Mohamad (Migration) - [2018] AATA 865

Mohamad (Migration) [2018] AATA 865 (14 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Andriani Binti Mohamad
Ms Nur Fatihah Binti Maslan
Ms Nur Alia Binti Maslan
Ms Nur Ainna Binti Maslan
CASE NUMBER:  1703004
DIBP REFERENCE(S):  BCC2016/2051389
MEMBER:Danica Buljan
DATE:14 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 14 February 2018 at 4:40pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Remit on basis of pending application – No approved business nomination – Adjournment request – Pending business nomination – Multiple employers as sponsors – Withdrawal of former employer’s application – Request for ministerial intervention
LEGISLATION
Administrative Appeals Tribunal 1975, s 2A
Migration Act 1958, ss 65, 359A, 362A, 363
Migration Regulations 1994, Schedule 2 cl 457.223
CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
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
Minister for Immigration and Citizenship v You [2008] FCA 241
Pasula v Minister for Immigration and Anor (Smith FM) [2010] FMCA 219
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under section 65 of the Migration Act 1958 (‘the Act’).
The applicants applied for the visas on 15 June 2016. At the time the 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 clause 457.223, which requires the first-named applicant (‘the applicant’) to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in subclause 457.223(4), which is set out in the attachment to this decision.
In the present case, specific claims have been made against subclause 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 clause 457.223.
The delegate refused to grant the visas on 17 January 2017 on the basis that the applicant did not meet the requirements of paragraph 457.223(4)(a) because her proposed employer did not have an approved nomination in place for her.
The applicants lodged an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 865
Decision Date: 14 February 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Mohamad concerning his Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute arose from the refusal of his visa application, which was linked to a pending business nomination. Mr. Mohamad sought an adjournment of the AAT proceedings to allow for a new business nomination to be approved, as his former employer had withdrawn their sponsorship application.

The primary legal issue before the Tribunal was whether to affirm the delegate's decision to refuse the visa application, given the circumstances surrounding the sponsorship and the pending nomination. This involved determining whether the applicant had met the requirements for the visa, particularly in light of the withdrawal of the initial sponsorship and the subsequent attempt to secure a new one. The Tribunal also had to consider the applicant's request for an adjournment and the potential for ministerial intervention.

The Tribunal reasoned that the applicant had not satisfied the criteria for the visa at the time of the delegate's decision, as there was no approved business nomination in place. While acknowledging the applicant's efforts to secure a new sponsor, the Tribunal found that the legislative framework did not permit the visa to be granted based on a pending nomination or the prospect of future approval. The Tribunal concluded that the delegate's decision was correct based on the information available at that time and that the circumstances did not warrant a different outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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