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

1. 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’).

2. 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.

3. 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.

4. 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.

5. The applicants lodged an application for review with the Tribunal on 21 February 2017[1], and a copy of the primary decision was included with this application.[2] The applicant was represented in relation to the review by a registered migration agent.[3]

   [1]     AAT Case file 1703004 (T1), f.13

   [2]     T1, f.3-6

   [3]     T1, f.12

6. The Tribunal has before it the departmental file[4] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[5]

   [4]     D1 - Departmental file, BCC2016/2051389,  folio numbered 1-154

   [5]     AAT Case file 1703004, folio numbered 1-72

7. Given the issues raised by the application for review, the Tribunal considers it useful to set out the following chronology.

   The Pre-Hearing Processing of the Application for Review

8. On 22 February 2017[6] the applicant’s then representative provided copies of departmental acknowledgment letters (dated 21 February 2017[7]) relating to the lodgment of applications  for approval as a standard business sponsor and of a business nomination by RM Traders Australia Pty Ltd.  

   [6]     T1, f.14

   [7]     T1, f.8-11

9. At 10:20am on 20 June 2017[8] the Tribunal emailed the applicant (through her then representative) an invitation to appear before it at 9:30am on 17 July 2017 to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

   [8]     T1, f.20-26

10. At 12:45pm on 20 June 2017[9] the applicant’s current representative emailed the Tribunal an ‘Appointment of Representative / Appointment of Authorised Recipient – MR Division’ (Form MR5) (dated 19 June 2017[10]) appointing her current representative, also a registered migration agent, as her representative / authorised recipient for the purposes of the review. 

    [9]     T1, f.29

    [10]    T1, f.28

11. On 20 June 2017 the applicant also made a request under section 362A of the Act for access to her departmental and Tribunal files.[11]

    [11]    T1, f.27

12. On Friday 14 July 2017[12] the current representative informed the Tribunal that Le Montage Pty Ltd had lodged a new business nomination application with the Department on this date. The representative advised that this company was one of Australia’s largest banquet and events centres with over 200 full-time employees and hundreds of part-time and casual workers. The representative also stated that the applicant had already commenced employment with this company in Sydney. Therefore, she requested that the hearing be arranged in Sydney or via video / telephone link.

    [12]    T1, f.32-48

13. In addition, the representative included the following evidence in support of the review:

    ·An acknowledgment letter (dated 14 July 2017[13]) regarding the lodgment of an application for approval of a business nomination by Le Montage Pty Ltd in favour of the applicant;

    ·An organisational chart[14] for Curzon Hall / Navarra Venues, one of the venues operated by Le Montage Pty Ltd, identifying the applicant as a chef in its kitchen; and

    ·A contract of employment (dated 12 July 2017[15]) between the applicant and Curzon Hall / Navarra Venues to employ her as a full-time chef.

    [13]    T1, f.39-40

    [14]    T1, f.38

    [15]    T1, f.32-37

14. At 8:51 am on Monday 17 July 2017 the applicant’s representative emailed to the Tribunal a copy of the applicant’s ‘Certificate III in Hospitality (Commercial Cookery)’[16], ‘Diploma of Hospitality’[17] and her IELTS[18] test report for the results she had achieved on 28 March 2015.[19]

    [16]    T1, f.53-54

    [17]    T1, f.51-52

    [18]    IELTS: International English Language Testing System

    [19]    T1, f.50

    The Tribunal Hearing

15. The applicant appeared before the Tribunal by telephone on 17 July 2017 to give evidence and present arguments in relation to the application for review. The applicants were also represented in relation to the review by their current registered migration agent.

16. At the hearing the Tribunal explained the issue in dispute to the applicant, including the requirements of paragraph 457.223(4)(a) and the Regulations. It also provided the applicant with the details regarding the legal scope of its discretion to adjourn the review and any deferral of its decision in this matter.

17. The applicant gave oral evidence that her visa application had been refused in January 2017 because her original sponsor, Amfah (Aust) Pty Ltd, did not have an approved business nomination in place for her. In particular the applicant stated that the business nomination application lodged by Amfah (Aust) Pty Ltd was refused in June 2016.

18. In addition, the applicant also told the Tribunal that her new sponsoring employer, Le Montage Pty Ltd, was an approved standard business sponsor and that it had lodged a business nomination application in her favour on 14 July 2017, which was still pending at the time of the hearing. In terms of the timing of this business nomination application, the applicant acknowledged it had been lodged approximately 6 months after her original visa application was refused by the delegate, approximately 5 months after the application for review was made, and approximately 3 weeks after the Tribunal hearing invitation letter was sent to her on 20 June 2017.

19. In terms of its discretion under paragraph 363(1)(b) to adjourn the review, the Tribunal noted that, whilst it was required to be reasonable regarding the exercise of this power, it was not required to adjourn the review indefinitely to await the outcome of a pending business nomination application before the Department. The Tribunal also observed that, as the occupation of ‘Chef’ (ANZSCO[20] Code 351311) was subject to caveats for the purposes of any business nomination approval under regulation 2.72, the timeframe for the processing of that application was far from certain.

