Nguyen (Migration)

[2022] AATA 2160

Nguyen (Migration) [2022] AATA 2160 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nguyen Khoi Nguyen

CASE NUMBER:  1836986

HOME AFFAIRS REFERENCE(S):          BCC2018/4305567

MEMBER:Alison Mercer

DATE:7 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 7 June 2022 at 11:22am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Computer Network and Systems Engineer– applicant is not the subject of an approved nomination by an approved standard business sponsor – nomination refusal decision is no longer under review by the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994,Schedule 2, cl 482.212

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 Home Affairs on 4 December 2018 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 October 2018. At that time, Class GK contained one subclass: subclass 482 (Temporary Skill Shortage). The criteria for a subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Computer Network and Systems Engineer (ANZSCO code 263111).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations, which required (amongst other things) that the applicant was the subject of an approved nomination by an approved standard business sponsor. The delegate noted that a natural justice letter was sent to the applicant noting that he did not have an approved nomination, and could not link a new approved nomination (dated 21 November 2018) to his subclass 482 visa application.

4. The Tribunal received a review application from the applicant on 17 December 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Lisa Le, as his representative and authorised recipient for correspondence.

5. On 3 March 2022, the Tribunal wrote to the applicant via his agent to invite him to a telephone hearing on 13 April 2022. On 8 April 2022, the applicant responded to indicate that he would attend the hearing.

6. On 29 March 2022, the Tribunal wrote again to the applicant via his agent, to invite him to comment on information held by the Tribunal, pursuant to s.359A of the Act.

7. The Tribunal advised the applicant that the particulars of the information were:

   • In the applicant’s subclass 482 visa application, he was identified in a nomination made by his proposed employer, Angelic Sound & Lighting Pty Ltd, for the occupation of Computer Network & Systems Engineer;
   • his visa application was refused by a Department officer who determined that he

   did not meet cl.482.212, which required that he was the subject of an approved nomination;

   • both the applicant and Angelic Sound & Lighting Pty Ltd sought review of the Department’s refusal decisions; and
   • on 11 August 2021, the Tribunal (differently constituted) made a decision that it had

   no jurisdiction to review the Department’s decision to refuse the nomination made by

   Angelic Sound & Lighting Pty Ltd. This was because the company was deregistered

   on 23 May 2021.

8. The Tribunal advised that this indicated that the applicant was not presently the subject of an approved nomination by an approved standard business sponsor, and that would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse to grant him a subclass 482 visa. The Tribunal stated that this was because one of the criteria contained within subclass 482, namely clause 482.212, required that at time of decision, the applicant was the subject of an approved nomination by a standard business sponsor, but it appeared that he was not. The Tribunal further advised that its legal view was that any new nomination of the applicant, whether by Angelic Sound & Lighting Pty Ltd, or another employer, could not satisfy cl.482.212. The Tribunal noted that if the applicant did not meet cl.482.212, then this would be the reason (or part of the reason) to affirm the decision to refuse to grant him a subclass 482 visa, as this was a mandatory criterion to be granted a subclass 482 visa by an employer who was an approved standard business sponsor, and the nomination had not ceased. The Tribunal invited the applicant provide a response or comments in writing about this information by 12 April 2022, and noted that failure to do so would mean he lost his entitlement to a hearing and the hearing of 13 April 2022 would be cancelled.

9. On 8 April 2022, the applicant provided the following email response to the Tribunal’s s.359A letter:

   I am writing about the invitation to respond to information. In 2021, all businesses were affected negatively because of the Covid - 19 pandemic, Victoria was in a lockdown completely, we all had a very bad time im term of finance including Angelic Sound & Lighting Pty Ltd and myself. The company tried to overcome the situation. The director of the company MR Phuc Hoa Ly tried to keep the business running by providing more services in health care field which is only type of work allowed and make profit at that time. The company has been running under different business name Angelic Disability Services. We all tried to overcome the Covid - 19 pandemic and recover.

   Therefore, I would like to attend the hearing scheduled for 13 April 2022 to provide more evidence and explanation why I should have an exception and get my visa 482 granted

10. The applicant appeared before the Tribunal by telephone on 13 April 2022 to give evidence and present arguments.  

11. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. The applicant told the Tribunal that he understood that his employer’s nomination of him was refused by the Department because the employer had not undertaken the required labour market testing in the specified manner. He said that he had not been aware that the company had been deregistered, as the employer had not told him that. He told the Tribunal that he was in regular contact with his employer since moving to Tasmania, and his job was still available. The applicant said that when he checked the company’s registration a few days before the hearing, it was registered.

