been approved by the Department.

11. On the evidence, available, the Tribunal is not satisfied that a nomination of an occupation in relation to the applicant has been approved under s140GB of the Act.

    Request for the Tribunal to defer making a decision.

12. On 17 March 2017 and 21 March 2017 the applicant requested that the hearing on 24 March 2017 be postponed until a department decision is made in relation to the most recent nomination application by Ohrid Transport Pty Ltd. The Tribunal declined these postponement requests. At the hearing on24 March 2017 the applicant requested that the Tribunal defer making a decision in the review application until the Department had determined the nomination application by Ohrid Transport Pty Ltd.

13. In the written submissions the representative noted that the applicant was only recently informed that Pavlos Transport Pty Ltd no longer wished to sponsor the applicant in the nominated position, however he had found another employer willing to sponsor him. The applicant has waited many months for a hearing in relation to the nomination application. The representative submitted that it was a reasonable request to defer the hearing of the sc457 review application given the circumstances relating to her client “who has at all times acted diligently and spent considerable time and incurred substantial expense in relation to his employment offer and residency status.”

14. At the hearing, the Tribunal discussed with the applicant his migration history and his current circumstances and his request for the Tribunal to defer making a decision until the third nomination application had been determined.

15. The Tribunal made the following findings regarding the applicant’s migration history based on the applicant’s oral evidence. The applicant first arrived in Australia in September 2012 on a tourist visa. The tourist visa was valid for three months. Whilst in Australia the applicant applied for a student visa. After the tourist visa expired after three months, the applicant remained in Australia on a bridging visa for 18 months. He had no work rights on his visas.  The student visa application was refused. The applicant left Australia in October 2014.

16. In December 2014 the applicant returned to Australia on a tourist visa that was valid until 15 March 2015. This visa had no work rights. On 13 March 2015 the applicant made this current application for a subclass 457 visa. The applicant has been on a bridging visa since 16 March 2015 and he has had no work rights attached to his visa.

17. The applicant has never worked in Australia. He states that he has survived in Australia over recent years by living with his best friend who covers his living expenses.

18. The applicant was advised that Pavlos Tranpsort Pty Ltd was no longer willing to sponsor him as the business owner was divorcing his wife and was going to sell the business. He was advised this about three or four months ago and so he started making efforts to find another employer. The applicant has never worked for Pavlos Transport Pty Ltd as has no work rights on his bridging visa. The Tribunal asked if the applicant had taken any steps since August 2015 when the visa application was refused to secure an alternative employer to sponsor him and he stated that he had not approached any other employer, he thought it was alright until four months ago.

19. The applicant has identified a new potential employer, Ohrid Tranpsort Pty Ltd but he has not undertaken any work for the employer as he has no work rights.

20. The Tribunal notes that a subclass 457 application can be made both onshore and offshore. The Tribunal asked the applicant why he could not go overseas back to his home country and wait for the sponsorship and nomination application to be assessed and make a sc457 visa application offshore. He replied that he cannot do that and he would wait in Australia. Further, he stated that a lot of time had passed and he was waiting for the review application processes to be completed.

21. The representative stated that she estimated that it will take two or three months to process the sponsorship application and the nomination application, although she does not know how long it will take the Department to assess the applications. She noted that given the nature of the applications they would not be processed as a matter of priority.

22. At the hearing, the Tribunal queried why it should grant a postponement noting that the purpose of the subclass 457 visa program is to assist employers and to provide overseas workers in occupations where there are skilled shortages. In that context, the Tribunal noted that it may not be minded to grant the deferment request as the applicant has had no work rights since he arrived in December 2014, he has not worked, he has already been the subject of two unsuccessful nomination applications, the applicant has been on notice since August 2015 that he did not have an approved nomination and he has recently lodged a third nomination application. In response, the applicant stated that he was waited for a long time and he has been waiting for Pavlos Transport Pty Ltd to hire him and he thought he would be employed by them. He has met with Ohrid Transport Pty Ltd and they are happy to hire him and he expects to commence work with them shortly. The Tribunal noted that before the applicant could work for the new nominator – the sponsorship application, nomination application and visa application would all need to be approved.  In response, the applicant stated that he did ask the Department to give him work rights when he lodged his student visa application but this request was denied.