    [20]    ANZSCO: Australian and New Zealand Standard Classification of Occupations; Latest issue release 26 June 2013. See

20. Accordingly, given that Le Montage Pty Ltd had lodged its business nomination application on 14 July 2017, the Tribunal invited the applicant to explain why it should adjourn the review in her favour. The applicant responded that she had two daughters (aged 24 and 19) studying English and at Tafe respectively, and that her youngest daughter (aged 14 years) was in Year 8 of secondary school in Australia. As a result, she was concerned about potential disruptions to their education.

21. The Tribunal noted that, whilst it understood the applicant’s desire to maintain the continuity of her children’s education, there were other considerations that offset these concerns, such as the potential for her adult daughters to apply for Student visas in their own right to continue their education. The applicant responded that they had not been in a position to do so.

22. Correspondingly, the Tribunal also observed that whilst secondary school was important, the applicant’s youngest daughter was enrolled in Year 8. Consequently, unlike Year 12 and the impact upon the completion of the Higher School Certificate, any changes to her place of education were likely to be less disruptive to her overall education. The applicant did not offer any particular response to this issue at the hearing.

23. After taking evidence from the applicant her representative made a number of oral submissions outlining why the Tribunal should exercise its discretion under paragraph 363(1)(b) of the Act in the applicant’s favour. For example, the representative submitted that the Tribunal hearing invitation letter was sent to the applicant’s former migration agent on 20 June 2017, the same day on which the representative had informed the Tribunal of her appointment as the new authorised recipient. As a result, the representative stated that it was only some time later that she learned of the hearing scheduled for 17 July 2017.

24. The Tribunal noted that the notification regarding the applicant’s change of appointed representative / authorised recipient was emailed to it after the hearing invitation had been sent to the applicant’s former migration agent. Notably, when the Tribunal sent its hearing invitation, it had sent this invitation to the last address for service provided by her in connection with the review and had, thereby, discharged its statutory obligation in this regard.

25. In any event, the Tribunal observed that the question of where it had sent the hearing invitation letter on 20 June 2017 did not alter the fact that Le Montage Pty Ltd did not lodge its business nomination application with the Department until 14 July 2017, approximately 6 months after the applicant’s visa application was refused on 17 January 2017, and 9 months after the applicant was first put on notice by the Department in 2016 that Amfah (Aust) Pty Ltd did not have an approved nomination in place for the purposes of her Subclass 457 visa application.

26. The representative informed the Tribunal that in July 2017 the Department was taking approximately 7- 8 months to process business nomination applications. As a result, she representative submitted that these timeframes were not within the applicant’s control and justified the exercise of the discretion to adjourn the review in her favour.

27. The Tribunal observed that the effect of the representative’s request would delay the conduct of the review until approximately March 2018, at which time the changes announced in April 2017 to the Subclass 457 visa program were due to come into effect. As a consequence, the Tribunal asked the representative to indicate what period of time she was suggesting the Tribunal should adjourn the review.

28. The representative responded “I am not asking you to wait any longer”[21] because the Tribunal had discretion to remit the matter to the Department on the basis that there was a pending business nomination application. In particular, the representative advised that a Senior Member of the Tribunal had determined in 2016 that the Tribunal had power to make such a direction in these circumstances. However, when in response to a question from the Tribunal the representative identified the Member who had purportedly done so, the person identified, in fact, was not a Senior Member of the Tribunal.

    [21]    At 20:21 of the audio recording  

29. The Tribunal informed the Tribunal that it was well established that it is not bound by the decisions of other Members[22], especially in circumstances where it had not been provided with relevant AAT Case file reference to ascertain the similarities between the current application for review and another Member’s decision.  The Tribunal pointed out that it was not particularly helpful to receive a submission that it could remit the application to the Department on the basis of a pending business nomination application without the relevant AAT Case file reference.

    [22]    See Pasula v Minister for Immigration and Anor (Smith FM)[2010] FMCA 219

30. In any event, the Tribunal also noted that if the representative was correct about the basis upon which the other Member had remitted the application to the Department, then it appeared that an impermissible direction may have been made. The Tribunal remarked that, given the issue before it was whether the applicant met the requirements of paragraph 457.223(4)(a), it would be unlikely to follow a decision for which it had no AAT Case file reference.

31. As a result, the representative undertook to revisit the decision she believed was applicable and to identify the relevant reference for the Tribunal. The representative, therefore, additional time following the hearing to provide a written submission about this matter to the Tribunal. She explained that she was not well prepared as the business nomination application had only been lodged with the Department the Thursday before the Tribunal hearing.[23]      

    [23]    At 23:50 of the audio recording  

32. The Tribunal agreed to grant the representative additional time until 31 July 2017 for this purpose. It also asked the representative to address the issue why, given the relevant case law, it would be unreasonable for the Tribunal to decline to exercise its discretion in the applicant’s favour. These circumstances included: the fact that the applicant was put on notice that there was issues with her then sponsoring employer’s nomination in October 2016; the refusal of visa application in January 2017; the applicant’s new sponsoring employer had lodged its business nomination on 14 July 2017; and the representative’s advice that it takes the Department 7 – 8 months to finalise such applications.