13. In response to the Tribunal’s query, the applicant said that he worked for his original employer until 2020, when COVID19 happened and Melbourne shut down. He then moved to Tasmania for a couple of months to work on a project for his employer, but was unable to return to Melbourne due to border closures. He confirmed that he remained living in Tasmania and was getting by on his savings and doing some work as a subcontractor. He reiterated that although his original employer had changed what the business did, a pivot required due to the COVID19 pandemic affecting its original business model, his employer still wanted to him to work in the business. The applicant said that his former employer had moved into the healthcare/disability service area. In response to the Tribunal’s query, the applicant said that his nominated role was still open to him, as the employer still needed an IT person in the company, and was waiting for him to obtain his visa and return to Melbourne.

14. The Tribunal discussed with the applicant the fact that it needed to consider the legal implications of the employer company having apparently been re-registered with ASIC, as the Tribunal (differently constituted) had found in July 2021 that it had no jurisdiction to review the employer’s nomination refusal decision as the company had been deregistered in May 2021. It noted that even if the Tribunal’s jurisdiction to continue to review that nomination refusal decision was enlivened, there was no guarantee that the nomination would be approved by the Tribunal. The Tribunal reiterated that cl.482.212 could only be satisfied if the original nomination made by the original nominating employer was approved. It undertook to clarify this legal issue and write to the applicant with its preliminary conclusions, and to invite him to comment before the Tribunal made a final decision on his review application.

15. On 22 April 2022, the Tribunal wrote to the applicant to advise him that as noted in the Tribunal’s earlier s.359A letter to him dated 29 March 2022, another Tribunal Member made a decision on 11 August 2021 that the Tribunal had no jurisdiction to review the Department’s decision not to approve Angelic Sound and Lighting Pty Ltd’s nomination of him as a Computer Network and Systems Engineer (ANZSCO code 263111) because the company had been deregistered on 23 May 2021. The Tribunal stated that an extract from the ASIC website on the Tribunal’s file confirmed that the company was deregistered on 23 May 2021 and it appeared that it was not registered as at the time of the Tribunals’ decision on 11 August 2021.

16. The Presiding Member acknowledged that the ASIC website indicated that Angelic Sound and Lighting Pty Ltd was now registered again as a company. The Tribunal advised the applicant that as stated in its s.359A letter of 29 March 2022, his subclass 482 visa was refused by the Department on the basis that the nomination of him by Angelic Sound and Lighting Pty Ltd had been refused by the Department and therefore he did not meet cl.482.212(1) of Part 482 of Schedule 2 to the Migration Regulations (1994). The Tribunal noted that its s.359A letter also advised the applicant that the review application made by Angelic Sound and Lighting Pty Ltd was no longer under review by the Tribunal due to a decision by another Tribunal Member on 11 August 2021 that the Tribunal had no jurisdiction to review the nomination refusal decision. The Tribunal noted that, as discussed at the hearing, unless the applicant was the subject of an approved nomination by Angelic Sound and Lighting Pty Ltd, he could not meet cl.482.212(1) and therefore could not be granted a subclass 482 visa.

17. The Tribunal advised that the Presiding Member had considered whether the fact that Angelic Sound and Lighting Pty Ltd had re-registered as a company since 11 August 2021 changed the above scenario but was of the opinion that a re-registration of a company after a ‘no jurisdiction’ decision did not automatically re-enliven the Tribunal’s jurisdiction to review the nomination refusal decision in respect of Angelic Sound and Lighting Pty Ltd. This was because, at the time of the Tribunal’s no jurisdiction decision of 11 August 2021 in the relation to the nomination review, Angelic Sound and Lighting Pty Ltd was deregistered and ceased to exist as a legal entity (s 601AD(1) of the Corporations Act), which was evident from the ASIC and ABN information on the Tribunal file 1834237 (the nomination review). As a result, as the company was the review applicant, deregistration meant at the time of the Tribunal’s decision on 11 August 2021, there was no person who had standing to continue with the review application for the nomination. Accordingly, the no jurisdiction decision of 11 August 2021 by another Tribunal Member was legally correct at the time of the decision and the Presiding Member in your case saw no error with it.

