Mosslee Pty. Ltd. ATF Savahl Family Trust (Migration)

[2020] AATA 468

Mosslee Pty. Ltd. ATF Savahl Family Trust (Migration) [2020] AATA 468 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mosslee Pty. Ltd. ATF Savahl Family Trust

VISA APPLICANTS:  Mr Bye Mohamed Shehzad Munsoor
Mrs Bibi Mehnaaz Munsoor
Miss Aisha Munsoor

CASE NUMBER:  1616167

DIBP REFERENCE(S):  BCC2016/1591387

MEMBER:Phoebe Dunn

DATE:6 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 January 2020 at 9:42am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – nomination ceased – no current approved or pending nomination – claimed compelling reasons for waiving PIC 4014 requirements – staffing difficulties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359AA
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.224, 457.321, Public Interest Criterion 4014

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 29 April 2016.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223, which requires the visa applicant to satisfy one of the 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 visas on 14 September 2016 on the basis that cl.457.224(1) was not met because the delegate was not satisfied that the primary visa applicant met Public Interest Criterion 4014 (PIC 4014), because the primary visa applicant was affected by a risk factor specified in PIC 4014(4)(b), and the delegate did not consider there were grounds for waiving the requirements of PIC 4014.

5. The review applicant, represented at the hearing by Mr Mogamad Barkee Savahl, appeared before the Tribunal on 12 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Savahl, Mr Savahl’s wife and joint business owner of the nominating business, and Mr Bye Mohamed Shehzad Munsoor, the primary visa applicant, who appeared before the Tribunal by telephone.

6. The review applicant was represented in relation to the review by its registered migration agent, Mr Madan Gaindhar.

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 before the Department was whether the visa applicant met the requirements of cl.457.224(1), specifically whether the primary visa applicant met the requirements of PIC 4014. However, before the Tribunal, the issues affecting the primary visa applicant have shifted. The central issue now before the Tribunal is whether the primary visa applicant meets the requirements of cl.457.223(4)(a), in that he has a current approved nomination by an approved standard business sponsor that has not ceased. If the primary visa applicant is not the subject of an approved nomination, there is no need for the Tribunal to consider whether he meets the requirements of PIC 4014, or whether those requirements should be waived.

9. At the hearing, Mr and Mrs Savahl gave some background to the current circumstances, noting in particular their concerns that the delays in processing the nominee’s visa application had unfairly prejudiced the nominee and negatively affected their business, a Halal smallgoods producer.  Mr and Mrs Savahl stated that they were both getting older, that Mrs Savahl was not well, and that they really needed the skills of the nominee to support them in the business.  Mr Savahl explained the difficulties in recruiting qualified staff, and that it was impossible to find appropriately qualified people to perform the role.  Mr Savahl tabled before the Tribunal written submissions outlining why the nominee is suitable for the role and ‘indispensable’ to their business. Mr and Mrs Savahl considered that there were compelling reasons to waive the requirements of PIC 4014 and could not understand why submissions before the delegate had been rejected.

10. At the hearing, the Tribunal noted that a requirement for the grant of a Subclass 457 visa is that there is a current approved nomination by a standard business sponsor that has not ceased, and that this was the issue before the Tribunal.  The Tribunal emphasised that if there was no current approved nomination, the Tribunal had no discretion in the circumstances. The Tribunal contacted the nominee (the primary visa applicant) by telephone and reiterated these issues.

11. The Tribunal then raised the issue formally in accordance with s.359AA of the Act, explaining that it was raising information that would be the reason, or a part of the reason, for affirming the decisions that are under review in respect of the nominee and the secondary visa applicants.  The Tribunal noted that it was raising the information, not because the Tribunal had already made up its mind, but to give the review applicant and the nominee an opportunity to comment on or respond to the information in order to help theTribunal make up its mind. The Tribunal explained how the information was relevant and the consequences of it, as follows.