33. The representative advised the Tribunal that, in her experience, Le Montage Pty Ltd was a large employer whose past business nomination applications had been routinely approved by the Department. Nevertheless, she agreed to provide a submission addressing these matters.

34. At this point of the hearing, the Tribunal confirmed with the applicant that she understood that, unless the Tribunal agreed to adjourn the review, if it found that there was no approved business nomination in her favour, the application for review would fail. The applicant responded that she understood this would be the outcome.

    The Post-Hearing Submissions       

35. Following the hearing, on 31 July 2017[24] the applicant’s representative provided to the Tribunal a written submission addressing the exercise of the Tribunal’s discretion to adjourn the review. In support of the review, she also included a letter of support from Le Montage Pty Ltd (dated 21 July 2017[25]) outlining the importance of the applicant to its business. The representative also provided the details of three previous business nomination applications lodged by Le Montage Pty Ltd on 23 December 2016, 5 January 2017 and 9 March 2017, which were approved by the Department on 21 and 23 February 2017, and 8 April 2017, respectively.   

    [24]    T1, f.57-61

    [25]    T1, f.57

36. In addition, the representative submitted that, if the applicant were required to leave Australia to await the outcome of the pending business nomination application before the Department, this would create operational difficulties for Le Montage Pty Ltd, interrupt her children’s education and require her to incur substantial short-term accommodation costs. Accordingly, the representative argued that in the interests of the sponsoring company, together with compassionate consideration of the applicant’s family circumstances, the Tribunal should adjourn the review pending finalisation of the business nomination application that was lodged on 14 July 2017.    

37. Notably, the representative did not cite any AAT Case file reference for the Tribunal decision she claimed had remitted a Subclass 457 visa application to the Department on the basis of a pending business nomination.

38. As a result, and having regard to these submissions and the evidence before it, the Tribunal decided to adjourn the review until the Department had processed the pending business nomination application lodged by Le Montage Pty Ltd on 14 July 2017. This was on the basis that the evidence before it indicated relatively speedy departmental processing of the 2016 and 2017 past business nominations lodged by Le Montage Pty Ltd. It was also in the expectation that the representative would inform the Tribunal promptly of the outcome of that application once it became known.   

    The Tribunal Invitation to Comment on or Respond to Information

39. Significantly, when no further information was provided to the Tribunal by late 2017 regarding the outcome of the business nomination application lodged by Le Montage Pty Ltd, the Tribunal undertook its own enquiries regarding the status of this application. Significantly, departmental records revealed that Le Montage Pty Ltd withdrew its business nomination application in favour of the applicant on 16 November 2017.

40. As a result, on 30 January 2018[26] the Tribunal invited the applicant under section 359A of the Act to comment on / respond to certain information before it, including departmental and Tribunal records relating to her visa application and the associated business nomination applications lodged by Amfah (Aust) Pty Ltd, RM Traders Australia Pty Ltd, and Le Montage Pty Ltd none of which had a business nomination approved in her favour. In particular, the Tribunal invited the applicant to comment upon the departmental records that indicated that the most recent business nomination lodged in her favour by Le Montage Pty Ltd on 14 July 2017 had been withdrawn by this company on 16 November 2017.

    [26]    T1, f.64-67

41. The Tribunal invitation stated that if it relied on this information, it might find that the applicant was not the subject of an approved nomination under section 140GB of the Act that has not ceased. Therefore, the Tribunal might find that the applicant did not meet the requirements of paragraph 457.223(4)(a) at the time of decision. In addition, the invitation stated that if the Tribunal made this finding, it might also find that the applicants cannot meet the requirements of clause 457.321 because they were not the members of the family unit of a person who holds a Subclass 457 visa at the time of decision. The letter further observed that if the Tribunal made these findings, it would have no alternative other than to affirm the decision under review.

1. The invitation also specifically stated that the Tribunal must receive the applicants’ comments / response by 13 February 2018 (or within the period allowed for this purpose), or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

2. The applicant responded (through her representative) on 13 February 2018 by enclosing a letter from Martini + Co Werribee Pty Ltd stating that it proposed to employ her as a full-time cook. This company also stated that it would lodge the relevant applications before 26 February 2018. Accordingly, the applicant requested that the Tribunal not make a decision on the review until this associated nomination was lodged and decided by the Department.     

3. The Tribunal responded to this request on 13 February 2018 advising the applicant that, whilst it had carefully considered the matter, it had decided to decline her request and that its reasons for doing so would be set out in its decision record.[27]

   [27]    T1, f.70-72

   The Tribunal Discretion to Adjourn the Review

4. Under subsection 363(1)(b) of the Act the Tribunal has discretion to adjourn the review from time to time where this would be appropriate to an applicant’s circumstances.

5. In considering its discretion, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[28] and Manna v Minister for Immigration and Citizenship[29] where the Courts have held that it is not required to indefinitely defer its decision-making processes.

