Nowakowski (Migration)

[2022] AATA 1612

Nowakowski (Migration) [2022] AATA 1612 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mariusz Lukasz Nowakowski
Mrs Malgorzata Katarzyna Nowakowska

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  1901020

HOME AFFAIRS REFERENCE(S):          BCC2018/957810

MEMBER:Antonio Dronjic

DATE:5 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2022 at 10:38am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – painting trades worker – subject of approved nomination – refusal of related nomination application affirmed on review – nominator’s intention to apply for judicial review – ongoing employment – nomination application for another subclass visa in progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 362A, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 28 February 2018.

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 (Cth) (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 4 January 2019 on the basis that cl.457.223 (4)(a) was not met because the business nomination application lodged by the first named applicant’s prospective employer, M.J. Harris Painting Pty Ltd, was not approved by the Department.

5. The applicants applied for review of the primary decision on 16 January 2019 and provided a copy of the Department’s decision to the Tribunal.

6. On 21 February 2022, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a telephone hearing scheduled for 28 March 2022.

7. On 27 February 2021, the applicant submitted a copy of the skills assessment letter from Trades Recognition Australia (TRA) dated 23 March 2020 as evidence of successful skills assessment application for a nominated occupation of a Painting Trades Worker (ANZSCO 332211)

8. On 28 February 2022, the Tribunal wrote the following letter to the applicants:

   …

   On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 was introduced. Among other things, it repealed and replaced r.2.72 of the Migration Regulations 1994 (the Regulations), which set out the criteria for nominations relating to Subclass 457 (Temporary Work (Skilled)) visa applications, and also repealed the Subclass 457 (Temporary Work (Skilled)) visa.

   This means that a new application for approval of a nomination for a proposed Subclass 457 (Temporary Work (Skilled)) visa holder cannot be made after 18 March 2018.

   It is a requirement for the grant of the visa that you are the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of your file suggests that you are not the subject of an approved nomination by a standard business sponsor, and that a new application for approval of a nomination in support of your Subclass 457 (Temporary Work (Skilled)) visa application can no longer be made.

   Without an approved nomination, you will not meet an essential criterion for the grant of the visa. This would mean that the decision under review must be affirmed.

   If you are now the subject of an approved nomination for a Subclass 457 (Temporary Work (Skilled)) visa, please provide us with evidence about this. Alternatively, if your circumstances have changed and you no longer wish to continue with this application for review, please complete the enclosed withdrawal from and return it us…

9. On 21 March 2022, the applicant submitted a copy of his payslip dated 15 March 2022 as evidence of his current employment at M.J. Harris Painting Pty Ltd.

10. On 25 March 2022, the applicants’ representative wrote to the Tribunal seeking that the Tribunal adjourn the review (including the scheduled hearing) because:

    ·The representative received instructions from the applicants to immediately commence judicial review proceedings in respect of the decision of the Tribunal to affirm the Department’s decision to refuse the nomination application of M.J. Harris Group Pty Ltd. In her submissions, the representative stated that the applicants’ previous adviser did not respond to the s 359 letter from the Tribunal, resulting in the loss of a hearing right for M.J. Harris Group; that the previous representative did not advise the review applicant and his employer of the decision of the Tribunal made in September 2021 and that the current representative is of the view that the judicial review application has reasonable prospects for success;

    ·The representative lodged a request pursuant to s 362A of the Migration Act for access to any written material given or produced to the AAT for the purposes of the review and contained on its file, including a copy of the relevant Department files, if held by the Tribunal. The representative noted that they are yet to receive any documents from either the Department or the Tribunal pursuant to taking its decision; and

    ·The representative indicated that they may wish to put forward evidence to the Tribunal in support of a request for a referral to the Minister for his personal intervention under s 351 of the Migration Act 1958 (Cth).

11. After carefully considering the above request, the Tribunal informed the applicants that the Presiding Member decided not to postpone the hearing or adjourn the review. The Tribunal note that on 25 March 2022 the applicants were provided with the full access to written material given or produced to the AAT for the purposes of the review, including a copy of the relevant Department files held by the Tribunal.  

12. The first named applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The applicants were represented in relation to the review. The representative attended the Tribunal telephone hearing.

13. In his evidence, the applicant confirmed that:

    ·that the nomination application made by M.J. Harris Group Pty Ltd was refused by the Department on 5 December 2018.

    ·M.J. Harris Group Pty Ltd applied for review of this decision at the Tribunal on 21 December 2018.

    ·In September 2021 the Tribunal affirmed the decision not to approve nomination made by M.J. Harris Group Pty Ltd.

14. He gave evidence that he learned some three weeks prior to the Tribunal hearing that the Tribunal affirmed the decision not to approve nomination made by M.J. Harris Group Pty Ltd.

15. He stated in his evidence that he commenced employment at M.J. Harris Group Pty Ltd in December 2017 and is still employed as a full-time painter at the same business. He further stated that his employer did not apply for approval of Subclass 482 nomination. However, some two years ago, M.J. Harris Group Pty Ltd lodged an application for nomination approval for a permanent Subclass 186 visa. This application is still pending with the Department.

16. Finally, the applicant confirmed in his evidence that, as at the time of the Tribunal hearing, a nomination of an occupation for a Subclass 457 visa in relation to the applicant has not been approved.

17. The applicants’ representative repeated her request that the Tribunal adjourns its review pending the outcome of the judicial review application related to Tribunal decision to affirm the Department’s decision to refuse the nomination application made by M.J. Harris Group Pty Ltd.

18. The Tribunal noted that it considered whether to adjourn this matter under subsection 363(1)(b) of the Act and wait for the decision from the Federal Circuit Court and decided not to do so. The Tribunal noted that this is not a case where the Tribunal is being asked to adjourn the review to await an outcome which is imminent. The Tribunal observed that the judicial review application has not been lodged as of the time of the Tribunal hearing and that it is unclear when will judgment be delivered. Further, it is uncertain on the evidence before the Tribunal that the judgment would be favourable to the applicants in the present circumstances of this case.

19. The Tribunal noted that the representative indicated in her submissions that the applicants may wish to put forward evidence to the Tribunal in support of a request for a referral to the Minister for his personal intervention under s 351 of the Migration Act 1958 (Cth).

20. Upon the request, the Tribunal granted the applicants additional time until 31 March 2022 to provide additional submissions and documentary evidence.

21. On 4 April 2022, the applicants’ representative wrote to the Tribunal advising that they have been instructed ‘not to expend any of the client’s funds and resources on a submission addressing Ministerial intervention at this time’.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

23. 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.

24. Based on the evidence before it, including the applicant’s oral evidence, the Tribunal is not satisfied that the first named applicant is, at the time of my decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named visa applicant that has not ceased. Accordingly, the Tribunal find that the first named applicant does not satisfy cl.457.223 (4)(a).

25. 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.

26. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second applicant does not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

    DECISION

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

    Antonio Dronjic
    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.