18. The Tribunal stated that the Presiding Member in this case did not believe that re-registration of the company after the no jurisdiction decision automatically restored the Tribunal’s jurisdiction; rather, she considered that the other Tribunal Member was functus officio after making the no jurisdiction decision on 11 August 2021 (this means that the earlier Tribunal Member had exercised her power correctly in making a no jurisdiction decision and had no power to now reopen that decision). The Tribunal noted that while it was possible to challenge this decision by way of judicial review in the Federal Court of Australia, the only person who had legal standing to do so was the review applicant to whom that decision relates; that is, Angelic Sound and Lighting Pty Ltd. In the absence of any evidence that the company had done so, the Presiding Member was of the view that the Tribunal’s no jurisdiction decision of 11 August 2021 in relation to Angelic Sound and Lighting Pty Ltd was legally correct and was still legally operative. This meant that there was no approved nomination of the applicant by Angelic Sound and Lighting Pty Ltd, and no prospect of one being approved as the decision by the Department to refuse to approve it was no longer under review by the Tribunal. The Tribunal stated that this meant that the applicant did not meet cl.482.212(1) and thus did not meet cl.482.212 as a whole, and therefore could not be granted a subclass 482 visa.

19. The Tribunal invited the applicant to make any comments he wished to make by 6 May 2022 and advised that the Presiding Member would consider any comments or response received before making a final decision on the matter.

20. On 6 May 2022, the applicant responded by email, as follows:

    …

    I am writing in relation to the invitation to comment.

    As I understand, the reason of the refusal of my Temporary Skill Shortage visa was The company Angelic Sound and Lighting Pty Ltd had been deregistered on 23 May 2021. But due to the COVID-19 pandemic, Victoria was in a total lockdown, most of businesses was shut down with no profits was made, but the company still had to pay for its employees to support their livings. In addition, no one knew how long the lockdown will last. Thats was why Ly Phuc Hoa the director of the company had to make his hard decision is to close the company temporary as he also has a young family to feed, he could not afford to keep the company going, we all could not blame on him at all. At the moment, when the covid situation shows better signs and the company have come up with a solution to overcome this and recover the business. I have been working with them for almost 4 years. The company always has an IT job to offer me which I have a lot of experience. The director of the company promised that he will do whatever it takes to have me working for them.

    There are many exceptions and change in law to help people who have been facing difficulties due to the Covid pandemic to overcome. I was in desperate situation over the last two years because of Covid pandemic, now things are getting better and the company has a good job to offer me, It would be a pity if I cannot take it.

    Could you please consider an exception on my visa application? Or

    are there any kind of documents which the company or myself can provide to support my visa application?

    Thank you very much.

    …

21. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

22. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

23. As noted in the Tribunal’s s.359A letter dated 29 March 2022, the nomination identified in the applicant’s visa application was made by Angelic Sound and Lighting Pty Ltd. This nomination was refused by the Department. Although the company sought review of that decision with the Tribunal, the Tribunal (differently constituted) made a decision on 11 June 2021 that it had no jurisdiction to review the nomination refusal decision, as the company had been deregistered on 25 May 2021. This means that the nomination refusal decision is no longer under review by the Tribunal, despite the fact (as set out above) that the company was subsequently re-registered and is now operational again (albeit in a different field to its original business operations).

24. The Tribunal has some sympathy for the applicant and his employer, as the challenges faced by the employer arising from the global COVID19 pandemic could not have been predicted, and the applicant had no control over actions taken by his employer in response to the pandemic. It also appears that the employer has now re-registered its company, found a new area of business in which to operate, and (according to the applicant) its nominated role for the applicant is still available to him. Unfortunately, these factors do not alter the Tribunal’s legal conclusion that the nomination identified in the visa application by Angelic Sound and Lighting Pty Ltd has not been approved, and there appears no prospect that it can be approved, given it is no longer under review by the Tribunal.

25. Moreover, cl.482.212(1) does not confer on the Tribunal any discretion to overlook or waive its requirements, even where there are compassionate and/or compelling circumstances in the case, as is arguably the case here.

26. Accordingly, the Tribunal must find that the requirements of cl 482.212(1) are not met.

27. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

28. The Tribunal acknowledges the applicant’s query in his response of 6 May 2022 about what other visa options he and/or his employer might have, but is unable to provide immigration advice or assistance to applicants before it, and recommends that the applicant seek the advice of a registered migration agent and/or a migration lawyer about his options. The Tribunal notes, however, that it is open to the applicant to seek Ministerial intervention pursuant to s.351 of the Act if he believes that he has unique or exceptional circumstances that would warrant the Minister for Immigration granting him a visa even though he does not meet the subclass 482 visa criteria and his review application has been unsuccessful at the Tribunal. The Ministerial intervention guidelines can be found on the Department’s website:

    Ministerial intervention (homeaffairs.gov.au)

    DECISION

29. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Alison Mercer
    Member