   [28] [2002] FCA 617

   [29] [2012] FMCA 28

6. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[30] 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[31] which also considered this issue.

   [30] [2013] HCA 18 (8 May 2013)

   [31] [2014] FCAFC 1 (4 February 2014)

7. Correspondingly, the Tribunal has taken into account the decision in Chen v Minister for Immigration and Border Protection[32] where the Court specifically upheld a decision by the Tribunal (differently constituted) not to defer its decision in relation to an application for review in respect of paragraph 457.223(4)(a) until the Department had finalised a business nomination application pending before it.

   [32] [2016] FCCA 2351

8. The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[33], 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”.

   [33] [2011] FCA 759 at [22]

9. Accordingly, the evidence and submissions regarding the exercise of the Tribunal’s discretion under subsection 363(1)(b) of the Act are discussed follows:

   (a)The Applicant’s Awareness of the Relevant Issues:

10. The Tribunal notes that in this case the applicant provided a copy of the primary decision record (dated 17 January 2017) relating to the refusal of her Subclass 457 visa application with the application for review she lodged on 21 February 2017. In particular, this document stated that the applicant had been advised on 27 October 2016 that her proposed sponsoring employer, Amfah (Aust) Pty Ltd, did not have an approved nomination in place for her. It also set out the delegate’s finding that the applicant did not meet the requirements of paragraph 455.223(4)(a) in the Regulations, one of the essential criteria for the grant of the Subclass 457 visa.

11. In addition, the Tribunal observes that the applicant appointed a registered migration agent to assist her when she lodged her application for review lodged on 21 February 2017[34]. Further, the applicant notified the Tribunal on 20 June 2017[35] that she had appointed her current representative, also a registered migration agent, for the purposes of the review.  

    [34]    T1, f.12

    [35]    T1, f.28-29

12. Given this evidence, the Tribunal is satisfied that the applicant has had the benefit of professional advice from a registered migration agent since she lodged her application for review in February 2017.

13. In turn, the Tribunal is satisfied that the applicant has been aware for approximately 16 months (since late October 2016) that her visa application was likely to fail because she did not have an approved business nomination in her favour. In addition, the Tribunal finds that the applicant has also been aware for approximately 13 months that her visa application was refused because she did not meet the requirements of paragraph 457.223(4)(a) at the time of decision. It also acknowledges that the applicant has taken steps since the refusal of her visa application to find an alternative sponsoring employer to address this issue.

14. As a consequence, the Tribunal is satisfied that this is not a case where the applicant lacked awareness of the issues in dispute, or where she has not had the opportunity to take steps to meet the paragraph 457.223(4)(a) of the Regulations since lodging her application for review.

    (b)The Applicant’s Requests for the Review to be Adjourned:

15. In the present matter, the applicant has made several separate requests for the Tribunal to exercise its discretion to adjourn the review in her favour.

16. Firstly, as part of her application for review, the applicant’s former migration agent provided evidence that RM Traders Australia Pty Ltd had lodged applications with the Department for approval as a standard business sponsor and for a business nomination on 21 February 2017. In other words, this was an implicit request to the Tribunal to adjourn the review pending the outcome of these applications.

17. However, as set out in the Tribunal section 359A invitation, departmental records indicated that o 23 March 2017 RM Traders Australia Pty Ltd withdrew the business nomination application it had lodged in favour of the applicant. The Tribunal observes that the applicant did not dispute this factual matter in the response she provided to the Tribunal on 13 February 2018.

18. The applicant’s second request to adjourn the review was made on 14 and 17 July 2017 through the provision of evidence one business day before the scheduled Tribunal hearing that Le Montage Pty Ltd had lodged a business nomination application in her favour on 14 July 2017. The purpose of this evidence was to foreshadow the applicant’s intention to request an adjournment of the review at the Tribunal hearing on 17 July 2017 pending the outcome of this particular business nomination application.

19. Initially, the representative indicated at the Tribunal hearing that she was not requesting the adjournment of the review, as she believed there was Tribunal precedent to remit the matter to the Department on the basis of the pending business nomination application lodged by Le Montage Pty Ltd. However, after a discussion ensued regarding the legal basis for the Tribunal to adopt this course of action, the representative requested an adjournment of the review for two weeks. This was so that the representative could obtain the AAT Case file reference that supported her legal arguments, as well as time to prepare written submissions to the Tribunal regarding the favourable exercise of its discretion under paragraph 363(1)(b) of the Act.

20. On 31 July 2017 the representative provided submissions setting out why the Tribunal should adjourn the review under paragraph 363(1)(b) of the Act in the applicant’s favour. At this point, she did not provide the AAT Case file reference that she had previously indicated supported her legal contention that the Tribunal could remit this matter to the Department pending the outcome of the business nomination application lodged by Le Montage Pty Ltd. Given this, together with the evidence and the submissions that have been put forward in the period between 31 July 2017 and 13 February 2018, the Tribunal is satisfied that the applicant and her representative have since abandoned this particular legal argument for the purposes of this application for review.