23. At the hearing the representative made various submissions. The representative commented that the applicant has made attempts to obtain employment and the nomination and visa have been refused. The applicant understood that he had a right to go to the Tribunal and to seek merits review and he had no control over the process and to resolve the matter. He wanted the opportunity for the Tribunal to consider the matter afresh and he had hoped that the sc457 visa would be granted if the nomination was approved by the Tribunal. When the applicant was notified that the sponsor was not going to proceed, the applicant took action to find a new employer and sponsor. The representative stated that the new nomination paperwork has been prepared and the new employer is a much larger business. The representative noted that the nomination application by Pavlos Transport Pty Ltd was refused in part because of the size of the business and the Department was not satisfied that the position was genuine. When she lodged the nomination application she advised the Department that the nomination application is decision ready. In relation to the applicant being on notice since August 2015 of the reasons for the refusal, the representative submitted that the applicant has a right seek merits review and has a right to wait for the outcome of the review. She referred to recent departmental approaches to the assessment of the criteria in r.2.72(10)(f) and the size of organisations and the difficulty in advising clients in this regard. She submitted that the applicant wished to pursue the review application as there was a genuine prospect that he would be successful as they wanted the Tribunal to reconsider whether the position nominated by Pavlos Transport Pty Ltd was genuine. She submitted the applicant has a right to wait in Australia pending the review.

24. The Tribunal discussed with the applicant the concern that a person could be the subject of many nomination applications and it could be a never ending process of nomination applications, and in this instance there was now a sponsorship and nomination application yet to be approved. The Tribunal commented that it had already delayed listing the matter until the related nomination review application had been determined. In response, the applicant commented that once he arrived in Australia he started looking for work and to see how this could be done. He stated that he has always followed the system and the legal requirements and not harmed anyone or done anything bad.

25. The Tribunal has considered the deferment request and has determined not to defer making a decision to wait the outcome of the latest sponsorship application and nomination application by Ohrid Transport Pty Ltd.

26. The Tribunal had regard to various judgements. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[^1] and Manna v Minister for Immigration and Citizenship[^2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5].

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

27. In Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, the Tribunal adjourned its decision pending the outcome of fresh business sponsorship and nomination applications being lodged with the Department. Subsequently, the Department made the decision to refuse the sponsorship application. The Tribunal sent a s359A letter to the review applicants. In response to the s.359A letter, the applicants informed the Tribunal that the employer had lodged an application for review of the Department’s decision to refuse the sponsorship application. Despite the pending review application related to the refusal of the sponsorship application, the Tribunal made a decision affirming the delegate’s decision to refuse the visa on the basis that the visa applicant’s proposed employer had not been approved as a business sponsor and there was no approved business nomination as required by 457.233(4). As part of its reasoning, the Court noted that the Business (Long Stay) visa subclass only requires that the requisite business sponsorship and nomination be in place at the time of decision, but not necessarily earlier. The Court noted that a potential outcome of the regulatory scheme is that a person may apply for a Business (Long Stay) visa based on the expectation of the approved sponsorship, and in the event that the requisite sponsorship does not eventuate the applicant may seek to make a further application which cites a different corporate entity as the sponsor. The Court noted that in those circumstances, there may be produced the situation whereby an applicant may remain within the immigration system by the expedient of continuing to seek sponsorship from different businesses, even though such applications may be continuously refused as the various levels of the administrative process. The Court concluded there was no error of law apparent or manifest in the conduct of the Tribunal. The Tribunal was entitled to exercise its discretion to withhold waiting and was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.

28. This approach was endorsed in Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Court held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the recent decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.

29. The Tribunal considers that the applicant has had a fair and reasonable opportunity to obtain an approved nomination for the purposes of meeting cl.457.223(4)(a). The applicant has been the subject of two nomination applications by Pavlos Transport Pty Ltd. Both nomination applications were unsuccessful. The applicant has been on notice since August 2015 that he did not meet an essential criterion, namely being the subject of an approved nomination. The applicant has not taken any action to meet this criterion, other than to wait for the outcome of the related review application by Pavlos Tranpsort Pty Ltd in relation to the second nomination application. He has only recently taken action to identify another employer and a third nomination application and sponsorship application were made on 17 March 2017, ten days after the applicant was invited to a hearing in relation to his review application regarding the refusal of the visa application. The applicant told the Tribunal that he became aware three to four months ago that Pavlos Transport Pty Ltd would no longer sponsor him, however there is little evidence of the efforts taken since then to secure another employer. The Tribunal appreciates that a person would seek to wait the outcome of the nomination refusal review application. However, it is open to a visa applicant to seek an alternative sponsor and nominator in order to meet the visa requirements. It appears the applicant took no steps in this regard since August 2015 but simply waited to for the outcome of the related review nomination review application. Now that the related nomination refusal review application has been withdrawn, the Tribunal considers it is appropriate to resolve the visa refusal review application.