12. The Tribunal stated that the particulars of the information are that:

    a.It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that the nominee is the subject of a nomination by a standard business sponsor approved under s.140GB of the Act.

    b.A review of the nominee’s file and the Departmental records suggests that the nominee is not the subject of a current approved nomination by a standard business sponsor or a pending application with the Department or on review with the Tribunal.  The Tribunal noted that the most recent nomination previously approved for the nominator, Mosslee Pty Ltd, in respect of the nominee expired on 26 July 2017.

    c.The Migration Amendment (Temporary Skill Shortage visa and complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants.  The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

13. The Tribunal explained that this information is relevant to the review because it suggests that the nominee (the primary visa applicant) is not the subject of a current approved nomination and that a new application for approval of a nomination cannot be made.

14. The Tribunal explained that if the Tribunal relies on this information in making its decision, the Tribunal may find that the nominee is not the subject of a current approved nomination, and that this would mean that the nominee does not satisfy a requirement for the grant of the visa and this would be the reason or part of the reason for the Tribunal to affirm the decision that is under review.

15. The Tribunal further explained that if the Tribunal relies on this information in making its decision, it would also mean that the Tribunal may find that the family members of the nominee (the second and third named applicants) do not meet a requirement of the visa, as they would not be members of a family unit of a person (the primary applicant) who holds a subclass 457 visa granted on the basis of meeting the primary criteria for the grant of the visa, as required under cl.457.321. This would also mean that the Tribunal must affirm the decisions under review for the secondary applicants.

16. The Tribunal invited the review applicant and the nominee to comment on or respond to the information, stating that they may seek additional time to comment on or respond to the information.  The review applicant and the nominee requested a short adjournment of 15 minutes, which was granted by the Tribunal.

17. Upon resumption of the hearing Mr and Mrs Savahl noted that as a consequence of the three year exclusion period imposed on the nominee it would have been futile for them to continue to apply for additional nominations, as these would have expired before the expiry of the exclusion period and then the Subclass 457 visa was abolished.  Mr and Mrs Savahl noted that there were strong reasons for waiving the requirements of PIC 4014, and they were anticipating that their waiver submissions would be accepted, and that this should have been the outcome at first instance.  Mr and Mrs Savahl reiterated the difficulties in securing and retaining appropriately qualified staff in the business, and indicated they had been subjected to bigotry and religious discrimination when advertising for staff, given the nature of the business.  Mr and Mrs Savahl accepted that there was no current approved nomination in respect of the nominee. 

18. The Tribunal reiterated that while the circumstances were difficult and frustrating, unfortunately the Tribunal had no discretion in these circumstances, and was limited to considering whether the primary visa applicant meets the criteria for the grant of the visa, namely whether  he is the subject of a current approved nomination by a standard business sponsor.  The Tribunal noted that it was open to the review applicants to make a complaint to the Commonwealth Ombudsman.

    Requirement for an approved nomination

19. 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.

20. On 17 December 2015 the review applicant, Mosslee Pty Ltd, was approved as a standard business sponsor for the second time, valid from 17 December 2015 to 17 December 2020.  On 26 July 2016, a nomination application lodged by the review applicant on 29 March 2016 identifying the nominee in the nominated position was approved by the Department.  The Tribunal notes that this was the third time the Department had approved a nomination by the review applicant in relation to the nominee.  This approved nomination ceased on 26 July 2017.

21. Departmental and Tribunal records indicate that the nominee is not the subject of a current approved or pending Subclass 457 nomination application with the Department or on review with the Tribunal.  The impact of the cessation of the most recent approved nomination in respect of the nominee on 26 July 2017 is that the nominee is not the subject of an approved nomination that has not ceased.

22. For these reasons, the requirements of cl.457.223(4)(a) are not met.

23. 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 primary visa applicant would be able to satisfy the specific criteria for those streams.

24. The only basis of the application of the second and third named visa applicants is that they are members of the family unit of a person who holds a Subclass 457 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.457.321.  As the primary visa applicant does not meet the primary criteria and has not been granted a Subclass 457 visa, the decision to refuse the applications of the second and third named visa applicants must also be affirmed because they do not satisfy cl.457.321.

    DECISION

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

    Phoebe Dunn
    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.