21. Notably, on the basis of the evidence provided with the representative’s submission on 31 July 2017 regarding the speed with which the Department had processed other business nomination applications lodged by Le Montage Pty Ltd during the period 23 December 2016 to 9 March 2017, all of which were approved by 8 April 2017, the Tribunal considered that it would be appropriate to exercise its discretion in the applicant’s favour and to await the outcome of the business nomination this company had lodged on 14 July 2017.   

22. However, after hearing nothing from the applicant or her representative by late 2017, the Tribunal discharged its duty to enquire by examining the relevant departmental database regarding the status of the business nomination application lodged by Le Montage Pty Ltd on 14 July 2017.

23. Significantly, as set out in the Tribunal section 359A invitation, departmental records indicated that Le Montage Pty Ltd withdrew this business nomination on 16 November 2017. The Tribunal observes that the applicant did not dispute this factual matter in the response she provided to the Tribunal on 13 February 2018.

24. Importantly, neither the applicant nor her representative informed the Tribunal of this change to her circumstances.

25. Finally, on 13 February 2018 in response to the Tribunal’s section 359A invitation, the applicant provided evidence that she had found a new employer, Martini + Co Werribee Pty Ltd, to sponsor her for the purposes of her Subclass 457 visa application. However, the evidence the applicant submitted from this business indicated that it needed time to prepare the relevant documents for its business nomination and, whilst it planned to lodge the relevant applications with the Department before 26 February 2018, it had not yet done so. Nevertheless, the applicant (through her representative) specifically requested that the Tribunal not proceed to any decision until this associated nomination application had been lodged and decided by the Department.

26. Significantly, beyond putting forward the letter from Martini + Co Werribee Pty Ltd (dated 12 February 2018[36]), neither the applicant nor her representative provided any submissions regarding the appropriateness of adjourning the review having regard to the history of this matter before the Department and the Tribunal.         

    [36]    T1, f.67

27. As noted previously, at the Tribunal hearing on 17 July 2017 the applicant’s representative advised that the Department was taking 7 – 8 months to process the business nomination applications that had been lodged with it during 2017.  

28. As a result, the request made on 13 February 2018 was, effectively, a request for the Tribunal to not only adjourn the review until 26 February 2018 (by which time Martini + Co Werribee Pty Ltd hoped to have lodged the relevant business nomination application with the Department), but to adjourn the review for possibly another 7 – 8 months to allow the Department to determine that application. In other words, to adjourn the review until approximately late September / October 2018. This would mean the adjournment of the review for a period of approximately 20 – 21 months after the visa application was originally refused.

29. In this case, the Tribunal observes that the applicant has found four different employers to sponsor her for the Subclass 457 visa (Amfah (Aust) Pty Ltd, RM Traders Australia Pty Ltd, Le Montage Pty Ltd and Martini + Co Werribee Pty Ltd) none of which has had a business nomination approved in the applicant’s favour at the time of decision. Indeed, Martini + Co Werribee Pty Ltd have indicated that it needs additional time to prepare its documentation for such an application.   

30. Accordingly, what flows from this set of facts is that the applicant does not have an approved nomination in her favour at the time of decision.

31. The Tribunal has also taken into account whether the evidence of the applicant’s prior employment with Le Montage Pty Ltd during 2017, and the letter of support from Martini + Co Werribee Pty Ltd, point to the exercise of its discretion in her favour. 

32. In this case, and as noted previously, neither the applicant nor her representative advised the Tribunal that Le Montage Pty Ltd had withdrawn its business nomination application on 16 November 2017. This was despite the oral and written requests that were made in July 2017 for the review to be adjourned pending departmental determination of this business nomination application on the basis that this company had previously been successful in receiving approval for like business nomination applications.

33. In addition, the Tribunal observes that the letter of support (dated 12 February 2018) from Martini + Co Werribee Pty Ltd does not indicate whether the applicant is currently employed in this business. There is also little in this evidence to indicate the nature of the business operated by Martini + Co Werribee Pty Ltd and / or why it has particular need of the applicant’s skills that would justify adjourning the review pending the departmental determination of  any business nomination application lodged by this company. 

34. The Tribunal notes that, in terms of its statutory obligations under section 2A of the Administrative Appeals Tribunal Act 1975, at times it is not always possible at a practical level to give equal weighting to the requirements set out in this provision. For example, what is considered fair and just in one case may mean that the final decision is not always arrived at quickly. Similarly, the capacity of the Tribunal to meet these obligations at an organisational level will vary from time to time.

35. Relevantly, the requirement for the Tribunal to be ‘fair’ also requires it to conduct the review having regard to the procedural code set out in ‘Division 5 – Part 5 reviewable decisions: conduct of review’ of the Act, which includes sections 359A, 360 and 363.

36. In this case, the matter was scheduled for a hearing approximately 5 months after the application for review was lodged. The hearing was also held on 17 July 2017, at which time the Tribunal discussed the issues arising in the review. In addition, the Tribunal decided, based on the applicant’s submissions, to adjourn the review to await the outcome of the pending business nomination lodged by Le Montage Pty Ltd. Further, the Tribunal wrote to the applicant under section 359A once it became aware that Le Montage Pty Ltd had withdrawn its business nomination application in her favour.

