MULAKKAL (Migration)

[2019] AATA 3614

MULAKKAL (Migration) [2019] AATA 3614 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shameer Babu Mulakkal

CASE NUMBER:  1517679

DIBP REFERENCE(S):  BCC2015/2183843

MEMBER:Alison Mercer

DATE:28 June 2019

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 June 2019 at 2:04pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– standard business sponsor stream– nomination was refused – not the subject of an approved nomination – abolition of the subclass 457 visa subclass – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 363
Migration Regulations 1994, r 2.72, cl 457.223, 457.224

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection[2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 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 30 July 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 12 December 2015 on the basis that cl.457.223(4)(a) was not met because the nomination of him made by an Australian employer, Ashley’s Health Care Pty Ltd, was refused by the Department on 12 December 2015. Accordingly, the delegate found that the applicant was not the subject of an approved nomination made by an approved standard business sponsor, as required by cl.457.223(4)(a) and thus he could not meet cl.457.224 as a whole.

5. The Tribunal received a review application from the applicant on 21 December 2015, which was accompanied by a copy of the delegate’s decision.

6. The matter was constituted to a Tribunal Member on 4 July 2018.

7. The applicant appeared before the Tribunal on 10 July 2018 to give evidence and present arguments.

8. The applicant told the Tribunal that he was aware that his employer, Ashley’s Health Care Pty Ltd, lodged an application for review with the Tribunal against the Department decision to refuse its nomination of the applicant, but that the Tribunal (differently constituted) had made an unfavourable decision on that review application. The Tribunal confirmed that the Tribunal (differently constituted) had dismissed Ashley’s Health Care Pty Ltd’s review application on 16 August 2017 and the refusal of its nomination had been affirmed as a result of this. The applicant confirmed that he was not the subject of an approved nomination by that employer, or any other approved standard business sponsor. 

9. The applicant told the Tribunal that he was currently employed as an IT Network Administrator with another company. The Tribunal discussed with the applicant that, given the subclass 457 visa program was closed on 18 March 2018, even if he were to obtain another nomination from this employer, it could not be used to satisfy cl.457.223(4)(a) as (essentially) only a nomination application made before 18 March 2018 could meet cl.457.223(4)(a). The applicant indicated that he understood this but asked that the Tribunal consider deferring its decision, as he currently had a subclass 489 visa application pending with the Department, lodged on 4 April 2018, which he expected to be granted in due course.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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

12. 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.

13. It was not disputed by the applicant that the nomination of him made prior to 18 March 2018 by Ashley’s Health Care Pty Ltd was refused by the Department on 12 December 2015 and that that decision was affirmed by the Tribunal (differently constituted) on 16 August 2017.

14. It was also not disputed by the applicant that since that time, he had not been the subject of any other approved or pending nomination made by Ashley’s Health Care Pty Ltd or any other employer.

15. The Tribunal notes that, as discussed with the applicant, significant legislative changes were introduced and took effect on 18 March 2018. These included the abolition of the subclass 457 visa subclass and class, and its associated nomination approval process (see the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (the Amending Regulations)). In essence, this means that any nomination now obtained by the applicant (assuming he could obtain one from a new employer) would not meet the requirements of cl.457.223(4)(a).

16. Accordingly, the Tribunal does not consider it reasonable to defer its decision any further under s.363(1)(b) of the Act (which gives the Tribunal the power to adjourn the review). In reaching this conclusion, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, 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 [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915, where analogous issues were discussed.

17. In this case, the Tribunal does not consider it reasonable to further adjourn the case to await the outcome of the applicant’s separate subclass 489 visa application, noting that the timeframe and outcome are not yet known, despite a number of requests from the Tribunal to the Department for a likely timeframe for finalisation. Nor does it consider it reasonable to adjourn the review for the applicant to secure a new nomination where that nomination could not be used to satisfy cl.457.223(4)(a) due to the legislative amendments outlined above.

18. Accordingly, in relation to this application, the Tribunal finds that the requirements of cl.457.223(4)(a) are not met.

19. 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

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

    Alison Mercer
    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.