OTTAVIANO (Migration) - [2021] AATA 2593

OTTAVIANO (Migration) [2021] AATA 2593 (22 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Marco Ottaviano
CASE NUMBER:  1823462
HOME AFFAIRS REFERENCE(S):          BCC2017/3820492
MEMBER:Alison Mercer
DATE:22 July 2021
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 22 July 2021 at 2:55pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related position nomination application affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)
CASES
Chen v MIBP [2016] FCCA 2351
Hasran v MIAC (2010) 183 FCR 413
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 October 2017.
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.
The delegate refused to grant the visa on 9 August 2018 on the basis that cl 457.223(4)(a) was not met because the nomination of the applicant by his employer, Roan Investments Pty Ltd, had been rejected by the Department and the applicant therefore did not meet the requirement to be the subject of an approved nomination by a Standard Business Sponsor (SBS).
The Tribunal received a review application from the applicant on 14 August 2018. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Adam Khaze, as his representative and authorised recipient for correspondence.
On 22 June 2021, the Tribunal wrote to the applicant via his agent to invite them to attend a telephone hearing on 20 July 2021 to give evidence in support of the application.
On 28 June 2021,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: OTTAVIANO (Migration) [2021] AATA 2593
Case: [2021] AATA 2593
Decision Date: 22 July 2021

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), by an applicant whose employer, Roan Investments Pty Ltd, had a nomination application refused by the Department. The employer sought review of this refusal with the Tribunal, but the Tribunal affirmed the refusal decision. The applicant failed to respond to the Tribunal's invitation to comment, despite being granted additional time. The Tribunal, constituted by Alison Mercer, was required to determine whether the applicant met the requirements for the visa, specifically concerning the approved nomination.

The primary legal issue before the Tribunal was whether the applicant could satisfy clause 457.223(4)(a) of the Migration Regulations 1994, which requires an approved nomination by a standard business sponsor that has not ceased. The Tribunal considered the impact of legislative amendments introduced on 18 March 2018, which repealed the subclass 457 visa and replaced it with the subclass 482 visa, introducing new criteria for nominations. The Tribunal had to determine if any future nomination, even if approved, could satisfy the requirements for a subclass 457 visa application that had not been finally determined.

The Tribunal reasoned that due to the legislative amendments of 18 March 2018, any nomination lodged after that date could only support an application for a subclass 482 visa or for existing subclass 482 or 457 visa holders, as per regulation 2.72(1)(b). As these circumstances did not apply to the applicant, the Tribunal concluded that a nomination lodged after the legislative changes could not support an application for a subclass 457 visa that had not been finally determined. The Tribunal also had regard to case law, including *Minister for Immigration and Citizenship v Li* [2013] HCA 18, *Huo v Minister for Immigration and Multicultural Affairs* [2002] FCA 617, *Manna v Minister for Immigration and Citizenship* [2012] FMCA 28, and *Chen v Minister for Immigration and Border Protection* [2016] FCCA 2351, which supported the view that the Tribunal was not required to indefinitely defer its decision-making process.

Consequently, the Tribunal found that the requirements for the standard business sponsor stream had not been met. As no claims were made regarding other streams and there was no evidence the applicant could satisfy those criteria, the Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCERequirement for an approved nomination 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. As set out in the Tribunal’s s.359A letter of 28 June 2021, the Department and Tribunal’s records indicate that the applicant’s employer, Roan Investments Pty Ltd, made a nomination of the applicant which was refused by the Department. Although the applicant’s employer sought review of that refusal decision with the Tribunal, the employer’s review application for the refusal decision was affirmed by the Tribunal (differently constituted) on 30 May 2021. The Tribunal notes that it provided additional time to the applicant to provide information, even though he failed to respond to the Tribunal’s s.359A letter, but he elected not to do so. Significantly, the Tribunal is of the view that even if the applicant were able to secure a new nomination, this would not satisfy cl.457.223(4)(a). This is because of legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination from another employer, even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined. In the circumstances, it would be futile for the Tribunal to further delay the making of the decision on this application for review. In deciding not to defer making its decision, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements 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 held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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