37. As a consequence, this is a case where the applicant is now seeking to pursue sponsored employment with a fourth employer at the time of decision. Yet, there is little in the evidence to indicate the extent to which Martini + Co Werribee Pty Ltd has taken steps to lodge the required applications with the Department to sponsor her for the Subclass 457 visa.

38. The Tribunal gives weight to the fact that this has taken place against a backdrop where the applicant has been aware since she was notified in October 2016 that her visa application was likely to prove unsuccessful as she did not have an approved nomination in place. It has also occurred in circumstances where the applicant has been aware that her visa application was refused on 17 January 2017 because she did not have an approved nomination, as required by paragraph 457.223(4)(a).

39. Importantly, the Tribunal observes that if it were to adjourn the review to allow Martini + Co Werribee Pty Ltd to take the required steps to sponsor the applicant for a Subclass 457 visa then this would further delay the conduct of the review. This is because, even if Martini + Co Werribee Pty Ltd lodged applications for approval as a standard business sponsor and a business nomination in the applicant’s favour with the Department before 26 February 2018 as indicated, it is a matter of speculation as to when the Department would finalise any standard business sponsor and/or business nomination applications lodged by this company, or what the final outcome of those applications might be.

40. Given this, the Tribunal was not satisfied on 13 February 2018, and is not satisfied at the time of decision, that the favourable exercise of its discretion under paragraph 363(1)(b) of the Act in this case would align with the legislative objects set out in section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975.

41. Consequently, against the history of this particular matter, the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to be especially pertinent. This is because there is little in the evidence the applicant has presented during the review, and at the time of decision, to suggest that it would be necessarily unreasonable for the Tribunal to bring this matter to an end.

42. Accordingly, for the reasons set out in this decision record, the Tribunal is not satisfied that it should adjourn the review, as requested.

    (c)The Applicants’ Personal Circumstances:

43. The Tribunal has also considered whether there is anything in the personal circumstances of the applicant and her family that would point to exercise of its discretion to adjourn the review in her favour.

44. The Tribunal acknowledges that the applicant has relevant qualifications and an employment background in the hospitality industry as chef / cook. It has also considered the letter of support from Martini + Co Werribee Pty Ltd, which indicates that it intends to sponsor and employ the applicant as a cook in its business.  

45. In addition, the Tribunal has taken into account the representative’s submissions (dated 31 July 2017) that if the applicant is required to relocate to Malaysia to wait for her Subclass 457 visa, this would interrupt and delay her children’s education. In particular, notwithstanding the limited nature of the evidence provided to substantiate these claims, the Tribunal accepts that the second, third and fourth-named applicants’ (‘the secondary applicants’) have been enrolled with Australian education providers in 2017, and that they would each prefer to remain in Australia with their current friends to pursue their education and future here. The Tribunal has also had regard to the secondary applicants’ potential to contribute to the Australian community following the completion of their individual studies in Australia.

46. As a result, the Tribunal accepts that the applicant and her family would prefer to remain in Australia, given the time they have spent here. It also understands the applicants’ personal goals and notes that these are not, as such, without merit. The Tribunal further recognises that the applicants’ current circumstances hold personal significance for each of them individually and as a family unit.

47. On the other hand, the applicant and / or representative did not provide any evidence in support of her personal circumstances in their section 359A response to the Tribunal on 13 February 2018 that would justify the exercise of the Tribunal discretion under paragraph 363(1)(b) in their favour. Moreover, the history of this matter is that the applicant has already provided had more than one opportunity to provide evidence that she meets paragraph 457.223(4)(a), the criterion in issue.

48. Importantly, the Tribunal further notes that the personal circumstances that have been put forward on behalf of the applicants have little bearing on whether the applicant is likely to meets the requirements of paragraph 457.223(4)(a) within the reasonably foreseeable future.

49. Accordingly, the Tribunal is not satisfied that the evidence put forward regarding the applicants’ personal circumstances, whether considered on an individual or cumulative basis, constitute particularly persuasive grounds for adjourning the review for the period of time that has been requested, or any other reasonable period.

    Summation:

50. As outlined above, in considering its discretion under paragraph 363(1)(b) of the Act, the Tribunal has had regard to the applicant’s responses and submissions to the Department and the Tribunal from October 2016 to 13 February 2018.

1. In addition, the Tribunal has taken into account that there is judicial guidance to the effect that it is not bound to defer its decision indefinitely. The Tribunal also observes that the purpose of the review process, including the discretion under paragraph 363(1)(b) of the Act, is not directed at facilitating an applicant’s ability to achieve de facto temporary residence in Australia. Nor is it to provide applicants with time in which to explore their migration options to achieve either long-term temporary or permanent residence in Australia.

2. In this case, the applicant has made repeated requests for the review to be adjourned largely based on her claims to have found a new sponsoring employer for the purposes of her Subclass 457 visa application. Initially, the request was based on the business sponsorship and nomination applications lodged by RM Traders Australia Pty Ltd on 21 February 2017 and then the business nomination lodged by Le Montage Pty Ltd on 14 July 2017. Both of these applications were subsequently withdrawn by the relevant company.