30. The Tribunal deferred determining this visa refusal review application until the resolution of the nomination refusal review application. The Tribunal considers that it was a reasonable, appropriate and fair approach to delay resolving the visa refusal review application until the  resolution of the nomination refusal review application was determined. However, the nomination refusal review application has come to an end as the employer withdrew the review application. In the circumstances, the Tribunal considers that it is now appropriate and should, in accordance with its statutory objectives, now resolve the visa refusal review application.

1. In relation to the pending sponsorship and nomination applications, the Act provides that there are two applications that must be successfully made by a prospective employer before a visa application for a subclass 457 visa can be granted. Firstly, the prospective employer must be approved as a standard business sponsor and secondly an application by the employer for nomination of an occupation in relation to the applicant has to be approved. The nomination application can only be approved if the employer is an approved standard business sponsor. The applicant has been on notice for in excess of 18 months that his visa application was unsuccessful because there was no approved nomination. The representative estimates that it may take two to three months for these pending applications to be determined. In the Tribunal’s experience it is matter for the department to determine when it will consider such applications and it can take many months for the Department to consider and determine such applications.

2. The Tribunal considers that the applicant is in essence requesting the Tribunal to defer making a decision in relation to the review application for an unknown and unspecified period. It is unknown when the department will consider the sponsorship application and then subsequent nomination application. The department process may take many months to consider each of the applications. As noted above, the sponsorship application must be granted and only then can the nomination application be considered by the Department. The Tribunal is mindful that there are numerous requirements set out in r.2.72 of the Regulations that must be met by an employer before a nomination application may be approved. The outcome of the pending sponsorship application and pending nomination application is uncertain – the sponsorship application and /or nomination application may be refused or granted. The Tribunal is mindful that the pending sponsorship application may be refused and consequently the pending nomination application would be unsuccessful. Alternatively, the sponsorship application may be granted but the nomination application may be refused. If either of these events occur the applicant will remain unable to meet the requirement in cl.457.223(4)(a).

3. Further, the Tribunal is mindful that the sc457 visa scheme is a migration scheme for the benefit of Australian employers to employ overseas skilled workers to fill skills shortages in Australia. The applicant has now been in Australia for an extended period since March 2015 pending his sc457 visa application and he has undertaken no work in that period. It is open to the applicant to apply from offshore for a sc457 visa, once the pending employer applications are resolved and if they are successfully granted. The applicant has given no cogent reason why he could not return to his home country in Greece and wait for the outcome of the various applications and then apply for a subclass 457 visa from offshore.

4. The Tribunal does not consider it is appropriate to defer making a decision in this review application for an unknown and indefinite period. After considering the circumstances of this case, including when the sc457 visa application was lodged, the period the applicant has been on notice to provide information – in particular evidence of an approved nomination, the period of time the review application has been pending, that there is no evidence of any active steps by the applicant to secure a sponsor and nomination approval until recently after the former sponsor withdrew the related nomination refusal review application, having regard to the purpose of the sc457 visa migration scheme, the possibility that the matter may remain pending for many months awaiting the department deliberations of the employer sponsorship and nomination applications and after having regard to the objective of the Tribunal set out in s.2A of the Administrative Appeals Tribunal Act, the Tribunal declines to defer the hearing and declines to defer making a decision in relation to this review application.

5. After consideration of the matters above, the Tribunal declines to defer making a decision in relation to the review application.

6. On the evidence, available, the Tribunal is not satisfied that a nomination of an occupation in relation to the applicant has been approved under s140GB of the Act. Therefore, the Tribunal is not satisfied that the applicant meets the requirements in cl.457.223(4)(a).

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

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

   Miriam Holmes
   Senior 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.