3. By 13 February 2018 the applicant requested the adjournment on the basis that Martini + Co Werribee Pty Ltd wanted time in which to lodge a business nomination in her favour, in circumstances where the evidence indicated that Martini + Co Werribee Pty Ltd was still preparing documentation for possible lodgment before 26 February 2018. This request was to adjourn the review until any such business nomination application was determined by the Department. In other words, for an unspecified period.

4. As such, the request was  made in circumstances where there remains some degree of uncertainty surrounding as to whether Martini + Co Werribee Pty Ltd will meet its self-nominated deadline of 26 February 2018 for this purpose, the departmental processing time for any such application, and what the final outcome might be.

5. Further, the Tribunal considers that the sentiment expressed in Ghori’s case is particularly relevant when it is being asked to adjourn the review for an unspecified period of time in circumstances where the applicant is not the subject of an approved nomination by an approved standard business sponsor. The Tribunal is not satisfied that these matters support the discharge of the Tribunal’s statutory obligations under under section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975

6. Therefore, the Tribunal is not satisfied that the evidence before it warrants the exercise of its discretion under subsection 363(1)(b) of the Act to adjourn the review in the applicant’s favour. As a result, in the particular circumstances of this case the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review.

7. As a consequence, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

100. The issue in the present case is whether the applicant meets the requirements of paragraph 457.223(4)(a) in subclause 457.223(4). The relevant version of this regulation is extracted in the attachment to this decision.

The Requirement for an Approved Nomination

101. In order for the applicant to meet the requirements of paragraph 457.223(4)(a) there must be an approved nomination of an occupation relating to her by a standard business sponsor that has not ceased.

102.   According to the primary decision record the applicant provided with her application for review[37], the visa application was refused because Amfah (Aust) Pty Ltd did not have an approved nomination in place for the applicant.[38] The applicant also confirmed this during her oral evidence before the Tribunal. As a result, the Tribunal is satisfied that Amfah (Aust) Pty Ltd does not have an approved nomination in favour of the applicant at the time of its decision in February 2018.

[37]    T1, f.41 reverse

[38] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451

103.   In relation to the business nomination applications lodged by RM Traders Australia Pty Ltd on 21 February 2017 and Le Montage Pty Ltd on 14 July 2017, these applications were respectively withdrawn on 23 March 2017 and 16 November 2017. Therefore, the Tribunal finds that RM Traders Australia Pty Ltd and Le Montage Pty Ltd do not have an approved nomination in place for the applicant at the time of decision.

104.   The Tribunal further notes that the applicant indicated at the Tribunal hearing on 17 July 2017 that she understood that without an approved business nomination her application for the Subclass 457 visa would fail.

105.   In relation to any potential business nomination application lodged by Martini + Co Werribee Pty Ltd with the Department in 2018, the evidence before the Tribunal is that this business is yet to do so at the time of decision. 

106.   The Tribunal further observes that, even if such an application were lodged as suggested before 26 February 2018, there is little in the evidence to suggest that any business nomination application lodged by Martini + Co Werribee Pty Ltd would be approved imminently, or in the reasonably foreseeable future. 

107.   As a result, the Tribunal finds that the applicant’s proposed employer and sponsor, Martini + Co Werribee Pty Ltd, do not have an approved nomination in place for her at the time of its decision in February 2018.

108.   Accordingly, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

109. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of paragraph 457.223(4)(a) and clause 457.223 at the time of its decision in February 2018. As a consequence of this finding, it is unnecessary for the Tribunal to consider the issue of whether the applicant meets the remaining requirements for a Subclass 457 visa.[39]

[39]    The Court in Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596 held that once the Tribunal has established that at least one essential criterion had not been satisfied, it was not obliged to make findings in relation to any other criteria.

110.   To meet clause 457.321 the applicant’s children, the secondary applicants, must be the members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

111.   As the applicant does not satisfy the primary criteria for a Subclass 457 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 457.321 and, therefore, the criteria for a Subclass 457 visa.

Other Matters – Ministerial Intervention under section 351 of the Act

112. The Tribunal does not have the legal power to waive the mandatory criteria prescribed for a Subclass 457 visa. The only person who is able to waive the criteria is the Minister, where he believes it is in the public interest to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.

113. Although the applicant did not specifically request that the Tribunal refer the current matter to the Department for consideration by the Minister under section 351 of the Act, given the various claims she has made, the Tribunal has considered whether this would be an appropriate case in which to do so.

114.   The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

115.   However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain in Australia.

116.   As noted previously, the Tribunal understands the applicants’ desire to remain in Australia. As a result, it does not seek to dismiss or diminish the concerns the applicants have expressed regarding the impact of the refusal of the Subclass 457 visa application upon them.

117.   In addition, in considering whether to refer this particular case to the Minister, the Tribunal has had regard to the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

118.   As outlined above, the applicant provided the Tribunal with a copy of the primary decision record that set out the basis for the refusal of her visa application when she lodged the review on 21 February 2017. In addition, the applicant has been represented in relation to review by a registered migration agent since the application for review was lodged. As a result, the applicant has been aware of the basis for the refusal of her visa application for approximately 13 months at the time of the Tribunal’s decision.

119. The central issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(a) in Schedule 2 of the Regulations in terms of being the subject of an approved business nomination lodged by a standard business sponsor.

120.   The Tribunal notes that according to the departmental policy guidelines in the ‘Procedures Advice Manual 3’, the Subclass 457 visa programme is “designed to enable employers to address labour shortages by bringing in genuinely skilled workers where they cannot find an appropriately skilled Australian.”[40]

[40]    See PAM - Sch2 Visa457 - Temporary Work (Skilled) - 457 visa applications

121.   Accordingly, the Tribunal gives some weight to this underlying purpose given the fact that, despite finding more than one employer willing to lodge a business nomination in her favour, the applicant is still not the subject of an approved business nomination by an approved standard business sponsor at the time of decision.

122.   The Tribunal has also taken into account the applicants’ presence in Australia. It therefore understands that the applicants may have a natural desire to remain in Australia for a further extended period, if possible. The Tribunal also acknowledges that the applicant’s inability to do so is likely to affect her and her family at a financial, emotional, social and / or personal level, and it does not seek to dismiss or diminish any concerns they may have about such these matters lightly.

123. On the other hand, the evidence before the Tribunal to support referral to of this matter to the Minister under section 351 of the Act is somewhat limited.

124.   In this case, the applicant’s representative referred in her submission (dated 31 July 2017) to the applicant’s skills as a chef. She also attached statement from Le Montage Pty Ltd stating that the applicant had become an integral part of their business operations. However, this business subsequently withdrew its business nomination application in favour of the applicant. There is therefore little in this evidence to support referral to the Minister.

125.   Likewise, the statement from Martini + Co Werribee Pty Ltd is limited to its willingness to sponsor the applicant and its need to prepare the required documents for this purpose. On the other hand, this evidence does not articulate this company’s need for the applicant’s skills in its business in any particular detail.

126.   Accordingly, the Tribunal has little in the way of current evidence before it regarding the applicant’s employment and the needs of her employer at the time of decision. There is also little evidence that would substantiate any potential hardship the applicants might suffer if they were required to return to Malaysia.

127.   The Tribunal further notes that the Ministerial guidelines do not focus on the economic or financial hardship non-citizens might face if they do not meet the criteria for the grant of a particular visa, and are then required to return to their country of origin. Rather, the emphasis in the Ministerial guidelines is on “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit”.[41]

[41]    Paragraph 4 of the ‘Minister’s Guidelines on Ministerial Powers’

128.   Correspondingly, there is little in the evidence to suggest that there are compassionate circumstances regarding the applicants’ ages and / or health and / or psychological state that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to them if they were not permitted to remain in Australia. There is also little in the evidence to suggest that the applicant’s family unit would be forced to break apart because one of its members was required to leave, whilst another was allowed to remain in Australia, if they are not granted visas to remain in Australia.

129.   In addition, there is no claim or any evidence before the Tribunal that if the applicants return to Malaysia they would face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. As a result, there is little to suggest that Australia would be in breach of its international obligations pursuant to the Refugees Convention and the Refugees Protocol, Article 3 of the Convention on the Rights of the Child, the Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights.

130. The Tribunal also observes that this is not a case involving circumstances that the legislation does not anticipate. The requirement in paragraph 457.223(4)(a) for an applicant to be the subject of an approved nomination has been deliberately included in the Regulations. In that sense, this is not a case where there are clearly unintended consequences as a result of the operation of the legislation. Indeed, paragraph 457.223(4)(a) specifically contemplates that a Subclass 457 visa application will fail if this criterion is not met at the time the decision.

131. As a result, in terms of the evidence that has been presented to the Tribunal, there is little in the applicants’ current circumstances, either on an individual or cumulative basis, that brings them within the non-binding guidelines that apply for the purposes section 351 of the Act, or otherwise, to warrant referral to the Minister under this provision.

132.   Accordingly, on balance, the Tribunal is not satisfied that the evidence before it is sufficient to establish a case that is particularly exceptional, unusual, compelling or compassionate in line with the relevant Ministerial guidelines to warrant referral to the Minister. Nor is it satisfied that this evidence indicates that the application of the relevant legislation has led to unfair or unreasonable results in this particular case. The Tribunal is also not satisfied that the evidence points to any circumstances outside the non-binding Ministerial guidelines that would point to such a referral being appropriate in this case.

133. Therefore, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.

134. Nevertheless, the Tribunal notes that the applicants can still make a request directly to the Minister with additional evidence to support their claims for Ministerial intervention under section 351 of the Act should they choose to do so.

CONCLUSION

135.   Accordingly, based on the findings made above, the Tribunal has no alternative but to affirm the decision under review.

DECISION

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

Danica Buljan
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 she  or she has the skills that are necessary to perform the occupation — the applicant demonstrates that she  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 her or her English language proficiency — the applicant demonstrates her 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.